Rodgers, in the matter of Anderson
[2023] NFSC 7
•22 December 2023
SUPREME COURT OF NORFOLK ISLAND
Rodgers, in the matter of Anderson [2023] NFSC 7
File numbers: SC 7 of 2023
SC 8 of 2023Judgment of: BESANKO CJ Date of judgment: 22 December 2023 Date of publication of reasons: 7 May 2024 Catchwords: PRACTICE AND PROCEDURE — two applications seeking orders under ss 102 and 103 of the Lunacy Act 1898 (NSW), in its application to Norfolk Island pursuant to s 3 of the Lunacy Act 1932 (NI) — whether Mrs Anderson is of unsound mind and is incapable of managing her own affairs — consideration of when a committee of the person should be appointed — whether the orders are in Mrs Anderson’s best interests — whether the Court has the power to make the orders sought — applications granted Legislation: Lunacy Act 1932 (NI) ss 3, 5
Lunacy Act 1898 (NSW) ss 102, 103
Cases cited: M v M [1981] 2 NSWLR 334
Northern Territory of Australia v EH [2021] NTSCFC 5
Number of paragraphs: 25 Dates of hearing: 21 and 22 December 2023 SC 7 of 2023: Counsel for the Applicant: The Applicant appeared in person SC 8 of 2023: Counsel for the Applicant: Ms K Dimes-Letters (21/12/23)
Ms A Lofaro (22/12/23)Solicitor for the Applicant: MinterEllison ORDERS
SC 7 of 2023 IN THE MATTER OF THE LUNACY ACT 1898 OF NEW SOUTH WALES IN ITS APPLICATION TO NORFOLK ISLAND RE: FLORENCE ANNE ANDERSON
DAVID JOHN RODGERS
Applicant
ORDER MADE BY:
BESANKO CJ
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant be appointed without security to undertake the care and management of the property of the said FLORENCE ANNE ANDERSON pursuant to section 103 of the Lunacy Act 1898 (NSW) as applied to Norfolk Island by the provisions of the Lunacy Act 1932 (NI).
2.The applicant be empowered to sell, call in and convert into money such part or parts of the estate of the said FLORENCE ANNE ANDERSON whether real or personal as the applicant thinks fit and for such purpose to execute or sign all instruments necessary thereto.
3.The applicant be empowered to retain as an authorised investment such part or parts of the estate of the said FLORENCE ANNE ANDERSON as the applicant thinks fit.
4.The applicant be empowered to apply the income and such part or parts of the capital fund as he thinks fit in or towards the care, maintenance, medical treatment or support of the said FLORENCE ANNE ANDERSON, including as directed by, or in conjunction with the person(s) appointed committee of her person for FLORENCE ANNE ANDERSON.
5.The applicant be empowered to commence appropriate proceedings to ensure that adequate provision is made for the care and maintenance of the said FLORENCE ANNE ANDERSON from the estate of her late husband.
6.Liberty to apply.
THE COURT NOTES:
A.This order is to be read in conjunction with the Order of this Honourable Court in matter SC 8 of 2023.
ORDERS
SC 8 of 2023 IN THE MATTER OF MRS FLORENCE ANDERSON
THE NORFOLK ISLAND HEALTH AND RESIDENTIAL AGED CARE SERVICE
Applicant
ORDER MADE BY:
BESANKO CJ
DATE OF ORDER:
22 DECEMBER 2023
THE COURT DECLARES THAT:
1.Mrs FLORENCE ANDERSON is of unsound mind and is incapable of managing her own affairs within s 102 of the Lunacy Act 1898 (NSW) as applied to Norfolk Island by the provisions of the Lunacy Act 1932 (NI) and further lacks legal capacity in respect of decision-making for personal matters, including but not limited to decisions in relation to her accommodation and care.
THE COURT ORDERS THAT:
2.LOANNE BRANDSTATER be appointed as a committee of the person for FLORENCE ANDERSON pursuant to section 102 of the said Lunacy Act 1898 (NSW), to make such decisions for and on behalf of FLORENCE ANDERSON as are necessary and in FLORENCE ANDERSON’s best interests, including as to accommodation and care matters.
3.Liberty to apply.
THE COURT NOTES THAT:
It is in the best interests of FLORENCE ANDERSON that the above orders be made.
This order is to be read in conjunction with the Order of this Honourable Court in matter SC 7 of 2023.
[
REASONS FOR JUDGMENT
BESANKO CJ:
Introduction
These are my reasons for orders made on 22 December 2023. There were two actions before the Court. The first was commenced by a Notice of motion seeking orders with respect to the affairs of Florence Anne Anderson under s 103 of the Lunacy Act 1898 (NSW) (the Lunacy Act), in its application to Norfolk Island pursuant to s 3 of the Lunacy Act 1932 (NI). The applicant in the first application is Mr David Rodgers. The second application sought orders to enable the applicant to relocate Mrs Anderson from a care facility on Norfolk Island to a more suitable aged care facility in New South Wales. The second application sought that orders be made either by way of the Court exercising parens patriae jurisdiction or pursuant to s 102 of the Lunacy Act. The applicant in the second application is the Norfolk Island Health and Residential Aged Care Service (NIHRACS). The applications were heard together and on an urgent basis.
Mrs Anderson is 85 years of age, suffers from dementia and has been an inpatient at NIHRACS since 20 October 2023 when her husband Mr John Gilbert Anderson became ill and then passed away on 7 November 2023. Prior to her husband’s death, Mrs Anderson was cared for by Mr Anderson at the matrimonial home. Mrs Anderson has no family members or potential caregivers located on Norfolk Island.
In the first application, Mr Rodgers seeks the following orders:
1.That the applicant be appointed without security to undertake the care and management of the property of the said FLORENCE ANNE ANDERSON pursuant to section 103 of the Lunacy Act 1898 of New South Wales in it's application to Norfolk Island.
2.That the applicant be empowered to sell call in and convert into money such part or parts of the estate of the said FLORENCE ANNE ANDERSON whether real or personal as the applicant thinks fit and for such purpose to execute or sign all instruments necessary thereto.
3.That the applicant be empowered to retain as an authorised investment such part or parts of the estate of the said FLORENCE ANNE ANDERSON as the applicant thinks fit.
4.That the applicant be empowered to apply the income and such part or parts of the capital fund as he thinks fit in or towards the care, maintenance, medical treatment or support of the said FLORENCE ANNE ANDERSON.
5.That the applicant be empowered to commence appropriate proceedings to ensure that adequate provision is made for the care and maintenance of the said FLORENCE ANNE ANDERSON from the estate of her late husband.
6. Any further Orders as the Court deems meet.
In the second application, NIHRACS seeks the following orders:
1.A declaration that Mrs Florence Anderson lacks legal capacity in respect of decision making for personal matters, including but not limited to decisions in relation to her accommodation and care.
2.A declaration in the following terms:
a.That it is in the best interests of Mrs Florence Anderson to be transferred from her current temporary accommodation at the Norfolk Island Health and Residential Aged Care Service (NIURACS) to the Cooranbong Dementia and Memory Unit (Adventist Senior Living), New South Wales, or other like service as may become available from time to time, for her ongoing accommodation and care;
b.NIHRACS, including by its medical practitioners, nurses and staff acting on its behalf in providing medical, nursing or other accommodation and care services to Mrs Florence Anderson, are authorised to take all steps necessary to permanently relocate Mrs Florence Anderson, from the NIHRACS facility on Norfolk Island to the Cooranbong Dementia and Memory Unit (Adventist Senior Living) in New South Wales, including but not limited to:
i.transport of Mrs Florence Anderson from NIHRACS to the Norfolk Island airport, with a NIHRACS staff escort;
ii.transport of Mrs Florence Anderson by aeroplane from Norfolk Island to Sydney airport, Sydney, New South Wales;
iii.Transport of Mrs Florence Anderson from Sydney airport to the Cooranbong Dementia and Memory Unit (Adventist Senior Living), Cooranbong, New South Wales;
c.NIHRACS medical practitioners, nurses and staff acting on its behalf in providing medical, nursing and other accommodation and care services to Mrs Florence Anderson are authorised to use reasonable force, as necessary, to ensure Mrs Florence Anderson's safe transport from the NIHRACS to Cooranbong Dementia and Memory Unit (Adventist Senior Living) in New South Wales.
3. Further, or in the alternative to order 2, a declaration in the following terms:
a.That Julie Behrens and Loanne Brandstater shall be appointed as a committee of the person for Mrs Anderson pursuant to section 102 of the Lunacy Act 1989 (NSW), as adopted into law in Norfolk Island pursuant to section 3 and section 5 of the Lunacy Act 1932 (NI).
4.A declaration that it is in the best interests of Mrs Florence Anderson that these orders be made.
5. Any other orders that the Court considers appropriate.
The first application is supported by an affidavit of Mr Rodgers. Mr Rodgers deposes to that fact that he is the executor and trustee of Mr Anderson’s will. The will contains a provision to the following effect:
6.1I give devise and bequeath my estate to my trustee upon trust to be dealt with as follows:
(a) (i) to give (subject to the following bequests) the rest and residue of my estate to be held upon trust for the care, maintenance, medical treatment, upkeep and management of my wife FLORENCE ANNE ANDERSON (my wife) who unfortunately suffers from illness and effects of Dementia, should my wife survive me for a period of 30 days after my death, (the management and care of my wife shall include the management and care of her personal and financial affairs while she is alive or to engage appropriate qualified professionals for those purposes or any of them)”.
Mr Rodgers submitted that the direction in the will in relation to the management and care of Mrs Anderson’s personal and financial affairs is “not an achievable direction at law”. He submitted that Mrs Anderson has not executed an Enduring power of attorney and has no living relative or next of kin located on Norfolk Island to assist with the care and management of her property. Since Mrs Anderson has moved into NIHRACS and her husband has passed away, there are no arrangements in place for the payment of her care or any other expenses associated with her care and maintenance.
At the hearing Mr Rodgers said he has known Mrs Anderson for “many, many years” and has observed a decline in her mental capacity. When he saw Mrs Anderson while her husband was caring for her in the matrimonial home, she didn’t recognise her husband and would say “who’s this man?”. Mr Rodgers recently visited Mrs Anderson at NIHRACS and said that while Mrs Anderson was cordial and pleasant, she was not aware of events taking place around her and “had no idea her husband has died”.
Mr Rodgers also relies on affidavits of Dr Jodie McCoy, medical superintendent at NIHRACS and Dr Peter Hopcroft, medical practitioner at NIHRACS. Both Dr McCoy and Dr Hopcroft depose to the fact that Mrs Anderson suffers from an advanced form of senile dementia which is unlikely to improve. They also state that Mrs Anderson’s memory is deficient and she is incapable of managing her own affairs.
Mrs Anderson’s nieces, Mrs Julie Behrens and Mrs Loanne Brandstater attended the hearing in support of the application by NIHRACS. Mrs Brandstater provided an affidavit in support of the application and Mrs Behrens provided additional information in support of the application during the hearing. Although they have been unable to see her recently, Mrs Brandstater and Mrs Behrens would spend time with Mrs Anderson when she visited Australia. Mrs Behrens and Mrs Brandstater live in New South Wales and care for Mrs Anderson’s sister, Mrs Mima Roberts, who is a resident at an aged care facility which provides appropriate care for those suffering cognitive difficulties. The orders sought in the second application seek that Mrs Anderson reside at the same facility as her sister. Mrs Roberts’ husband passed away recently and now Mrs Behrens and Mrs Brandstater visit her about once a week. Mrs Behrens has a power of attorney and is the enduring guardian for Mrs Roberts and both of Mrs Anderson’s nieces recall Mrs Roberts and Mrs Anderson always having a very close relationship. Mrs Roberts is concerned for her sister’s welfare and would like to be close to her if possible.
Mrs Behrens reported that Mrs Anderson has a nephew in Brisbane who is supportive of the application by NIHRACS. Mrs Anderson also has cousins in Queensland but has had no connection with them for many years.
Ms Maria McCann, Accredited Clinical Social Worker and Aged Care Assessor, works for NIHRACS and has been involved with Mrs Anderson’s care for two and a half years. Ms McCann provided an affidavit in support of NIHRAC’s application and attended the hearing. Ms McCann’s affidavit annexes a report from Professor Peter Gonski diagnosing Mrs Anderson with moderate to severe Alzheimer’s disease and a report of Specialist Geriatrician and General Physician, Dr Sarah Fox, which indicates that “due to advanced Alzheimers dementia she [Mrs Anderson] lacks decision making capacity… she also lacks capacity as it related to healthcare and accommodation”. Ms McCann’s notes also record conversations with Mr Anderson before he died in which he indicated Mrs Anderson should move from Norfolk Island to be closer to her sister once he passed away.
Ms McCann explained that NIHRACS does not have a secure dementia setting, suitably qualified staff or the resources to appropriately accommodate a person with advanced dementia. Mrs Anderson is currently in a room normally used for mental health patients and that room is sparse and not a suitable or stimulating environment for a person in Mrs Anderson’s condition. There are no other residential aged care facilities and no secure dementia units on Norfolk Island. Ms McCann reports that Mrs Anderson is becoming increasingly unsettled. For example, Mrs Anderson wants to go outside for walk and while nursing staff try, they are unable to take Mrs Anderson out for walks when the ward is too busy and this has led to Mrs Anderson “disappearing” on her own on several occasions including on one occasion where the police needed to be called to assist with locating her.
The evidence in each application was not contested and the parties were content for the evidence in one application to be considered in the other and vice vera.
Relevant legislation
Pursuant to ss 3 and 5 of the Lunacy Act 1932 (NI), the Lunacy Act 1898 (NSW) (the Lunacy Act) applies to Norfolk Island.
The relevant sections of the Lunacy Act are as follows:
102.Where it is proven to the satisfaction of the Court that a person is of unsound mind and incapable of managing his affairs, the Court may make a declaration to that effect, and may direct a reference to the Master to make inquiries concerning the property of such person, and may make all proper orders for rendering the property of such person, or the income thereof available for the payment of his debts and for the maintenance or benefit of himself and his family, and for carrying on his trade or business (if any), and may, if necessary, appoint a committee of his estate, and also when desirable a committee of his person.
103.(1) Where it is proved to the satisfaction of the Court that any person is. through mental infirmity, arising from disease, or age, incapable of managing his affairs, the. Court may make all proper orders for rendering the property and income of the said person available for the payment of his debts and for the maintenance and benefit of himself and his family; and may make orders for the care and management of his property in all respects as if he were an insane person; and may, if necessary, appoint any person, either with or without security, to undertake the care and management of his property under the order and direction of the Court.
(2) The person so appointed shall, subject to the said orders and directions and to the rides of Court, have the same powers and be subject to the same obligations and control as a committee of the estate, of an insane person, and the powers and provisions contained in this Act relating to the management and administration of the estates of insane persons shall apply to the estates of incapable persons.
The Lunacy Act defines an incapable person as being “any person who has been found or declared, whether by inquisition or under this Act, or under any Act hereby repealed, to be insane or of unsound mind and incapable of managing himself or his affairs”.
As I will explain, I have reached the conclusion that is appropriate that orders be made in each application under the Lunacy Act. As such, it is not necessary for me to consider the Parens Patriae jurisdiction of the Court in relation to NIHRACS’s application.
Should the orders be made ?
I have considered the evidence in both applications, and I am satisfied that Mrs Anderson’s diagnosis of advanced dementia means that she does not have decision making capacity and will not regain such capacity. For this reason, I consider Mrs Anderson is of unsound mind and is incapable of managing her own affairs for the purpose of ss 102 and 103 of the Lunacy Act.
Having regard to Mr Rodgers role as executor of the Estate of Mr Anderson, location on Norfolk Island where most of Mrs Anderson’s assets are, long term knowledge of Mrs Anderson and his experience as a previous Registrar of this Court and a Master in Lunacy, it is appropriate that he be appointed to undertake the care and management of Mrs Anderson’s property pursuant to s 103 of the Lunacy Act.
I then turn to consider whether it is appropriate to appoint a committee of the person under s 102 of the Lunacy Act. Counsel for NIHRACS referred to the decision of Helsham CJ in Eq in M v M [1981] 2 NSWLR 334, in that case his Honour considered when a committee of a person could be appointed and said as follows (at 336):
It would be wrong to attempt to formulate in advance the criteria for judging the desirability or otherwise of appointing a committee of the person in any particular case of a person who is mentally ill and incapable of managing his affairs. But I think it can be said that such an appointment would not be desirable unless it is adjudged to be for the benefit of the person who is to be protected. Thus in relation to an order made under s 102 of the Lunacy Act, 1898 (Imp) (which is in virtually identical terms to s 38 of the 1958 Act), which order included an appointment of a committee of the person of the applicant, Lord Davey said:
“It must be remembered that this particular jurisdiction is one of some peculiarity and difficulty. It exists for the benefit of the lunatic, and the guiding principle of the whole jurisdiction is what is most for the benefit of the unhappy subject of the application.”(ReMcLaughlin [1905] AC 343, at p 347.)
In another case Lord Halsbury said:
“The theory upon which proceedings in Lunacy are taken is, that the proceedings are for the benefit and protection of the persons who are believed to be incapable, by reason of mental infirmity, of protecting themselves and their property.”(Re Cathcart [1893] 1 Ch 466, at p 471.)
NIHRACS submitted that a committee of his or her person has the power to change the subject person’s residence and the power to use force to detain a protected person, and authorise others to do the same. In support of this proposition, counsel referred to Northern Territory of Australia v EH [2021] NTSCFC 5 in which the Full Court considered Lunacy Acts in England and Australia for the purpose of the historical context to the Guardianship of Adults Act 2016 (NT). The Full Court made the following observations (at [9]–[11]):
The appointment of substitute decision-makers for the protection of the property and personal interests of vulnerable citizens developed as part of the parens patriae jurisdiction. The courts of chancery could appoint a guardian (known as a “committee”) to look after the property and person of a ward, and developed special principles and concepts, such as the “best interests” test, to be applied in the exercise of powers by guardians. That jurisdiction was given to the superior courts of the Australian colonies, and the powers conferred were inherent and plenary in nature unless modified by legislation.
The Lunacy Act 1890 (53 Vict ch 5) was enacted to govern mental health law in England and Wales, and many of its features were copied in the Australian colonies. The analogue legislation in Australia generally conferred a lunacy jurisdiction on the relevant Supreme Court, but preserved the operation of the general law concerning the appointment and powers of a guardian (still called a “committee”) except to the extent that the general law was altered by the legislation. The legislation provided that when proved to the satisfaction of the Court that a person was of unsound mind and incapable of managing his or her affairs, a “committee of his estate” could be appointed if necessary, and also “a committee of his person” when desirable.
The legislation also authorised justices to issue warrants for the apprehension of an “insane” person, and to direct that person to be received into a hospital for the insane or a licensed house (subject to requirements for medical certification). The legislation was largely silent as to the powers of a committee when appointed. However, the legislation assumed that a committee of the person appointed by the Court had authority at general law to direct the represented person to be received into a hospital for the insane or a licensed house. A committee could also “settle and change at pleasure the lunatic's residence”, and “select a licensed house as the place of enforced residence”. That included authority on the part of the committee, when appointed, “to cause the removal of the lunatic from one place of residence to another if circumstances justify such action”. That power extended to using force to detain a protected person, and to authorise others to do the same.
(citations omitted.)
I had regard to the authorities to which I was referred. I am satisfied that I have the power to make the orders sought. I consider that having regard to the authorities, Mrs Anderson’s medical condition means she falls within the terms of s 102 of the Lunacy Act. Having regard to the evidence, it is appropriate and in Mrs Anderson’s best interests for a committee of the person be appointed and for that person to be Mrs Brandstater. I am also satisfied that a committee of the person has the power to make decisions on behalf of Mrs Anderson, including as to her accommodation and care.
Conclusions
The orders made were put before the Court during the hearing of the applications and were similar but did not entirely mirror the orders sought in the originating documents.
For the above reasons, I make the following orders in the first application:
THE COURT ORDERS THAT:
1.The applicant be appointed without security to undertake the care and management of the property of the said FLORENCE ANNE ANDERSON pursuant to section 103 of the Lunacy Act 1898 (NSW) as applied to Norfolk Island by the provisions of the Lunacy Act 1932 (NI).
2.The applicant be empowered to sell, call in and convert into money such part or parts of the estate of the said FLORENCE ANNE ANDERSON whether real or personal as the applicant thinks fit and for such purpose to execute or sign all instruments necessary thereto.
3.The applicant be empowered to retain as an authorised investment such part or parts of the estate of the said FLORENCE ANNE ANDERSON as the applicant thinks fit.
4.The applicant be empowered to apply the income and such part or parts of the capital fund as he thinks fit in or towards the care, maintenance, medical treatment or support of the said FLORENCE ANNE ANDERSON, including as directed by, or in conjunction with the person(s) appointed committee of her person for FLORENCE ANNE ANDERSON.
5.The applicant be empowered to commence appropriate proceedings to ensure that adequate provision is made for the care and maintenance of the said FLORENCE ANNE ANDERSON from the estate of her late husband.
6.Liberty to apply.
THE COURT NOTES:
A.This order is to be read in conjunction with the Order of this Honourable Court in matter SC 8 of 2023.
For the above reasons, I make the following declaration and orders in the second application:
THE COURT DECLARES THAT:
1.Mrs FLORENCE ANDERSON is of unsound mind and is incapable of managing her own affairs within s 102 of the Lunacy Act 1898 (NSW) as applied to Norfolk Island by the provisions of the Lunacy Act 1932 (NI) and further lacks legal capacity in respect of decision-making for personal matters, including but not limited to decisions in relation to her accommodation and care.
THE COURT ORDERS THAT:
2.LOANNE BRANDSTATER be appointed as a committee of the person for FLORENCE ANDERSON pursuant to section 102 of the said Lunacy Act 1898 (NSW), to make such decisions for and on behalf of FLORENCE ANDERSON as are necessary and in FLORENCE ANDERSON’s best interests, including as to accommodation and care matters.
3.Liberty to apply.
THE COURT NOTES THAT:
It is in the best interests of FLORENCE ANDERSON that the above orders be made.
This order is to be read in conjunction with the Order of this Honourable Court in matter SC 7 of 2023.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Besanko. Associate:
Dated: 7 May 2024
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