Re R - [2014] NSWSC 1810

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 million, plus the costs of funds management quantified at $710,204, plus treatment and other out-of-pocket expenses, plus a contribution to legal costs. On 14 July 2006 the Protective Commissioner (now the NSW Trustee & Guardian ("NSW Trustee")) received $4,388,488.05 as a result of the settlement.

Move to Batemans Bay

The plaintiff had married B in 2001. It was a second marriage for both of them. They lived in a property in Gladesville. Before the accident they had purchased an investment property near Batemans Bay. The plaintiff's wife had family in Batemans Bay. The investment property was not suitable for their current needs. The Protective Commissioner approved the use of funds for the purchase of a property in Catalina, a suburb of Batemans Bay. That property was purchased by the Protective Commissioner for the plaintiff. He and his wife moved to the property.

The purchase was made after a report was obtained by an authorised visitor who recommended the purchase. (An authorised visitor is a person appointed by the Protective Commissioner, or now the NSW Trustee, to provide a report to the Protective Commissioner, or now the NSW Trustee, on the state of mind, bodily health and general condition of a person and his care and treatment, (Protected Estates Act 1983, s 79 and NSW Trustee and Guardian Act 2009 (NSW), s 123)). The authorised visitor described the plaintiff as presenting as a gentleman who clearly displayed marked cognitive deficits and seemed unable to concentrate on the conversation. She reported that whilst the plaintiff did not express many views or contribute to the discussion, he did express a keenness to move to the Batemans Bay area as he felt that the current house at Gladesville was too noisy.

The plaintiff lived with his wife in the Catalina property until 25 March 2011. He accuses B of compelling him to carry out excessive physical labour, of giving him access only to a small fraction of the weekly allowance provided by the Protective Commissioner, and of using his funds for her own benefit and the benefit of her family. He says he was mistreated and laughed at.

The plaintiff now says that his former wife and the Office of the Protective Commissioner tricked him into moving to Batemans Bay. When asked to explain how the Protective Commissioner tricked him into moving to Batemans Bay he said:

"One day [B] says let's go and visit my father in Batemans Bay [viz. B's father]. I said alright let's go. We went there and spent there a couple of days. In the meantime [B] bought the house there. The house that she wanted. ... And she just says from now on we live here.

Q. So how did the Protective Office trick you to moving to Batemans Bay?

A. They support each other. They make decisions and talk about what to do with my life and how to arrange my life. [The answer then continued unresponsively]."

The plaintiff made a statement on 20 June 2011 that at the end of January in that year B drove him to the house of his eldest daughter. The plaintiff had two daughters of his first marriage and a third daughter born to a subsequent de facto relationship prior to his marriage to B. The plaintiff stated that he stayed with his daughter and visited the house of his brother ("P") where he met up with other brothers and a sister. He stated that he stayed with P for a couple of days and after that his daughter called and told him that B had said that he should return to Batemans Bay straight away. He stated that he told his daughter that he had not yet seen other members of his family and would like to spend some time with them. He stated that on the next day his daughter's husband collected him in the car and he understood he would be taken to the Croatian Club at Punchbowl to see some old friends and play some pool, but instead was driven back to Batemans Bay.

One of the difficulties in this case is to know how much of what is written as statements of the plaintiff is truly his statement. The matter is complicated because the plaintiff is Croatian and has only a rudimentary grasp of English. At the start of his evidence in chief the plaintiff was permitted to read a statement that he said he had prepared. The statement included a similar description of the above events, except that it was unclear when it was that the plaintiff said that the event occurred. I attempted to clarify this with the plaintiff through the interpreter, but the answers were confusing and contradictory.

Battles with the NSW Trustee

After the plaintiff was removed from the Batemans Bay property by his brother, he took up residence in a room made available to him in his brother's house. His brother assumed the role of carer and gave up work to do that. Ultimately, the brother was paid a carer's allowance and rent for providing food and accommodation. But there were continuous battles between the plaintiff and his brother on the one hand, and the NSW Trustee on the other.

The plaintiff commenced proceedings for an apprehended violence order against his wife B. He was represented by a solicitor. The solicitor doubted that the plaintiff was able to give proper instructions. The plaintiff was adamant that the application should proceed and would not agree to an adjournment. The Magistrate indicated that she would require the plaintiff to give evidence before she would consider making an interim order and arrangements had to be made for the presence of an interpreter. Before the interpreter arrived the case was called on. The solicitor explained the circumstances of the case and that the plaintiff feared intimidation by his wife, but the Magistrate indicated that if the plaintiff's evidence was in support of the submission which was outlined, she would still not be prepared to make an order. An undertaking was provided by the wife not to contact the plaintiff.

On 27 May 2011 the plaintiff wrote to the NSW Trustee complaining about many matters. One of his complaints was "Why does your solicitor ... want me to give up on the AVO against [B]?". He then reiterated that:

"I have requested an investigation to be made in regards to my life in Batesman Bay [sic] and to my money which [B] took while it was intended for my needs. Where did it go and how was it spent? I am telling you that I have lived like a dog over there. I neither had a carer nor a wife. Most of the money intended for my needs was spent on [B's] family and relatives while I had to crawl beneath the house and cry while [B's] relatives ate and drank in my house whilst I was depraved [sic] of all of my human rights. ..."

The theme that the plaintiff had been treated like a dog and deprived of his human rights was a frequent theme throughout the plaintiff's evidence whether responsively to questions or not.

On 27 May 2011 the NSW Trustee noted that a request had been made for payments of $2,600 per week consisting of a carer's allowance of $800 per week; accommodation, board and lodging of $600 per week; living expenses of $700 per week; and additional personal income of $500 per week. Ultimately, the NSW Trustee approved payments totalling $1,950 per week consisting of a carer's allowance of $800 per week to be paid to P, a further $400 per week to be paid to P for providing the plaintiff with accommodation and food and $50 for petrol on production of receipts. The plaintiff was provided with a personal allowance of $700 per week. This was the same amount as had been provided for him when he was in his wife's care. She had received a carer's allowance of $1,320 per fortnight. The plaintiff complained to the NSW Trustee that B only ever gave him $50 per week out of his $700 per week allowance. That is not an issue I can decide. B is not a party and did not give evidence.

The plaintiff complained bitterly to the NSW Trustee about delays in paying P a carer's allowance and rent and in reimbursing expenses. He complained that the Office of the Protective Commissioner had given B his money and left him with nothing.

On 21 November 2011 the plaintiff's weekly allowance was reduced to $500 because his funds were being depleted. The NSW Trustee wrote to the plaintiff referring to a meeting on 9 November 2011 at which they discussed the plaintiff's current level of expenditure and his need to have sufficient savings to meet expenses for the rest of his life. He will never qualify for a Centrelink pension. The NSW Trustee advised that:

"The current rate of depletion of your investment funds is 8.5 per cent which is significantly above the depletion guideline of 5 per cent recommended by our Financial Planning Unit. A decision has been made to reduce your weekly allowance from $700 to $500 effective from 25 November 2011."

The allowance was later reinstated to $700 per week.

At about the same time the NSW Trustee refused to release funds for payment of lawyers whom the plaintiff sought to instruct and stated that in its opinion of the lawyers' instructions were being given by the plaintiff's brother P, and not by the plaintiff who did not have capacity to give those instructions. Relations between the plaintiff and the NSW Trustee became increasingly bitter. The plaintiff blamed the stress arising from his dealings with the NSW Trustee on a heart attack he suffered in March 2012.

Ms Corinne Roberts' first report

On 10 November 2011 the plaintiff was examined by a consulting clinical neuropsychologist, Ms Corinne Roberts. The appointment was organised by the plaintiff and his brother P, although the plaintiff says he expected to see someone else. The purpose of the examination was to assess the plaintiff's cognitive functioning and his capacity with regard to making decisions on his own behalf, in particular his capacity to manage his own finances. The plaintiff refused to allow the assessment to be conducted in the absence of his brother. A Croatian interpreter was present. Ms Roberts reported that P was instructed not to provide assistance or comment during the cognitive testing and was able to refrain from doing so, even though the plaintiff was inclined to look to him for help. During the interview, P assisted at times with providing background information that the plaintiff could not retrieve.

In his affidavit commenting upon Ms Roberts' reports the plaintiff stated that he did not look to his brother for help, but wanted his brother to remain in the room with him as a witness to the assessment, and that his brother did not in any way participate in or influence the assessment. For reasons which follow, I have serious reservations about the extent to which the plaintiff's affidavit responding to Ms Roberts' reports reflected the plaintiff's own articulation of his thoughts.

Ms Roberts considered both the plaintiff's testamentary capacity and his ability to manage his own affairs. In relation to the latter, she concluded that:

"[The plaintiff] sustained an extremely severe traumatic brain injury which resulted in significant cognitive and behavioural changes. Although it is likely that there has been some improvement in his cognitive functioning over time, he continues to demonstrate significant deficits affecting high level receptive and expressive language, working memory (ability to hold information in the mind and mentally manipulate it or to keep track of several lines of thought simultaneously), short-term memory, and executive functioning (concrete thinking, difficulty shifting set/inflexibility, problems with planning and organizing).

Many of the reports and letters made available to me suggested that these cognitive deficits have been impacting on his ability to take in and retain new information, to hold various facts in his mind and consider them carefully, to fully comprehend and deal with more complex issues, particularly those of a less concrete nature, to weigh up information that does not accord with his current views, and to plan ahead or decide on a course of action that is oriented towards the future rather than simply reacting to current events. The available information also suggested that these difficulties were likely to be exacerbated when [the plaintiff] was under stress.

As far as I am aware he has not demonstrated any capacity to manage his financial affairs to date, although it is his assertion that this is because he has not been given the opportunity to do so. According to his brother he is capable of managing simple day to day transactions such as going to the shops to purchase a few items, purchasing meals at the club, buying his cigarettes, and so on. However, [the plaintiff] was not able to give an account of how he spent his current allowance, and he did not appear to be particularly interested in how much money was being paid to his brother for being his carer. He had approached the CBA for financial advice which, according to his brother, was something he initiated himself. However, he did not appear to have any idea of what options had been discussed simply saying he trusted the bank, and that he trusted [P] to advise him. He also indicated that if he did not agree with the advice given to him by the bank he would simply ignore it and make up his own mind.

Based on the results of my assessment and the available documentation I am of the opinion that [the plaintiff] does not have the capacity to manage his own finances at this time."

In reaching that conclusion Ms Roberts had regard to neuropsychological assessments in 2005 and subsequent assessments including reports in 2011 from a psychiatrist, a clinical psychologist and a neurologist. Those reports were addressed to different issues, namely the plaintiff's ability to make a reasonable assessment as to whether his brother should be appointed as his carer, to pursue his decision to divorce his wife, and whether he was fit to drive. Ms Roberts also had regard to reports of a Ms Threlfall of October 2008 and of a Ms Jochelson of May 2011. They had been appointed by the Protective Commissioner and later the NSW Trustee as authorised visitors to the plaintiff. [Their qualifications were as social workers.]

Ms Threlfall's report was provided when the plaintiff was living with B at Batemans Bay. She recorded that B expressed extreme frustration in the financial administration of the Protective Commissioner, and reported continual conflict between the Office of the Protective Commissioner and B over the management of the plaintiff's assets, particularly those held jointly. She reported that the plaintiff appeared to be totally dependent on his wife in the everyday tasks of daily living and showed no insight into the emotional burden his behaviour placed on his wife. His wife reported that the plaintiff was totally dependent on her. Ms Threlfall's report did not focus on the plaintiff's cognitive ability.

Ms Jochelson expressed the opinion in her report of 16 May 2011 that due to the plaintiff's cognitive deficits and issues with short-term memory, it was doubtful that he would be able to contribute to any sound financial decision-making. She considered that he was vulnerable to being influenced by his family in Sydney and was doubtful of the plaintiff's ability to control spending if granted access to large amounts of money. She considered it would not be possible for the plaintiff to live alone due to his cognitive deficits. She noted that the plaintiff had reported in 2011 that he had never wanted to buy the house in Batemans Bay, but said that this was contrary to her initial assessment where no objection had been expressed about the move. Ms Jochelson recalled that they were both looking forward to a quieter environment. Ms Jochelson reported that:

"The accusations and allegations of mistreatment and financial exploitation have surfaced rather suddenly and in rather a dramatic way which may be symptomatic of [the plaintiff's] brain injury. However they still warrant some investigation as [the plaintiff] is very adamant about them. [The plaintiff's] approach may be further compounded by the interference from his brother [P] who is taking on the role of advocate for his brother. While his intentions may be well meant in terms of assisting his brother, the manner taken seems unduly acrimonious, impatient and quite hostile." (P 469)

Ms Jochelson recommended that the NSW Trustee investigate if there were any basis to the alleged financial exploitation by B and identified five withdrawals from the plaintiff's bank account that had been identified by P as being suspicious and warranting investigation. These included a withdrawal of $4,000 after the plaintiff had left Batemans Bay and moved to his brother's house and an earlier withdrawal in January 2011 of $20,000.

In these proceedings the plaintiff complains that no such investigation was carried out, or if it was, the results were not reported to him. There was no evidence that the NSW Trustee did carry out such an investigation.

Although Ms Roberts took these reports into account in forming her opinion, it appears from her report that the primary basis of her opinion was her observations of the plaintiff as a result of her consultation with him. Ms Roberts conducted a cognitive screening test known as the Rowland Universal Dementia Assessment Scale. The plaintiff scored 22/30 on the test. He lost points on the short-term memory task and a judgment task. Ms Roberts found that the plaintiff comprehended simple instructions and questions in Croatian, but experienced difficulties with understanding more complex instructions, or questions involving abstract concepts. This resulted in questions having to be repeated or simplified at times. He had difficulty even with simple mental arithmetic tasks. He was able to carry out simple written calculations accurately, although he lost track on a multiplication problem involving the carrying of numbers and he did not recall how to undertake problems involving division. He experienced significant difficulties with tasks involving working memory, such as the ability to hold information in his mind and mentally manipulate it or to keep track of more than one line of thought at a time. His short-term memory was impaired. Thus after being given a list of four simple items and being able successfully to repeat the list, a short time later he could recall only one of the four items. After a short story was read aloud in Croatian, after a short delay, he needed prompting to recall anything about the story. Ms Roberts concluded that the results of memory testing indicated significantly impaired learning and recall of new information whether it was presented by talking (in Croatian) and his listening, or visually. She reported that the plaintiff demonstrated concrete thinking and was unable to grasp abstract concepts. Thus when asked how a table and chair were alike he responded, "The table is to write on, the chair is to sit on". She reported:

"Neuropsychological testing indicated residual high level receptive and expressive language problems, impaired working memory (ability to hold information in the mind and mentally manipulate it or to keep track of several lines of thought simultaneously), impaired short-term memory, and problems with executive functioning (concrete thinking, difficulty shifting set at times, problems with planning and organizing) in a man of estimated average premorbid general intellectual ability. The pattern of results is consistent with the residual effects of an extremely severe traumatic brain injury.

On the positive side, [the plaintiff] was able to sustain his mental effort and co-operate with the assessment process to the best of his ability. His behaviour was appropriate and there was no evidence of thought disorder, paranoia, delusions or hallucinations during interview or testing. He did appear anxious at times but this appeared to be directly related to his current situation and his desire to sort out his affairs."

Ms Hayden's report

On 15 April 2013 the plaintiff was visited by a new authorised visitor appointed under s 123 of the NSW Trustee and Guardian Act, a Ms Hayden. I infer that her expertise is also in social work. In the course of her assessment and in reaching her recommendations in respect of the plaintiff's accommodation, health, the provision of services and care arrangement, allowances, clothing and holidays, Ms Hayden expressed opinions relevant to the plaintiff's capacity to manage his financial affairs. She reported:

"...I asked him about his understanding of his assets and outgoings. Despite several prompts, he was not able to give even a guesstimate of the size of his assets and stated that he had never been told. The only amount he was able to report was the $500 per week he receives for his allowance and he did not know how much his brother was receiving for his care. He was able to detail the types of things he spends his allowance on - cigarettes, club, eating (at the club), snooker and church. ...

I asked [the plaintiff] if he received the 6 monthly transaction reports sent out by the NSWTAG and he said that he hadn't seen these. I checked with Brian White who confirmed that every six months, a statement of [the plaintiff's] total assets and investments and the transactions of the last 6 months were indeed sent out to [the plaintiff]. I clarified later with [P] about whether the transaction statements were being received by [the plaintiff] and he stated that the 'statements arrive and [the plaintiff] isn't happy with them'. As [P] explains documents to his brother, he is presumably providing commentary about the meaning of these. It is concerning that [the plaintiff] cannot, even with prompting, recall that he receives the 6 monthly transaction statements and despite having (explained) access to these regular documents cannot even estimate the extent of his assets. He appears to be highly reliant on his brother to assist and 'explain' these documents, and this reliance mirrors the unquestioning trust that he has in his GP, described above. This suggests that he requires decision making support for his finances."

It was Ms Hayden's observation that the plaintiff was strongly assisted by his brother to regain capacity to manage his own finances and to make a will and that P's influence might be used to support and guide the plaintiff in ways that did not promote the plaintiff's health and wellbeing. She recounted P's participation in the latter part of the interview with the plaintiff in which P took over the interview to tell the story of the plaintiff's mistreatment. When Ms Hayden responded by saying that in the limited time available it would be best to focus on current matters, P indicated that he disagreed with this and that Ms Hayden was denying his brother his human rights. During this time the plaintiff became more upset and echoed the statements of his brother about "listening to the truth" and about being denied his human rights. Ms Hayden observed that this was in contrast to nearly two hours of the interview that had taken place up to that point when the plaintiff was pleasant and responsive.

Ms Hayden reported that the plaintiff's siblings and daughters had expressed concern that P was seeking to influence the plaintiff to obtain control of the plaintiff's money. She reported a statement by the plaintiff's daughter made to her that P had come to her and:

"... wanted her to 'sign over' her father's care and her share of his will and stated that he would 'take care of his money'. [She] stated she refused to do this. In her opinion this confirmed that access to her father's money was a strong motivation for her uncle's involvement with her father."

P denied making any such demand or request. There was no other evidence of it.

Dr John Roberts' report

The plaintiff has changed his will. His new will is dated 30 March 2012. By his will he gave his estate to a nephew, being the son of P. If the nephew did not survive him for 30 days then he gave his estate to his brother P. He gave reasons for not having made provision for his daughters, but stated that it was his intention to continue to seek contact with his daughters and to have discussions with them as to future arrangements at which time he would reconsider the contents of his will, dependent upon the outcome of those meetings and discussions.

The plaintiff's testamentary capacity is not in issue before me. A psychiatrist, Dr John Roberts, provided a report on 19 September 2012 on the plaintiff's testamentary capacity. Whilst that is not directly relevant, his observations in his report and more particularly in oral evidence he gave, are relevant to an assessment of the plaintiff's ability to manage his affairs. Dr Roberts had seen the plaintiff on 28 June 2012 and had provided a report on 12 July 2012. He saw the plaintiff again on 10 September 2012 and revised an opinion he had earlier expressed. The plaintiff told Dr Roberts that he believed that the Protective Office had stolen money in co-operation with his former wife. Notwithstanding this, Dr Roberts concluded that what he had previously considered to be paranoid ideation appeared to be based upon there being a valid basis for a belief that inappropriate behaviour by the NSW Trustee had occurred, even if such a belief was in error. He concluded that the plaintiff, while suffering from a degree of cognitive dysfunction, had the capacity to express his wishes in regard to the disposition of his assets.

Ms Corinne Roberts' second report

Ms Corinne Roberts (no relation to Dr John Roberts) had a further consultation with the plaintiff on 23 May 2013. She provided a further report dated 3 June 2013. She was provided with Ms Hayden's report and a statement of three to four pages in point form in English which, according to P, was the plaintiff's response to Ms Hayden's report. It was Ms Roberts' opinion that the plaintiff could not have prepared the document without significant input and guidance from someone else as he did not have the cognitive capacity to develop the logical and careful analysis of Ms Hayden's report that appeared in the statement. In an affidavit the plaintiff deposed that the document commenting on Ms Haydon's report was substantially prepared by him and was according to what he said and wanted. He deposed that he was not asked by Ms Roberts whether a third party had prepared the document or had had any significant input into the response, but if he had been asked those questions he would have said "no". For reasons which appear below, I accept Ms Roberts' opinion. It is corroborated by the plaintiff's response to Ms Roberts' second report.

Ms Roberts reported that initially the plaintiff presented as affable and co-operative, but when confronted with very simple cognitive tasks appeared to become upset and complained that the whole thing was too stressful and launched into a tirade against the NSW Trustee. This occurred several times and hence a minimal amount of formal cognitive testing was undertaken. Ms Roberts reported having again administered a Rowland Universal Dementia Assessment Scale test (RUDAS). She reported that the plaintiff scored 22/30, losing points on the short-term memory task, the judgment task, praxis and language. His overall score was the same as it had been at the previous assessment placing him in the impaired range. (In this context, "praxis" refers to the person being given the test being asked to imitate two separate actions carried out by the person administering the test with both of his or her hands.)

In his affidavit the plaintiff responded to this part of Ms Roberts' report. He said:

"I do not understand how the same score was reached. In that the same questions were not asked during both assessments, I do not see how a parallel between the two assessments can be drawn. I do not agree with the conclusion reached in this paragraph."

I asked the plaintiff questions about this in his oral evidence. The interpreter read the paragraph from the report to the plaintiff. He gave the following evidence:

"Q. Is there anything in that paragraph that strikes you as odd?

A. INTERPRETER: Yes. Let it be, she wrote it down by her profession, what she told she supposed to write, I trust her, it's okay.

Q. I'll ask it again. Is there anything about that paragraph that strikes you as being strange?

A. WITNESS: No."

The interpreter read to the plaintiff his response to that paragraph. The plaintiff said that the paragraph conveyed his thought rather than someone else's and that he did not have assistance from anyone. I asked him to explain in his own words what he was saying. He could not answer that question. He gave the following evidence:

"Q. In that paragraph you say you don't understand how the same score was reached; don't you, that's what you say?

A. INTERPRETER: Who will know? I can't remember all those things. I do apologise, your Honour, but I can't remember everything, I'm not computer.

Q. Could you please read to [the plaintiff] the next sentence which says, 'In that, the same questions were not asked during both assessments. I do not see how a parallel between the two assessments can be drawn'. Can you read that to him, please, in Croatian?

A. INTERPRETER: Yes. [This was done.]

Q. Do you understand what you're saying there?

A. INTERPRETER: I do understand it.

Q. Could you explain to me in your own words what you're trying to say there?

A. INTERPRETER: What did I think? You ask me a question and I answered.

Q. Can you tell me what, in your own words, what you're trying to say there in that sentence?

A. INTERPRETER: What can I think? Whatever you ask me, I answer and that's it."

Ms Roberts also reported as follows:

"[The plaintiff] initially appeared willing to attempt a simple memory task in which he was asked to look at pictures of common objects and recall them. On the first attempt he recalled 2/9 items. He improved to 6/9 items on the second attempt but then refused to continue, becoming agitated and producing an angry outburst which took some time to settle."

In his affidavit the plaintiff said in response to this paragraph:

"21. ... I agree that I got frustrated during this test however, my frustration stems from the manner of testing which I believe is not directly related to my capacity to carry out or control my financial affairs.

22. Rather than having to look at and recalling pictures, I thought it was more important to assess my capacity by other means such as obtaining an understanding of my everyday living, and perhaps raising questions to cover areas such as how I do my banking, how I propose to invest my assets, how I pay my bills, how I use my mobile phone, how I go to the post office, how I make health decisions, how I instruct my solicitors, how I previously appeared in Court and other day to day matters.

23. Further, I believe the questions asked of me by Dr Roberts were not related in any way to my capacity, did not relate to my day to day life and were not useful in determining capacity."

In his oral evidence the plaintiff confirmed that he was frustrated when asked to perform a memory test by looking at pictures. I asked him why. His response was:

"They treated me as a kid. I'm not a kid. I am 58 years old man. I just want my rights and freedom."

I conclude that contrary to his evidence, the plaintiff's responses to these paragraphs in his affidavit were not his own words, or his own thoughts to the level of sophistication appearing in the affidavit. I do not think that the plaintiff was capable of the sophisticated response to these parts of Ms Roberts' report contained in his affidavit.

Ms Roberts asked the plaintiff questions about his allowance from the NSW Trustee and about his assets. He expressed a reasonable knowledge of what his tangible assets were, that is, what house was in his own name and what were in the joint names of him and B, and of his car, and the fact that it was not registered, and of tools and machinery. He said he had an allowance of $350 per week from the NSW Trustee, but later correctly stated that his allowance was $500 per week. He was asked how he spent the allowance and provided a rational, but inexact, response. The plaintiff told Ms Roberts that he put $10 on the collection plate at church every Sunday. He said that there are two collections (he is Catholic). He told Ms Roberts that he spent $160 per week on cigarettes and that he went to the Croatian Club regularly and might have lunch and dinner there and play billiards. Asked about other expenses he said he had a mobile phone bill he paid every three months that amounted to about $160. He spent some money on clothes. When asked about his capacity to manage finances Ms Roberts reported that the plaintiff perseverated on the theme that the Office of the Protective Commissioner was stealing his money and treating him like a beggar and that he wanted to go to the Supreme Court and to the television stations to expose them. Ms Roberts concluded that the plaintiff did not appear overly concerned or aware of how much he was currently spending on a weekly basis or how much his brother was receiving for rent and for other costs associated with his care, but simply believed that it was not enough and that he should be able to spend whatever he chose.

When asked what he would do with his money if he regained control of it he said that he would put the money in the Commonwealth Bank which he trusted and invest the money as he wished. Ms Roberts reported that she asked him how he would work out where to invest the money so as to get the best return, and he responded that there were some builders around that he might invest the money with, but it was not clear whether he was referring to actual builders that he knew of. He also said that he would ask a solicitor or barrister for advice about investing and that he would ask his brother P and he could also trust P's son.

Ms Roberts stated that:

"Based on the limited amount of formal cognitive testing that could be undertaken, and on [the plaintiff's] responses to questions relating to his understanding of his current financial status including assets and expenses, I am of the opinion that there has not been any significant change in his cognitive functioning since my previous assessment. I remain of the opinion that he does not have the capacity to manage his financial affairs independently.

...

Although [the plaintiff] may well have the capacity to manage simple day to day transactions such as going to purchase cigarettes, buying meals at the club, and even making over the counter cash withdrawals at his local bank, he did not appear to have any interest in keeping track of his spending or budgeting with his weekly allowance.

...

[The plaintiff] did not demonstrate any capacity to consider the relationship between his current outgoings and the long-term management of his financial assets, and he was not able to generate any practical plan in relation to seeking appropriate expert advice regarding the management of his investments. His responses to questions about such matters were vague on both occasions when I interviewed him.

He was not able to tell me the value of his current remaining assets, and his ideas about how he would invest his money in order to maintain the value of his estate such that his future needs would be provided for were at best vague. He indicated clearly that he would trust his brother [P] to give him advice in relation to such matters. In essence, his approach to the management of his financial affairs appeared to be that he should be allowed to do whatever he wanted with his own money. I believe that if he were to be given the control of his financial affairs he would be reliant on and influenced by his brother [P] with regard to making decisions on more complex financial matters."

Dr Protulipac's report

The plaintiff was also examined by Dr Zoran Protulipac, a psychologist. Dr Protulipac provided a report dated 24 July 2013. Dr Protulipac is a native Croatian speaker and his consultation with the plaintiff was conducted in that language. Dr Protulipac reported that the plaintiff was a good historian and was able to provide the finest of details from his personal history. He recounted that history in detail that included detail of the plaintiff's first marriage, the birth of his two daughters, his divorce from his first wife in 1993, a de facto relationship from whom he had his third daughter, his marriage to B, that after his marriage to B they managed to pay off the house owned by B from, according to the plaintiff, the earnings of the plaintiff's business as a parquetry installer. The plaintiff reported details of his relationship with B and the complaints he made in some detail from which he concluded that B was using the money provided by the Protective Commissioner for B's own benefit and the benefit of her family. Dr Protulipac reported in detail reports made by the plaintiff about issues such as his inability to obtain funds from the NSW Trustee for legal representation, and his reasons for seeking to dispense with the services of his then solicitor.

Dr Protulipac reported that the plaintiff's long-term memory was unremarkable and he saw no deficiency in his short-term memory. He reported that the plaintiff was able to recall a set of numbers given to him to remember and then to repeat 10 minutes later correcting himself only after making trivial errors of speech or when he recalled a certain date or year. This is in marked contrast to the results of short-term memory tests conducted by Ms Roberts.

Dr Protulipac reported that the plaintiff's processing time was somewhat slow. Dr Protulipac reported that the plaintiff's cognitions appeared normal, that his concentration was good, but on occasions needed reinforcement. He remained engaged for the duration of the assessment.

Dr Protulipac administered a test for depression and anxiety. He concluded that the plaintiff presented with mild anxiety.

Ms Roberts had administered a Trail Making Test involving the joining of numbered circles by a line that is not to cross. She did not administer part B of the test which requires a person to alternate between numbers and letters, keeping track of two sequences and alternating between them. She did not administer part B because she thought its reliability might be compromised by reason of the plaintiff's limited understanding of English.

Dr Protulipac administered part B of the test which is harder to complete. The test was solved correctly in 134 seconds. The prescribed time for the correct completion of the test was 90 seconds. Dr Protulipac concluded that the test suggested that the plaintiff's working memory was somewhat slow, but his higher order cognitive abilities were good. He considered the results of the test to be critical for the opinion he formed. A further non-verbal test of intelligence again showed a slow working memory, but confirmed Dr Protulipac's opinion that the plaintiff's higher order cognitive functioning was intact.

Dr Protulipac reported:

"[The plaintiff] was able to answer a range of basic questions correctly. This included the questions of orientation to the person, time and location, purpose of the assessment. His ability to solve simple mathematical operations (i.e. 'your weekly allowance is $500, if you pay rent $284 how much would you be left with?'). He calculated correctly the price of a packet of cigarettes purchased individually versus as a part of a carton of 8. He understood the concept of a 'discount' which he is benefitting on weekly when purchasing his cigarettes. He was aware that his brother, [P's] house was worth approximately 1.2M. He had a reasonable knowledge of the current affairs, particularly of those in the Croatian community and in his home country, as this is what he follows. He listed the activities which form his daily routine and was obviously aware of the significance of each one of them. He takes care of his personal hygiene. He insisted that he should have access to his money as he wanted to distribute it in accordance with his wishes and beliefs. He knew how much money he had and how much is left from the original amount paid to him as a compensation following his accident in 2004. He became obviously upset when the OPC was mentioned and insisted that he was 'ripped off' by [B] and the OPC and wanted this to stop. He was adamant that he 'did not deserve it', referring to the money that he earned prior to his accident, the amount of the payout and the inadequate care which he received from [B] who neglected his rehabilitation.

In terms of his psychological conditions, [the plaintiff] reported symptoms of mild anxiety which is consistent with his financial concerns and overall situation. He did not exhibit any signs of psychopathology. His cognitions appeared intact, there was no formal thought disorder or symptoms of depression. Apart from the lingering effects of the traumatic brain injury, this is a psychologically healthy man.

9. Opinion

Overall, [the plaintiff] demonstrated reasonable awareness of his current situation, future plans and limitations in relation to his financial arrangements. This is supported by the opinion of various professionals, including his GP, Dr. Teo who consults him on regular bases. He has been assessed to be able to exercise his testamentary decisions. There is an agreement by at least 2 doctors that he is able to undertake a driving test. He is a man of average intelligence which is supported by the history as evidenced. He was capable of creating his wealth prior to his accident due to his cognitive abilities. Human intelligence is a factor that remains stable over time and this is also true for [the plaintiff].

He has demonstrated a significant improvement in his physical and mental rehabilitation since he has been under his brother's care. He also reported, on numerous occasions, that he feels safer, better cared for, healthier and happier whilst under [P's] care. This provides a further evidence as to his constant improvement when under appropriate care, which may shed light on the quality of the care and rehabilitation provided by his ex wife, [B], following his discharge from the rehabilitation facility.

The fact that he constantly expresses disappointment and anger over the reported mismanagement of his funds also suggests that he has the awareness of the values, prices and perceived direction for the management of such funds.

Finally, he was able to provide an up to date calculation of his finances, earnings and expenses. His higher order cognitive functions appeared intact however his processing speed was somewhat reduced. This is suggesting that he is able to make sound decisions however requires extra time. He has no intentions of entering the field of dynamic investing, a business, or further trading enterprises. He merely wants a control over his estate which he can manage with his own skills and abilities demonstrated to be adequate. It is therefore my opinion that he is capable of managing his finances adequately and that control over his funds should be in his hands."

Dr Stevans' report

The plaintiff was also examined by a psychiatrist, Dr Stevans, on 14 October and again on 31 October 2013. Dr Stevans is also fluent in Croatian. Dr Stevans administered a test known as the Semistructured Clinical Interview for Financial Capacity (SCIFC) that he said was an appropriate tool to use to assess the financial capacity of adults with mild cognitive impairment, regardless of the cause. He also interviewed the plaintiff in an unstructured way with questions about his financial affairs. There was a dispute between Dr Stevans and Ms Roberts as to whether the SCIFC test was an appropriate test to administer or whether, as Ms Roberts contended, its utility was confined to people with Alzheimers, dementia or cognitive impairment preceding Alzheimers dementia, rather than for people who have had a traumatic brain injury. Dr Stevans did not agree. I need express no opinion on that question. Dr Stevans summarised the nature of the tests posed which related to matters such as identifying coins and notes, adding the value of coins and notes, simple arithmetic involving money, use of a cheque book, identifying bank balances from a bank statement or passbook, detecting telephone fraud risk, making financial judgments such as would be involved if he decided to sell his car, paying and questioning bills, and knowledge of personal assets and income. The tests are at least relevant to the present issue.

Some of those matters were also touched on in Dr Stevans' direct questioning of the plaintiff. That questioning extended more widely. The plaintiff was able to give reasonable statements as to the extent of his assets and source of income. He was aware of the allowance being paid to his brother for being his carer and of the rent being paid, and that two of the properties were being rented out. He was unaware of the rental return for which lack of knowledge he blamed the NSW Trustee. He was asked about giving money to family or friends or buying things for them, and as to whether family or friends helped him with his finances. His responses were appropriate. The plaintiff was asked what would be his next major purchase if he had the chance to make a major purchase and advised that he would like to buy a house close to his brother P so that he could become independent and provide a comfortable place for his daughters and grandchildren to visit. The plaintiff said that this would only be possible if the Supreme Court settled his financial affairs and consolidated his assets so that he would have enough money to carry out the plan. Dr Stevans asked the plaintiff if he had any concern about his own ability to manage his finances. He said that he did not and if he did he would turn to his brother for advice.

Dr Stevans was critical of Ms Roberts' report. Some of his criticisms were captious and need not be considered. Dr Stevans said that Ms Roberts had placed too heavy a reliance on the RUDAS cognitive screening test she administered. He noted that the fact that the tests were administered using an interpreter carried a significant confounding factor. He considered that Ms Roberts had placed too much reliance on earlier reports concerning the plaintiff's cognitive ability from 2004-2005.

Dr Stevans' conclusion was as follows:

"Although assessment of capacity is decision specific, there are clear guidelines that are identical in any assessment process.

1.The person must understand their situation (or finances)

2.The person must understand the positives and negatives of their situation (or decision)

3.The person must be able to communicate their understanding in a consistent way longitudinally over time

4.The person must not be mentally ill at the time of the assessment

5.The person not be under influence by someone else (i.e. a love interest)

There is no requirement that an individual must be able to solely and exclusively manage their finances independently. Many people turn to their parents, siblings or friends for advice on large purchases. A person does not need to manage their finances in the best possible way as in running a highly regulated business. They just need to be able to manage them. If a person makes a financial decision that might be different from a decision by the assessor in the same situation, it is not an indication of lacking capacity. Hence the morality about how people spend their money is not a reason to say they have no capacity to manage their financial affairs. Another crucial requirement for individuals managing their own finances is the ability to recognise ones [sic] own limitations and seek external assistance. And finally, there is no requirement that a person must know the exact dollar value of their assets and their expenses. Most people are not aware of the fine details in their weekly budget but are aware of their gross spending.

In consideration of my decision, I have taken into account all the available evidence, the specialist medical reports as listed in the sources of information, the neuropsychological tests performed by Mr McMahon, Dr Protulipac and Ms Roberts, two clinical interviews with [the plaintiff] and various other legal documents.

[The plaintiff] does have clinically visible cognitive impairment, which may or may not be apparent to a layperson. If he were asked to evaluate the most recent 12-month trend of the top 5 performing companies on the ASX index, he wouldn't be able to manage. However he has more than enough cognitive reserve to meet all the criteria listed above for personal financial management. This is also evidence on the Semistructured Clinical Interview for Financial Capacity as performed during my assessment. He has shown capacity for recognising his own limitations and turning to his brother [P] for appropriate help. His brother [P] has [the plaintiff's] best interest at heart and would gladly offer honest advice.

I am therefore of the opinion that [the plaintiff] is capable of managing on his own financial affairs [sic]."

Occupational therapist's report

The plaintiff was also assessed by an occupational therapist from a rehabilitation clinic with the South Eastern Sydney Illawarra Area Health Service. Part of the occupational therapist's review included two budgeting exercises. In one scenario he was asked to assume that he was paid $500 per week and his expenses for the week were $100 for rent, $50 for dinner at the club, $120 for an electricity bill due that week, $200 for medical bills due that week, $100 for spending at the club on snooker, cassettes and papers and $80 for food shopping for all meals for a week. He was asked what his order of priority would be for paying bills. He advised shopping for food would be first because he needed to eat, then rent, then the medical bill, then dinner, then the electricity bill and then the discretionary spending at the club. He was asked if on that scenario he would be able to pay for everything and correctly advised, no. The occupational therapist noted that he prioritised dinner at the club over paying the electricity bill.

The plaintiff was given a second scenario assuming a weekly budget of $700 with expenses of $200 rent due that week, $150 for food, $300 solicitor bill due that week, $50 water bill and $100 for cigarettes. He was asked to rate the priority of expenses. He reported the priority of $150 for food, $50 water bill, $200 rent, $100 for cigarettes and $300 for the solicitor. The occupational therapist advised the plaintiff that he had $800 of expenses and $700 to spend and asked what item he would not pay. He said that he would not pay the solicitor's bill. The occupational therapist clarified that that bill was due and asked the plaintiff what would happen if he did not pay it. He said that he would ask his brother to borrow extra money. He was asked about a hypothetical scenario in which he received five bills at once and could not pay for them all. He said he would pay what he could and ask his brother for help to pay the balance.

These answers are not a model of financial prudence in that in the first scenario the plaintiff gave priority to spending money for dinner at the club to paying the electricity bill, and in the second gave priority to spending money on cigarettes rather than paying a bill then due to his solicitor. The plaintiff's only limited preparedness to curtail discretionary spending in the scenarios presented probably reflects the attitude of a large part of society and, in any event, can be explained by his reliance on his brother to provide assistance if needed. On the whole I think the plaintiff's responses are supportive of the opinions of Dr Protulipac and Dr Stevans in showing a reasonable capacity to assess expenditures against available income.

Plaintiff's oral evidence

The plaintiff gave his evidence through an interpreter. As noted earlier in these reasons he repeated, whether responsively to questions asked or not, that his former wife B or the NSW Trustee had taken away his human rights and kept him as a dog. For example:

"Q. Does [P] receive any money from the NSW Trustee for providing you with accommodation?

A.INTERPRETER: They didn't pay him for long time, then they started a bit, but that is not how much I asked them to pay him for, for me staying at his place. Also they did the same thing with me. They didn't pay me for long days, for 100 days. They gave me a bit here, a bit there, and I want the interpreter to translate this: they treat me like a dog, like a dog, here and there, and I am very upset and it is hard for me."

All of the expert witnesses were agreed that the plaintiff suffered a degree of cognitive impairment. Ms Roberts and Dr Stevans agreed that the impairment was reflected in the plaintiff's thinking in very concrete terms and having difficulty in thinking in abstract terms. That was demonstrated by his evidence. Dr Protulipac considered that the plaintiff's higher order cognitive functions appeared intact, apart from a reduction in processing speed. Dr Protulipac said that the basis for that observation was that "high order cognitive functioning associated with the function of the frontal and pre-frontal lobes are [sic] the ability to understand instructions; carry out the task as asked; [and] evaluate the outcomes of that task." (T79). Dr Roberts thought that the plaintiff does have a grasp of matters albeit at a slower rate than the ideal person, and that that did not necessarily preclude competency (T85). These opinions were formed not just on the basis of experts' consultations with the plaintiff, but also after seeing him give evidence on the second day of the hearing. (The experts were not in court when he gave evidence on the first day of the hearing.)

Allowance must be made for the stress of giving evidence in a court and through an interpreter. Thus, the plaintiff was not able to say accurately how much money his brother P received for taking care of him, and for accommodation. He was asked how much money the NSW Trustee was paying P for providing him with accommodation. His response was $800 but he could not say whether that was for a month or for a week. He did not know if P received any other money from the NSW Trustee for taking care of him in addition to what he received for accommodation (T34). On the other hand, he had given correct information about that to Dr Stevans.

An example of the plaintiff's inability to deal with abstract questions occurred when he was asked how he would respond if given the ability to control his own money and his brother asked to be paid more for providing accommodation for him.

The plaintiff gave the following evidence:

"Q. If [P] asked you to pay a larger amount of money, would you be prepared to pay it for your accommodation?

A. INTERPRETER: Yes, [P] cannot ask me to pay more for accommodation at his place when [P] knows very well that I am receiving much less than I should, that I don't have it and they are giving to me a less and less money to live on. Now they gave me $350 per week, and after that, when they saw I was so upset I did have a heart attack. Then they changed their mind and they increase up to $500 per week. When they saw that I applying to go to Supreme Court, before Supreme Court then they increased to $700 per week.

HIS HONOUR

Q. If you had control of your money yourself, and if [P] asked you to pay more than $400 per week for accommodation would you be prepared to do so?

A. INTERPRETER: He doesn't need to ask me, he doesn't need the money, I just need a safe place to be and someone to protect me if need be. This is why I have my brother and his son there and money is nothing.

HIS HONOUR: I think I will ask that again.

Q. I don't think that is an answer to my question?

A. INTERPRETER: I am sorry, judge, maybe I don't understand.

Q. If you had control of your money, that is if the Protective Commissioner is out of the picture, and if [P] asked you to pay more for your accommodation, more than $400 per week, would you agree to do so?

A. INTERPRETER: Okay, can I say the truth? Honourable judge, [P] didn't need this, I asked him to come and save my life, to take me from Bateman's Bay address, he mentioned Catalina Crescent and he saved my life. He didn't need it, he come and help me.

Q. If you had control of your money, would you pay [P] whatever rent he asked?

A. INTERPRETER: My brother [P] doesn't need it. He has his bank. He doesn't need it. He is losing having me there. He works so hard to protect myself, my rights and to help to do everything. If you would see the amount of paper that we have got at home, I cannot even look at it. He works very hard to protect me. He doesn't need this.""

I do not think that the plaintiff was trying to avoid answering the question. His difficulty was in handling the abstract question. I cannot say whether that difficulty was compounded by difficulties in translation. But the last part of the answer is a reasonable, albeit emotional, response if P has done all for the plaintiff that the plaintiff says he has.

The plaintiff gave consistent evidence as to how he would deal with his money if allowed to manage it. He said that he would sell the houses that are in his name, buy one place where he could live near his brother P and put the rest of the money in the Commonwealth Bank. He was asked how he would determine the appropriate price to sell the properties. He gave an insightful answer that, "It's not my job. There is a valuer that I can always hire - can value the houses and then he can tell me how much they are worth. It is up to me to accept it or to decline it." He was asked how much he would be prepared to spend on a house and gave the reasonable answer "Can't say. I didn't get to that yet. I am still waiting to have what is mine." He was asked:

"Q. After you purchase the house what additional costs will you pay arising from the ownership of a house.

A.INTERPRETER: I have to pay money to the government buying the house. I have to pay for electricity, phone bills for everything that goes with the house."

He gave the following evidence in relation to investing funds with the Commonwealth Bank:

"Q. You have said that you wish to provide the remainder of the money to the Commonwealth Bank; do you remember saying that?

A. INTERPRETER: Yes, I want to do that. I want to do so, that's my bank for 26 years, I trust that bank. That's my decision only. I want to put money there.

Q. Are you intending to deposit the money in the bank account that you presently use?

A. INTERPRETER: My account, yes.

Q. What interest are you hoping to receive on that money?

A. INTERPRETER: They know the law and by law I will get my part, my share.

Q. I might ask the question again. What interest rate are you hoping to receive on that money?

A. INTERPRETER: Don't know. I think they know, they do the right thing by law. I trust them and it's going to be all right.

Q. Would you consider alternative investments such as investing shares in the stock market?

A. INTERPRETER: I don't want to talk about it now. That's my right. I don't want to say anything now. I will make decision when I wish and how I wish when time comes.

HIS HONOUR

Q. ..., I have to decide whether you're capable of managing your own affairs. It is relevant for me to know how you might invest the money that's yours if you are given control of it. Could you answer the question that was asked please?

A. INTERPRETER: I'm going to do investments. I want my money to grow, not to go down as so far.

Q. The question you were asked was whether you would consider investing in shares in the stock market?

A. INTERPRETER: Yes, I will.

BALAFOUTIS

Q. How will you decide which shares to invest in?

A. INTERPRETER: I go for the highest profit, where I can get some good return. I'm going to ask my solicitor and barrister for advice.

Q. Why do you think that your solicitor and barrister are qualified to give advice on the appropriate shares to invest in the stock market?

A. INTERPRETER: I trust their opinion. They know those things."

The plaintiff was asked whether he would lend money to P or P's son if they asked him to. Initially he said he would not. When asked to explain why not, he said because they did not need to borrow. He then said that they had saved him and if they asked him, and needed money, he would lend it. The expert witnesses were present during this part of the plaintiff's cross-examination.

Counsel for the plaintiff asked the expert witnesses whether, if the plaintiff were of the view that the NSW Trustee has not paid to the plaintiff what the plaintiff is owed from his estate, and that other family members have alleged that P is taking advantage of the plaintiff, which is something the plaintiff strongly disputes, he might have perceived the question about an hypothetical request for an increase in rent as an attack on his brother and so accordingly avoided deliberately answering the question. Ms Roberts thought that that was unlikely, but would not exclude it as a possibility. Dr Stevans accepted that that could be the position. He gave an explanation that might also be an explanation for some of the plaintiff's other failures to answer questions responsively, highlighted perhaps by his initial refusal to answer the question extracted at [67] above as to whether he would consider investing money in shares in listed companies. Dr Stevans said that there is a term in psychiatry called "peasant culture" which refers to a kind of belief that subgroups of all nations and populations have where people have a tendency to think that the State, the police, the medical authorities and anyone in a position of power is doing things contrary to what the public or the "general person" wants to do, so that they think that the State is against them. Dr Stevans said that this was a tendency commonly seen in the prison system where prisoners believe that doctors in a prison hospital were linked with the legal system and prison system and so were suspicious and resistive of them. Dr Stevans' point was that this is a cultural factor, independent of mental capacity, and should be taken into account in attempting to assess the plaintiff's mental capacity as a result of his responses to questions.

Dr Stevans accepted that because of the plaintiff's concreteness in thinking he would have difficulty in evaluating the sort of hypothetical issues involved in planning for the future. He pointed out that many people are not successfully managing their finances and that they go into debt and become insolvent, notwithstanding that they have the requisite capacity to manage. Dr Stevans considered that because the plaintiff acknowledged that he would turn to advice from others, either the barrister or solicitor or his brother whom he trusted, that indicated that he had the requisite capacity. Dr Stevans accepted that the plaintiff has limited cognitive ability for abstraction.

Plaintiff's sister

A sister of the plaintiff appeared on the application and opposed the revocation of the financial management order. She expressed concern that if the order were revoked, his money would be promptly dissipated. She said that the plaintiff had been brainwashed (apparently by his brother P) against his children and the rest of his family. There was, however, no probative evidence to that effect. The plaintiff said that he was being well cared for and was grateful to P for having, as the plaintiff put it, saved him from a life where he was controlled by his former wife and, according to his evidence, had a miserable existence. Whilst it is clear that P has acted as a powerful advocate for his brother in dealing with the NSW Trustee and in seeking to have the financial management order revoked, there is no evidence that he has sought to take advantage of the plaintiff or acted in any way that is contrary to the plaintiff's interests. Clearly however, the plaintiff is vulnerable to his brother's influence.

Family law proceedings

Part of the plaintiff's affairs concern family law proceedings still on foot with his former wife. The NSW Trustee retained a solicitor, Ms Fiona Hoad of Somerville Legal, to act for the plaintiff in the family law proceedings with his former wife. On 21 August 2012 the NSW Trustee advised the plaintiff of a settlement proposal made by the solicitors for the plaintiff's former wife and of advice that Ms Hoad had given as to the likely "entitlement" of the plaintiff to the net matrimonial asset pool. The NSW Trustee advised that Ms Hoad was attempting to clarify the values of the matrimonial assets and, subject to that clarification, sought to negotiate a settlement on the basis that the plaintiff would receive a distribution of a particular percentage of the net matrimonial pool. Part of the proposal made by the solicitors for B was that B would be entitled to the Gladesville property.

The plaintiff responded adversely to the proposal. P or P's son wrote on a letter from the NSW Trustee, purportedly writing as the plaintiff, that:

"This letter is against my will. They are dealing without my knowing and without my instructions. Fiona Hoad is not working for my best interests. I feel that this is a corruption against my human rights."

A letter was sent to the NSW Trustee by the plaintiff and P, demanding various information. The letter was clearly written by P.

On 29 April 2013 the plaintiff signed a letter addressed to the NSW Trustee and to Ms Hoad stating that he was opposed to a proposed family law property division notified to him recently, that he had not been informed as to assets and liabilities or as to values and valuations and had not received a reply to his letter of 24 August 2012 being the letter referred to at [73] above.

In arguing that the plaintiff's former wife should receive the Gladesville property the solicitors for B stated that the wife had transferred her half interest in that property to the plaintiff for a consideration of $1 in August 2001 at his insistence. They asserted that the plaintiff and B had obtained a joint mortgage loan from the Commonwealth Bank and the wife had applied her income towards the repayment of the mortgage loan. The solicitors set out numerous matters to explain the basis of their proposal for settlement of the family law dispute. Somerville Legal gave advice in relation to the proposed settlement to the NSW Trustee. The NSW Trustee was prepared to give instructions to Somerville Legal to settle the matter, if it could be settled, in accordance with recommendations of that firm. The plaintiff vigorously opposed the proposed settlement. Correspondence signed by the plaintiff advanced reasons as to why the proposed settlement should not proceed.

However, in cross-examination on the present application the plaintiff was asked if he knew who were the lawyers who had been appointed by the NSW Trustee to run the family law case on his behalf. He said he did not know, and he did not know what had been done in the case so far.

The plaintiff was insistent that he should be the sole owner of the Gladesville property because, he said, he had paid off a mortgage of $220,000 on the property, paid whatever bills needed to be paid and did flooring and parquetry work on the property.

The plaintiff gave the following evidence:

"Q. You've said that you think a fair settlement of the family law proceedings involves you [sic] receiving full ownership of the house in Gladesville. Have you thought about how much money you are prepared to spend on lawyers to fight those proceedings?

A. INTERPRETER: The court expenses has to be paid. What is mine is mine. I have right to have it. It belongs to me. It doesn't belong to anybody who wants to have my things. If she wishes to have those things it doesn't mean that she should have them. Isn't it enough if I say that I live in my house in [---], Catalina, Batemans Bay, that I lived in my house as a dog? Isn't that enough? They should be there to see when my brother [P] come and pick me up. That's more than enough.

Q. Are you prepared to spend whatever it costs to fight the family law proceedings with your wife?

A. INTERPRETER: Because I'm saying the truth, I'm ready."

None of the expert witnesses questioned the plaintiff about his family law proceedings or assessed his capacity to make decisions in his own best interests in relation to those proceedings.

Knowledge of legal costs

The plaintiff was asked about the costs he was incurring in having his own legal representation in these proceedings. I had made orders that the plaintiff could retain his own lawyers for the present application, notwithstanding that unless and until the financial management order is revoked, he is taken to lack capacity to give instructions. He was asked how he chose the lawyers who were representing him. He said that his brother helped him. He was asked if he knew how much the solicitors were charging. He said:

"I can't figure it out, I don't know how much they cost. I don't want, even want to even ask that. If I need a solicitor or barrister, I hire one, and if I need it, I'll get it. I have money and I pay for that. If I needed someone to work for me I have to pay for that, simple as that."

He was asked if his solicitors had given him an estimate for the total cost of the proceedings. He answered:

"When the court is not finish and done with she cannot tell me, or he cannot tell me, how much that cost me. When it's done and finished then I can see."

I asked whether his solicitor had given an estimate of the cost of the proceedings. He answered:

"No. And I am under the impression if it is not finished they don't know how much it will cost. When the court is done, then they tell me how much it is altogether."

The plaintiff could not say what was the total amount of the costs incurred up to that date.

In fact, the plaintiff's solicitors have advised him as to the rates at which work is being charged and have provided an estimate. No doubt, as the plaintiff said, the estimate is qualified on the basis that the solicitors could not be sure how much the proceeding would cost.

Legal principles

The application for revocation of the order that the plaintiff's estate be subject to management is brought under s 86 of the NSW Trustee and Guardian Act 2009. It relevantly provides:

"86 Revocation of orders by Supreme Court

(cf PE Act, s 35)

(1) The Supreme Court, on application by a protected person and if the Court is satisfied that the protected person is capable of managing his or her affairs, may:

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

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

(c) make any orders that appear to it to be 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 or the manager and the discharge of any manager.

(2) For the purposes of this section:

(a) evidence of a person's capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and

(b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and

(c) the Court may otherwise inform itself as to the person's capability to manage his or her own affairs as it thinks fit."

"Estate" is defined for the purposes of Ch 4 (which includes s 86) as meaning:

"The property and affairs of a person and, if only part of the estate of a person is under management under this Chapter, means only that part of the property and affairs of the person."

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

"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."

In H v H (Supreme Court of New South Wales, Young J, 20 March 2000, unreported) his Honour said that:

"It is a very heavy onus to bear, to show that seven 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."

Dr Stevans is no doubt correct in his opinion that capacity to manage one's affairs does not require "the sagacity that makes for success in business" (In the matter of Case (1915) 214 NY 199 at 203 cited in PY v RJS [1982] 2 NSWLR 700 at 702).

In PY v RJS Powell J said (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

(ii) that such moneys or property which he or she may possess may be dissipated or lost (see Re an Alleged Incapable Person);

it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner: see In the Matter of Case (1915) 214 NY 199, at p 203, per Cardozo J."

In H v H (Supreme Court of New South Wales, Young J, 20 March 2000, unreported) his Honour said that:

"... the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's 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."

In Re D [2012] NSWSC 1006 at [61] I followed the formulation of principle of Barrett J (as his Honour then was) in P v R [2003] NSWSC 819 that:

"... the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them."

In PB v BB [2013] NSWSC 1223 Lindsay J said:

"[6] Whether viewed through the lens of s 41 or the antecedent general law, the question whether a person is incapable of managing his or her own affairs focuses attention on the personal circumstances of that person.

...

[8] Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack 'mental capacity' or be 'mentally ill'; or (b) particular reasons for an incapacity for self-management."

Counsel for the plaintiff submitted that the test applied in Re D following what was said by Barrett J in P v R was essentially a subjective test and did not conform to that formulated by Powell J in PY v RJS. Counsel submitted that in PY v RJS Powell J grappled with the question of statutory interpretation in an orthodox way and in M and the Protected Estates Act 1983 (1988) 12 NSWLR 96 his Honour considered that as the phrase "incapable of managing his affairs" had been judicially interpreted in relation to the Mental Health Act 1958 (NSW) prior to the enactment of the Protected Estates Act 1983, it could be inferred that the phrase used in the latter Act was intended by Parliament to be interpreted as it had been in PY v RJS. Counsel submitted that the test of incapacity is to be applied referable to affairs of ordinary complexity, as otherwise people of limited education and intelligence who owned a large and complex estate or who came into a large sum of money would be susceptible of having a financial manager appointed.

My difficulty with the reasoning of Powell J in PY v RJS is that the test propounded by Powell J did not address the terms of the statute itself which speaks of a person being capable or incapable of managing his (or her) affairs, not the ordinary routine affairs of man. I need not repeat what I said in Re D. The High Court has recently repeatedly stressed that the text of the statute is both the beginning and finishing point of statutory interpretation. Nonetheless, having regard to the course of authority, I considered that I should follow the test stated by Barrett J in P v R which more closely approximated the words of the statute. I think the "subjective" interpretation is in accordance with s 39 of the NSW Trustee and Guardian Act 2009 that provides that the paramount consideration in the exercise of functions under Ch 4 is the welfare and interests of the person concerned (s 39(a)). It is supported by Lindsay J in PB v BB at [6] and [8] referred to at [92] above.

Conclusions

But for the evidence of Dr Protulipac and Dr Stevans, I could not be satisfied that the plaintiff was capable of managing his affairs. Ms Roberts' assessment of the plaintiff's capacity was supported by the way he gave his evidence. His inability to deal with hypothetical or abstract questions was consistent with her assessment that the plaintiff did not demonstrate the capacity to consider the relationship between his current outgoings and the long-term management of his financial assets. I do not consider that documents signed by the plaintiff, including his affidavits, which are worded in such a way as to suggest a high level of articulate thought, reflect the plaintiff's abilities. The plaintiff was not able to explain how he might invest his assets after purchasing a house close to his brother, except to say that he would trust the Commonwealth Bank and take advice from his lawyers and his brother. Both in his consultations with Ms Roberts and in his oral evidence he was not able to say accurately how much money his brother was receiving for being his carer. He was perseverative, that is, he repeatedly returned to the theme of being mistreated by his former wife and by the NSW Trustee, whether or not that was relevant to the question he was asked. If his complaints lacked substance they showed a high degree of paranoia.

However, to conclude from these matters that the plaintiff lacked capacity would be to make insufficient allowance for the difficulties of language, culture and the stress of giving evidence in court. The fact that Dr Protulipac and Dr Stevans were able to talk to the plaintiff in his native language without an interpreter gives them an advantage in assessing the plaintiff's capacity that Ms Roberts did not enjoy. He demonstrated a substantially better level of higher cognitive functioning in his examination by Dr Protulipac than he demonstrated in his examination by Ms Roberts. He demonstrated a better understanding of details of his financial circumstances, including the allowances being paid to his brother in his consultation with Dr Stevans than he demonstrated in his meetings with Ms Roberts or in his oral evidence. I have concluded that I should accept their opinions.

The plaintiff is undoubtedly subject to his brother's influence and I think would be heavily dependent on him in making decisions about the management of his finances. But that does not mean that he lacks the requisite capacity to manage his affairs. Many people, perhaps most people, would need to be guided by others in managing an estate the size of the plaintiff's. There is no evidence that the plaintiff would be unwise to rely on his brother. He is grateful to his brother for giving him a better life. There is no evidence that his brother has sought to take financial advantage of the plaintiff. There is no evidence to support the reported allegations of the plaintiff's siblings or his daughter that his brother sought to take advantage of him. There is no evidence of the reported attempt by P to have the plaintiff sign over important documents at the Commonwealth Bank that could give P control of his finances. That suggestion lacks credibility given that the plaintiff's estate was subject to financial management by the NSW Trustee.

Nor did the NSW Trustee attempt to demonstrate that the major complaints made against it by the plaintiff and his brother lacked any reasonable basis. The complaint against the solicitor who acted on the application for an apprehended violence order against B was without substance, but that would only have been apparent to the plaintiff at the time if he could have followed the course of proceedings in the Local Court, which he could not have done unless they were translated. In any event, this was not one of the major complaints.

Had it been shown that there was no reasonable basis for any of the substantial complaints then I might have concluded that the plaintiff's attitude demonstrated a paranoia consistent with the continuation of the substantial brain damage noted in 2005. But that was not shown. Nor was there any evidence to contradict the colourful assertions made by the plaintiff as to his treatment by his former wife. It does not appear that any investigation was carried out in relation to the alleged financial exploitation of the plaintiff by B in relation to particular withdrawals from his bank account that Ms Jochelson, the authorised visitor, recommended the NSW Trustee carry out (see [25] above). The delays of over three months in approving payments to P were not explained. Whilst the NSW Trustee provided statements to the plaintiff of cash movements in the accounts managed for him, the statements provided did not show the income earned on his investments so as to permit a ready understanding of his income versus his expenditure. There was no evidence from the plaintiff's former wife, B.

Accordingly, whilst I have reservations about the plaintiff's complaints, I cannot conclude that they lack any rational basis. It would be wrong to use scepticism about those complaints overtly or subconsciously as a ground for concluding that the plaintiff lacked capacity to manage his affairs.

As Ms Roberts accepted, the plaintiff showed the capacity to manage simple day-to-day transactions. He did not appear to have any interest in keeping track of his spending or budgeting with his weekly allowance, but there was no particular reason for him to do so. His weekly allowance was perfectly adequate for his cash requirements. The plaintiff showed insight in answering questions as to how he would go about selling or buying real property. He showed that he would rely on the expertise of others, such as a valuer to determine the price at which he would be prepared to sell. He showed awareness of the additional imposts that would be incurred in the purchase of a house. I think his evidence that he would rely on the Commonwealth Bank, on his lawyers and on his brother in deciding how to invest surplus funds was genuine and demonstrated the capacity to manage his affairs.

The fact that the plaintiff is vulnerable to his brother's influence does not mean that he lacks capacity. Many people are vulnerable to the influence of others. On the other hand, the plaintiff's vulnerability is compounded by the damage to his brain, but there is nothing to show that his confidence in his brother is not well-placed. It would not be right to give credence to the innuendo against P from other members of the plaintiff's family. That is to say, the plaintiff's gratitude to his brother and his expressed willingness to acknowledge that gratitude by paying additional money to his brother if he were asked to do so, and the step he has taken to make his brother's son the beneficiary of his will, at least pending any rapprochement with his daughters, does not indicate a lack of capacity.

During the hearing I expressed a particular concern as to whether the plaintiff had capacity to manage that part of his affairs that related to the family law proceedings involving B. It is likely that if the financial management order is revoked and the plaintiff can assume control of that litigation, his judgment as to the reasonableness of an offer of settlement and the amount of costs that should be incurred in the litigation will be affected by his emotional distress at how he says he was treated. That does not indicate a lack of capacity. If the plaintiff's complaints against his former wife are well-founded, that is, if she did use his money to enrich herself and her family, then his resistance to the proposed settlement is not unreasonable. The apparent absence of any investigation by the NSW Trustee of the plaintiff's complaints of financial manipulation by his former wife again indicates that his attitude to the proposed settlement is not irrational, even though the proposed settlement might well be in the plaintiff's best interests. The question is whether the plaintiff has the capacity to judge what is in his best interests. I have ultimately concluded that the plaintiff has the capacity to take and act on advice from lawyers whom he trusts to make that assessment.

For these reasons I have concluded that the plaintiff is capable of managing his affairs and the financial management order should be revoked. There should be an order that the NSW Trustee do what is necessary to transfer control of the plaintiff's assets to the plaintiff or as he might direct in writing.

I understood from the submissions of counsel for the plaintiff that if the financial management order were revoked, the plaintiff did not press a claim for an inquiry into the management of his estate by the NSW Trustee. No submissions were made as to the jurisdiction to make such an order (but see Re C [2012] NSWSC 1097 at [73]). In any event the evidence would not justify such an order. As the plaintiff will have control of his own affairs, if he considers that he has any claim against the NSW Trustee in relation to the management of his estate he will be free to bring such a claim himself.

I will stand over the proceedings to a date to be fixed. I direct the plaintiff's counsel to bring in short minutes of order in accordance with these reasons. The NSW Trustee is entitled to its costs of the proceedings out of the plaintiff's estate on the indemnity basis.

Decision last updated: 19 December 2014

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