Francesca Dimasi by her duly appointed Administrator Dianne Elizabeth Summers v Walsh [2003] WADC 230 (30 October 2003)

Last Updated: 29 November 2006

________________________________________________________________

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH

CITATION : FRANCESCA DIMASI by her duly appointed Administrator DIANNE ELIZABETH SUMMERS -v- WALSH [2003] WADC 230

CORAM : FENBURY DCJ

HEARD : 20 OCTOBER 2003

DELIVERED : 30 OCTOBER 2003

FILE NO/S : CIV 2544 of 1998

BETWEEN : FRANCESCA DIMASI by her duly appointed Administrator DIANNE ELIZABETH SUMMERS

Plaintiff

AND

JOSEPH WALSH

Defendant

Catchwords:
Application to declare trust beneficiary no longer under disability - Jurisdiction of District Court to entertain application and to determine trust - Termination of court appointed trust - Parens patriae jurisdiction - Turns on own facts

Legislation:
Guardianship and Administration Act 1990, s 3
Rules of the Supreme Court, O 70, r 1, r 12

Result:
Order that the Public Trustee pay all moneys presently held in trust to the plaintiff

Representation:

Counsel:

Plaintiff : Mr J R Tydde

Defendant : Mr A R Rorrison

Solicitors:

Plaintiff : Tydde & Co

Defendant : Public Trustee

Case(s) referred to in judgment(s):

Bryn Jones, an infant by his next friend Jean Isabella Jones & Anor v Moylan [2000] WASCA 361

Harold Joseph Martin Cadwallender by his next friend Stavroulla Cadwallender v The Public Trustee [2003] WASC 72

Newton v The Public Trustee (No 1) [1999] WASC 179

Perpetual Trustees (WA) Limited v Naso [1999] WASCA 80

Case(s) also cited:

Nil

FENBURY DCJ:

Background

1 The plaintiff was a passenger in a motor vehicle involved in a rollover on 18 December 1994 when she was 18 years old. She suffered severe injuries including a severe closed head injury and a fracture of her cervical spine.
2 As a result of the accident the plaintiff was left with significant permanent disabilities including cognitive dysfunction.
3 Following the accident proceedings were taken on behalf of the plaintiff pursuant to the provisions of the Guardianship and Administration Act 1990 as a result of which an administrator was appointed on 5 October 1995 pursuant to the provisions of s 64 of the Act. The Administration Order, a copy of which is annexed to the applicant's affidavit of 23 May 2002 (Annexure FD1) was couched in limited terms and specifically stated:

"Mrs Dianne Elizabeth Summers...be granted leave to apply AND IS HEREBY APPOINTED LIMITED ADMINISTRATOR of the estate of the represented person with the following function:

1. To bring, and defend, actions, suits and other legal proceedings in the name of the represented person and in particular to instruct Counsel on her behalf in connection with an action for damages for personal injuries arising out of a traffic accident on or about 18 December 1994.

2. The Administration Order be reviewed by 5 October 2000..."

4 By her duly appointed administrator, her mother, Dianne Elizabeth Summers, the plaintiff commenced an action in this Court for damages for personal injuries in about June 1998.
5 Following a trial that took place before me in this Court on 9, 10 and 11 November 1999 damages were assessed on 26 November in the sum of $946,670.61 subject to management fees to be advised.
6 Shortly thereafter orders were made in standard form to the effect that the amount the subject of the judgment was to be paid to the Public Trustee for investment on trust for the plaintiff. There was also an order made that there be liberty to apply.
7 The question of whether the plaintiff was a person under disability within the meaning of the Rules of the Supreme Court O 70, r 1 was not raised as an issue at the hearing of the action. Although the matter was never addressed, clearly the plaintiff was indeed "a person under disability" by reason of the fact that she was "a represented person" by reference to Rules of the Supreme Court O 70, r 1 and s 3 of the Guardianship and Administration Act 1990. She was a person in respect of whom an Administration Order had been made and was in force.
8 A term of the Administration Order was that it be reviewed by 5 October 2000 being five years after the order was made. During that five year period it seems that the plaintiff achieved a greater extent of recovery than was initially forecast.
9 In March 2000 the plaintiff wished to purchase her own home. She obtained a letter from her general practitioner to help her satisfy an apparent query made by the Public Trustee as to her capacity to enter into a contract. In that letter, dated 12 March 2000, which is Annexure FD3 to her affidavit, Dr Margaret Trudgen speaks of being the plaintiff's GP from December 1998 and then states:

"Despite brain damage as a result of a motor vehicle injury in 1994 which affects her memory and concentration, Francesca is well able to understand the implications and possible consequences of the sale of her house to the Public Trustee (sic).
In my opinion she is legally capable of entering into a contract with the Public Trustee for the sale of her share of the house."

Significantly, I think, the plaintiff's general practitioner identified her difficulties as being to do with memory and concentration. She did not specify any other difficulties.
10 As the date for the five year review required by the Guardianship and Administration Board loomed, being 5 October 2000, the plaintiff and her family apparently concluded that she no longer required an administrator. In par 18 of her affidavit of 23 May 2002 the plaintiff put it like this:

"Ricky and I visited the offices of the Administration and Guardianship Board. My mother and her husband also attended. We all discussed the matter with a review officer from the Board. My mother was asked whether she believed the order ought to be revoked and she said that she was content for it to be revoked, I agreed. The officer asked if there were any questions from any persons present. As there were none it was agreed to revoke the order."

11 The order was revoked on 17 October 2000 (Annexure FD4 to the plaintiff's first affidavit).
12 In early 2001 the plaintiff obviously felt that she was capable of driving a motor vehicle. Her GP referred her to an organisation that assesses injured persons who wish to resume driving. The plaintiff was examined by an occupational therapist who conducted clinical testing and reached the view that the plaintiff, on clinical screening, did not present with significant physical, perceptual or cognitive deficits "which would impact on driving skills". It was recommended that the plaintiff undertake a practical licensing test and it now is the case that she has a driver's licence and drives her own motor vehicle.

This application

13 By a chamber summons dated 25 May 2002 the plaintiff seeks orders inter alia that:

"1. The trust created in favour of the Public Trustee herein be terminated.

2. The trust moneys comprising the trust be delivered to the applicant."

14 In effect the plaintiff seeks access to the remaining proceeds of her judgment without further involvement of the Public Trustee. I am told that the amount of the plaintiff's judgment that remains is approximately $510,000.
15 The issue between the parties that required initial determination, and was the reason for the listing of this special appointment, was the question of whether this Court had jurisdiction to hear this application at all. Each party, in accordance with the directions of the Court, had filed an outline of argument. During the course of brief submissions, the parties indicated that their respective viewpoints had adequately been summarised in the outlines and there was little need for additional oral submissions.
16 It became apparent that another special appointment date had been reserved on 30 October (10 days after the hearing) at which it was anticipated the merits of the application be argued. Counsel for both parties, in the course of submissions, requested the Court to determine the merits of the matter upon the basis of what was contained in the materials, including numerous affidavits, and the outlines of submissions filed and, briefly, some supplementary observations made by counsel at the hearing. Thus these reasons relate to the issue of jurisdiction and also the question of whether the plaintiff can be permitted to conduct her own affairs and have access to the remainder of her judgment funds.
17 It is however convenient to refer briefly to a threshold issue raised by counsel for the plaintiff and mentioned in his outline of argument. In short it was submitted that the District Court had never made any declaration that the plaintiff was incapable of managing her own affairs "in respect of the proceedings or otherwise". It was observed that the order for payment to the Public Trustee made by the Court was on the basis that she was a represented person pursuant to the provisions of the Guardianship and Administration Act and "no-one objected".
18 It was submitted that given the Administration Order has since been revoked (on 17 October 2000) then, in effect, "the power of the Public Trustee to administer the fund" is also revoked. It was submitted that absent any declaration of incapacity, upon revocation of the Administration Order then any trust was terminated. It was put that if this argument was correct then there is no need to consider the issues of jurisdiction nor to determine the matter upon the merits.
19 Counsel for the Public Trustee made no comment about this submission and it seems to me that it has some, perhaps superficial, attraction given that its acceptance would avoid the Court having to deal with the other issues raised in the matter.
20 As I have indicated at trial the plaintiff was a person under disability because she was a represented person (Rules of the Supreme Court, O 70, r 1).
21 Order 70, r 12(1)(a) states:

"...where in any proceedings money is...adjudged or ordered...to be paid to or for the benefit of a person under disability...
the money shall, unless otherwise ordered by the Court, be paid to the Public Trustee for investment on behalf of the person under disability, and if the Court so orders may be invested by the Public Trustee in investments outside the Common Fund."

22 Thus it was that this Court made the orders it did on 26 November 1999. At the time the plaintiff was a represented person. The effect of ordering that the proceeds of the judgment be paid to the Public Trustee on the plaintiff's behalf was that a trust was created.
23 It seems to me that the fact that, since that time, the plaintiff has ceased to be a person under disability as contemplated by O 70 is not a matter which, of itself, without more, has any effect upon the continuing existence of that trust.
24 Whilst it has its attractions I do not think counsel for the plaintiff's "neat point" can be accepted.

Jurisdiction of the District Court

25 Counsel submitted that the District Court has jurisdiction to entertain the application. He relied upon a decision of a single judge of the Supreme Court of Western Australia in Harold Joseph Martin Cadwallender by his next friend Stavroulla Cadwallender v The Public Trustee [2003] WASC 72, a decision delivered on 11 April 2003. (E M Heenan J)
26 In Cadwallender's case the plaintiff suffered serious head injury in a motor vehicle accident and commenced an action for damages in the District Court. Pursuant to O 70, r 1 of the Rules of the Supreme Court the plaintiff was considered to be a person under a disability. The proposed settlement of the action in the sum of $100,000 needed to be approved by this Court pursuant to r 10. Such approval was given and the Public Trustee administered the trust over the following period of some nine or so years.
27 Apparently the plaintiff made a good recovery from his injuries and in due course he sought a declaration that he had recovered to a sufficient extent to be able to conduct proceedings on his own behalf and to be able to control all property held by the Public Trustee on trust for him. He sought orders, inter alia, that moneys held by the Public Trustee should be vested in him and transferred to him absolutely. Those orders were sought in the Supreme Court.
28 His Honour E M Heenan J made the orders sought but in his reasons also dealt at length with the question of whether the District Court had jurisdiction to deal with the matter given that it was in the District Court that the initial orders were made. At par 38 his Honour said:

"If the District Court originally had jurisdiction to hear and determine a cause of action brought by a disabled person acting through a next friend, and to approve a compromise of that action on terms which provide that the proceeds of the settlement should be held on trust by an independent trustee for the benefit of the plaintiff until further order and with liberty being reserved to apply to the Court with respect to the invested moneys, it is difficult to understand why that is not a continuing jurisdiction with respect to all matters arising under the court appointed trust."

29 And further at par 42:

"As it is the parents patriae jurisdiction which confers the power on the court to supervise the trust and to deal with questions arising from its administration, then that same jurisdiction must empower the court to determine whether or not the circumstances which have prompted the necessity for the establishment of the trust have disappeared so that the person, whose interests the court was until that point protecting, may take over the control of property which has been held for his or her benefit. It is difficult to see how this could be anything but the last act in the exercise of that protective jurisdiction."

30 His Honour went on to consider the matter more specifically in par 49 and then at par 50 he said this:

"I consider that it is desirable that issues concerning the administration of such court appoint trusts, and, in particular, applications for the termination of the trusts and transfer to the beneficiary of the trust property, should be brought in the court which ordered the establishment of the trust and the proceedings in which that was ordered. Not only has that court already exercised the protective parens patriae jurisdiction in respect of the particular claimant, but it will have the direct experience and record relating to the composition of the funds which created the trust, the details of the damages suffered by the claimant and the nature of his or her disability which will make it the more convenient and better equipped forum to deal with the issue than a court which has no previous acquaintance with the litigation that led to the establishment of the trust."

31 It seems to me that upon a reading of the reasons for decision in Cadwallender's case, that it is quite clear the learned Justice is of the view that this Court has jurisdiction. Although it may be that the case did not depend, in its result, upon such a determination, E M Heenan's J remarks are relatively extensive and clear.
32 Counsel for the Public Trustee, in written submissions, conceded that:

"Where the plaintiff...claims to be no longer under what previously appeared to be a permanent disability it seems axiomatic that the District Court is in the best position to assess that issue and decide whether the trust created on behalf of the plaintiff should be terminated."

However he then went on to outline what he believed to be a "degree of uncertainty on the decided cases as to the correct forum to terminate such a trust."
33 Counsel submitted that it was of critical significance in the consideration of the matter to identify whether one of the terms of the original order made by this Court in creating the trust included the phrase "until further order". It was submitted that the presence of this phrase was a determinative factor in previous decisions of the Court in Perpetual Trustees (WA) Limited v Naso [1999] WASCA 80 (Full Court) and Newton v The Public Trustee (No 1) [1999] WASC 179 – a decision of a single judge, McKechnie J. Counsel discussed these decisions, together with Bryn Jones, an infant by his next friend Jean Isabella Jones & Anor v Moylan [2000] WASCA 361 (Full Court) in his submissions and then helpfully summarised his argument in the following terms:

"There is, with respect, probably no means of reconciling all of the decisions referred to by E M Heenan J and his Honour's decision in Cadwallender itself. However in the submission of the Public Trustee, due emphasis must be given to the distinction between those trusts which are expressed to continue 'until further order' and those which are not so expressed. It is impossible to discern a consistent thread to the relevant decisions;

(a) where the order expresses the trust to continue 'until further order', the District Court preserves its jurisdiction and the beneficiary's application to terminate the trust can and should be determined by the District Court – Naso per Parker J;

(b) where the original order is not expressed to continue 'until further order' the jurisdiction of the District Court is at an end and the beneficiary's application to terminate the trust must be determined by the Supreme Court (Newton (No 1));

. . .

(d) in Cadwallender the order was 'until further order'. The observations by E M Heenan J on the District Court's jurisdiction on court trusts generally are therefore obiter dictum...

In the present case the order does not include the words 'until further order' or the like and consequently the jurisdiction of the District Court in the action is at an end except as to the investment of the trust fund."

34 Although I can follow counsel's reasoning I must say that his emphasis upon the importance of the words "until further order" seems to me to be over-stated. In any event, it seems to me that words to the effect that there be "liberty to apply" in a general sense necessarily envisage the possibility of further order being made if required. It is implicit.
35 In spite of the arguable categorisation that his Honour's remarks in Cadwallender were obiter dicta, I consider with all respect that they have persuasive authority and given the decision was delivered a mere six months ago it also has a recency.
36 In my view this Court has jurisdiction to entertain the application and, if seen fit, terminate the trust and direct the Public Trustee to pay the moneys to the plaintiff.

Should the trust be terminated?

37 In her first affidavit sworn 23 May 2002 the plaintiff clearly expresses the wish that the trust be terminated. She annexes a number of medical reports in support of her assertion that she has made a very good recovery from her injuries.
38 Annexure FD6 was a medical report of her general practitioner, Dr Trudgen, dated 14 June 2001. The report is quite comprehensive and deals in detail with the plaintiff's various difficulties. Under the section "cognitive functioning" Dr Trudgen states:

"Francesca has improved greatly over the last few years both in cognitive function and motor control. She has been keen to resume driving and has recently undergone a pre-test assessment with "Driver Access" to determine her capabilities and past her driver's testing to regain her licence. ...the cognitive screening performed as part of this assessment showed very positive results. In my opinion her cognitive functioning is sufficient for her to manager her own financial affairs at this time."

39 Dr Trudgen concludes by saying:

"It is my opinion that while Francesca has significant ongoing disability as a result of her injuries, her cognitive function and depressive mood has sufficiently improved for it to be reasonable for her to resume management of her own financial affairs, included the money provided by the insurer for her long term care.

40 Annexure FD8 comprised a report dated 26 September 2001 from Dr Kim Fong, a specialist physician in rehabilitation medicine. Dr Fong sets out a number of positive indicators relating to the plaintiff's then current level of functioning which he found to be in noticeable contrast to her previous condition. He pointed to her successful return to driving, the discontinuance of carer support, the fact that she was predominantly responsible for the finances of her household including budgeting, banking and paying bills and the way she presented at interview. Dr Fong said that she displayed a clear insight into her legal situation. Dr Fong also pointed to the plaintiff's ability to cope with the busy responsibilities of parenthood and home making.
41 In spite of the positive impression the plaintiff made upon him Dr Fong was concerned about the discrepancy between the plaintiff's presentation previously and her "new found" improvement. He strongly advised that the plaintiff undergo repeat neuropsychological evaluation in order to see whether the plaintiff's remarkable improvement was reflected in changes to her neuropsychological profile.
42 Annexure FD9 was a report from Dr Peter McCarthy, consultant psychiatrist, dated 12 October 2001. Dr McCarthy was supportive of the plaintiff's application but it must be said that he assumed the plaintiff would have the assistance of her fiancé and later her husband.
43 Following Dr Fong's recommendation the plaintiff was reassessed by a neuropsychologist. A report from Mandy Vidovich, clinical neuropsychologist registrar, dated 20 December 2001, was Annexure FD10. Ms Vidovich advocated caution before "total removal" of the Public Trustee. Following testing Ms Vidovich agreed that the plaintiff had improved in her test results since 1997 but she seemed to down play the significance of that improvement.
44 The plaintiff subsequently swore another affidavit dated 10 July 2003 which contained a number of follow-up medical reports. Dr Peter McCarthy's report of 5 September 2002 continued to be supportive although, as I have mentioned, he believed the plaintiff would have a husband to assist her. It is the case that the plaintiff and her former fiancé Mr Rick Jury, the father of her child, are no longer together.
45 Dr Fong's report of 26 August 2002 again indicated general support for the plaintiff's intentions. He had earlier seen the further neuropsychological report of Ms Vidovich. He seems to have decided to take what could be described as a more pragmatic view of the matter. In par 4 of his report Dr Fong states as follows:

"The pattern of results from Ms Dimasi's repeat neuropsychological testing indicates that she has now recovered to general average levels of performance in all of the key areas of general intellect, attention, speed of information and processing, memory, communication and new learning. The patterns of these results do not raise any concerns about her capacity to make reasonable informed decisions. Ms Dimasi seems to adequately acknowledge any possible residual problems associated with her brain injury and has consistently indicated that she would seek professional advice and to liase with her social support network before making any major financial decision. In that sense she seems to have very good insight into her condition, which is a further positive factor in determining her capacity to conduct her own affairs."

46 Dr Fong concludes that he was "now satisfied from a professional view point as a rehabilitation physician that Ms Dimasi should be deemed competent to independently control her own financial affairs."
47 Ms Vidovich in her final report of 22 November 2002, was given an opportunity to comment upon the views of Dr Fong and others and she indicated in her report that she was concerned the plaintiff will not be able properly to evaluate advice from her financial adviser. Ms Vidovich had read all the materials but was still reluctant to support the application and recommended that some form of management be retained but only for a temporary period. Ms Vidovich was the only person who expressed views along these lines.
48 Apart from the views expressed by the plaintiff herself, which were clearly to the effect that she feels competent to deal with her own affairs and wishes to do so, her application was supported by her mother who swore an affidavit of 11 July 2003 and her sister Elisha Harris-Walker who swore an affidavit of 23 October 2003.
49 Apart from these family members there were also affidavits and materials provided by the proposed financial adviser with whom the plaintiff had had some preliminary dealing. The financial adviser was, some might say of course, supportive of the plaintiff's application. I do not place much weight, with respect, on the evidence from the financial adviser in the circumstances of the case.
50 It seems to me it can be said that the predominance of medical opinion supported the plaintiff's application. Medical opinions of course are always given weight in these matters but it seems to me that there is also a body of evidence of a non-expert nature which can be given considerable significance. In my view the realities of the plaintiff's present life can provide useful and valuable information on the issue to be determined. In that regard I note that:

1. The plaintiff lives independently, running her own household, and is capable of carrying out all of the normal activities of daily living.

2. The plaintiff is now a single parent and cares for her daughter Tayla, born in April 1999 and now four and a half years old. In the absence of evidence to the contrary the plaintiff is competently meeting the responsibilities of parenthood in all its demanding facets.

3. The plaintiff has a driver's licence and drives her own motor vehicle.

4. The plaintiff no longer relies on a carer and when he acted as such, before they parted, the plaintiff's fiancé's input had declined.

51 It seems to me that these matters, which are uncontentious, strongly support the plaintiff's application.
52 There is also a body of evidence relating to the plaintiff's interest in financial matters, shares, investment strategy and the like. It is clear she has tried to better herself and increase her knowledge of finance. She seems to be a determined person.
53 However I also get the impression from reading her affidavits that she knows her limitations and that she would seek help if required. In my view that is an important factor. It seems to me that no matter what her disabilities may be, if she is aware of them and of how to cope with them and of the need to seek advice then that is also a significant matter.
54 One of the primary factors driving Ms Dimasi in this application relates to the difficulties, that she says she has had in dealing with the Public Trustee. It seems to me it is notorious that the logistical problems of dealing with a large corporation are manifest these days and that personal service may well now not be what it once was. Difficulties of this kind of course cannot weigh very significantly in the Court's consideration of this matter but, those matters aside, I have reached the view that the plaintiff should be permitted to manage her own financial affairs.
55 Accordingly I would make an order that the Public Trustee pay all moneys presently held in trust to the plaintiff, and I shall hear counsel as to any appropriate orders.