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- Unreported Judgment
White v White QDC 321
DISTRICT COURT OF QUEENSLAND
White v White  QDC 321
NICOLE MAREE WHITE by her Litigation Guardian, THE PUBLIC TRUSTEE OF QUEENSLAND under Part 4 Succession Act 1981 (Qld)
ADAM STEVEN WHITE as Executor of the Will of Janice Marie White, Deceased
District Court at Brisbane
16 December 2021
16 December 2021
Porter QC DCJ
Guardianship and Administration Act 2000 (Qld), s. 11, Schedule 1
Public Trustee Act 1978 (Qld), s. 59
Succession Act 1981 (Qld), s. 41
Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams  QCA 286
Watts v The Public Trustee of Queensland  QSC 410
I. Klevansky for the Applicant
The Official Solicitor to The Public Trustee for the Applicant
- This is an application for the Court, pursuant to s. 59 Public Trustee Act 1978 (Qld), to sanction a settlement reached by the Public Trustee, on behalf of the applicant, of her family provision application (FPA) and for final orders of this Court giving effect to that settlement.
- For the purposes of making orders on Ms Whites’ FPA, the appropriate approach for a Court to take in relation to an application to sanction a compromise of the proceedings was set out in Watts v The Public Trustee of Queensland  QSC 410, approved by the Court of Appeal in Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams  QCA 286:
“ In the second case Hadley v McNamara re the Estate of Mary Anne McNamara (unreported, NSWSC, 7 December 2005) Young J pointed to the change wrought by the decision of the High Court, he said:-
‘In former times the court used to look at these applications as if they were discretionary matters and seek to work out whether the court had jurisdiction. It is now clear that that is the wrong approach under the Family Provision Act and that if the parties agree to settle proceedings under the Family Provision Act, and there is no other interest involved, ordinarily the court should merely make the orders in accordance with the terms of settlement. There will, of course, be the odd exception where it clearly appears on the face of it that there is no jurisdiction in the sense that the plaintiff has no need of provision.’
 The point was further considered by the Supreme Court in Western Australia in Schaechtele v Schaechtele ( WASC 148) where Le Miere J considered (at para 18):-
‘This Court cannot make an order giving effect to the proposed settlement unless the Court thinks that such provision should be made out of the estate of the deceased for the proper maintenance or support of the plaintiff. But that does not mean that the Court is in effect to hear the matter as if it were a contested application and then to give or withhold orders to give effect to the settlement by comparing the settlement with the judgment which the Court would have given. The Court must give proper consideration to the evidence before it. The Court should be aware of the risks of litigation in an area in which reasonable people can reasonably reach different conclusions and give [proper] weight to the fact that the parties wish to effect the settlement. If the Court is satisfied that the settlement falls within the bounds of a reasonable exercise of discretion then the Court should make orders to give effect to that settlement.’
I respectfully agree with this approach to the question” (emphasis added).
- It is with some irony that I refer to Abrahams, as that case involved the Court of Appeal overturning a Judge’s decision to refuse to sanction a settlement favourable to a person under a disability, because the learned Trial Judge considered that a 46 year old man with Down Syndrome and significant medical problems could not demonstrate need for provision of some $140,000 in circumstances of significant personal poverty and inability to earn a living. That person had ultimately secured supported accommodation but had significant unmet need.
- Here the boot is on the other foot. From the perspective of s. 41 Succession Act 1981 (Qld), I have concerns that this settlement is not within the bounds of a reasonable exercise of discretion in light of the strength of the need of the applicant, the size of the estate to meet those needs and the lack of any evidence of need in the competing beneficiary, her brother.
- Nothing I say is intended in any way to criticise the position of the brother, whose prompt cooperation in this matter is self-evident. However, with respect to his own good intentions and good will towards his sister, the law casts the duty on me to decide these matters.
- My specific concerns are these.
- First, as to accommodation, what if any prospect is there that Ms White’s accommodation arrangements will materially alter over the course of her life? Any change in the quality or availability will significantly impact on her. Depending on the risk of such a change, it seems to me to be the kind of matter which is the kind of contingency which would inform adequate provision for Ms White in an estate of 900,000.
- Second, as to her intellectual disability, I am effectively asked to assume that it will remain stable for the balance of her life and not significantly deteriorate. While I take judicial notice that that is a common feature of conditions manifesting themselves in intellectual disability, that is presently just an assumption.
- Third, with respect to the Occupational Therapist’s report, it seems to take a modest view of what resources might appropriately be deployed to facilitate Ms White attaining her best quality of life, something which I consider should be an objective taken into consideration in an estate of this size and circumstances.
- I give just these examples:
- (a)Ms White is very overweight. Such a condition is commonly associated with intellectual disability. Nothing is proposed to address this yet, but I assume that it would significantly improve her health and overall wellbeing;
- (b)Ms White has Silver hospital cover. What does more comprehensive cover allow for? Would it facilitate a private room if she was admitted to hospital? Would such a benefit materially assist her, if admitted to hospital, given her disability?
- (c)The replacement of Ms White’s personal furniture is allowed for, it seems, only one occasion, though I assume that the needs analysis is properly premised on the current needs.
- (d)Ms White expresses interest in mathematics and in improving her mathematics. Would this assist her intellectual development? If so, can provision be made for it?
- (e)Ms White enjoys learning. She has, it seems, aspirations to learn and has expressed interest in changing her employment, perhaps to become a barista. What funds would be required to facilitate that ambition?
- Fourth, her current NDIS program, just expired, is considerable: some $163,630. That puts her in a dramatically different position from Mr Abrahams. However, no submission is made to me as to the likely continued funding at that level, nor as to how substantial provision would affect it, or as to how I should take it into account. It is a very substantial consideration. Further, I note that Ms White has not received funding at that level before. Indeed, her funding for the previous year was some $53,000. That is some indication that recurrent funding at the higher level is far from certain.
- Fifth, the Public Trustee is appointed under the Guardianship and Administration Act 2000 (Qld) as Ms White’s administrator for financial matters. Schedule 1 to that Act identifies the General Principles, which s. 11 dictates must be applied by the Public Trustee in performing that function. Principles 4, 5, 6 and 7 might inform the identification of what comprises adequate provision in an estate of this kind.
- (a)Of particular relevance in this case is s. 7(1) and (2), which provides:
7 Maximum participation, minimal limitations and substituted judgment
- (1)An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account.
- (2)Also, the importance of preserving, to the greatest extent practicable, an adult’s right to make his or her own decisions must be taken into account.
- (b)There is no evidence before me which I find adequate from Ms White speaking for her own aspirations, needs and wishes, nor that the Public Trustee has taken steps to facilitate that expression. I am not suggesting it has not happened, just that there is no evidence of it. I do not accept that the formulaic statements in the NDIS Plan meet that requirement. They are inadmissible in any event and though no objection is taken, I place little weight on them.
- Sixth, there is no explanation of how the sum of $120,000 relates to the specific or general needs of Ms White identified in the material that would allow me to form any kind of approximate view as to whether it does or does not fall within the bounds of a reasonable exercise of discretion.
- Seventh, there is no evidence before me to sustain the conclusion that, regardless of these matters, the realpolitik of Ms White’s circumstances supports the conclusion that this settlement is in her best interests, because of factors relating to the character of the estate or the need to litigate as an alternative to accepting this settlement. For example, there is no evidence that she cannot afford to prosecute an FPA, nor that there is some significant extrinsic risk of costs or otherwise in her doing so. Indeed, all the indications are the opposite.
- Finally, I echo Mr Klevansky’s plaintive cry in Abrahams at paragraph , “But not even on a contingency basis?”. The effect of this will be that Ms White has some $300,000 in capital, but no chance ever of adding to it, and has up to 40 years ahead of her to draw on it. In all the circumstances, I am not satisfied that is sufficient on the current material.
- I am not suggesting that all the above matters are necessarily required to be addressed when a person with an intellectual disability settles an FPA by a litigation guardian. Mr Abrahams’ case is a classic case in point. In a small estate, everyone involved must act with reasonable proportionality.
- However, in the circumstances of an estate which, while reasonably modest by modern standards, is still significant, and in which the competing beneficiary chooses to show no need, I consider more is required to satisfy me that the settlement is in the best interest of Ms White and that it is within the bounds of a reasonable exercise of discretion.
- I propose to adjourn the application until 22 February 2022, when I will consider any further material.
- I am not by this judgment stating that everything in it must be fully addressed. This is a matter for judgment for counsel and the Public Trustee, all of whom are well-qualified to make informed judgments on the issue. Nor am I determining on the final basis that I would not make orders giving effect to the current settlement if further evidence justified that conclusion.
- Published Case Name:
White v White
- Shortened Case Name:
White v White
 QDC 321
Porter QC DCJ
16 Dec 2021