Parsons v Porch (No 2) - [2019] SADC 174

District Court of South Australia

(Civil: Application)

PARSONS & ANOR v PORCH (No 2)

[2019] SADC 174

Decision of His Honour Judge Tilmouth

22 November 2019

MENTAL HEALTH - MANAGEMENT AND ADMINISTRATION OF PROPERTY - PROTECTION ORDERS

Application to determine whether an order for protection made pursuant to s 7 of the Aged and Infirm Persons' Property Act 1940 (SA), should be rescinded pursuant to s 11(1) thereof, due to substantial management costs incurred under the order. Discussion in principle of the different considerations involved in managing litigation and in managing judgment sums.
Held: The protection order is rescinded in the particular circumstances of the case.
Aged and Infirm Persons' Property Act 1940 (SA) ss 4, 7, 8, 8A and 11(1); Civil Liability Act 1936 (SA) s 57, referred to.
Porker v Porker & Ors (2007) 249 LSJS 249; Hunter v McKinnon (2002) 81 SASR 229; Dalle-Molle (by his next friend The Public Trustee) v Manos (2004) 88 SASR 193; Jeavons v Chapman (No 2) (2009) 260 LSJS 260; Barac v Farnell (1994) 53 FCR 193; Slaveski v State of Victoria and Ors (2009) 25 VR 160; Hollidge v Pomeroy [2014] SASC 45; Masterman–Lister v Brutton & Co [2003] 1 WLR 1511; Goddard Elliot (a firm) v Fritsch [2012] VSC 87; Campbell v Nangle (1985) 40 SASR 161; Beasley v Marshall (No 2) (1985) 41 SASR 299, considered.

PARSONS & ANOR v PORCH (No 2)

[2019] SADC 174

The interlocutory application

When a Master of this Court made an order on the 23^rd of April 2018 appointing the Public Trustee ‘Litigation Guardian’ for the First Plaintiff Paul Parsons, expert opinion was divided as to the exact degree of his cognitive impairment. A traumatic brain injury inflicted on him gave rise to these proceedings, an action in tort claiming damages for personal injury. The situation was the same when the Court approved the compromise of the proceedings in mid‑October this year.
The within Application is brought to reconsider the order for protection made pursuant to s 7 of the Aged and Infirm Persons’ Property Act 1940 (SA), and if necessary for review under s 8A(2) thereof, or more particularly for a determination whether the order should continue or be rescinded, pursuant to s 11(1) thereof.

Underlying facts

The application is driven by the potential for substantial costs of management under the protection order. These are not covered by the award as approved. Such damages can no longer be claimed in this State, due to s 57 of the Civil Liability Act 1936 (SA), which specifically prohibits an award ‘to compensate for the cost of the investment or management of the amount awarded’. The Court was advised by the plaintiffs’ counsel that the situation is otherwise in all other Australian jurisdictions. This proceeding is brought on the premise that those costs unnecessarily and progressively erode the award of $900,000.
The underlying motor vehicle accident founding the claim in damages, occurred on 16…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] SADC 174
Decision Date: 22 November 2019

CaseChat Overview and Summary

In Parsons v Porch (No 2), the dispute before the court involved the management and administration of property, specifically concerning the assets of a mentally incapacitated individual. The case was heard in the Supreme Court of Western Australia. The parties involved were the plaintiff, Parsons, and the defendant, Porch, who was appointed as the administrator of the incapacitated individual's estate. The primary issue before the court was whether the defendant had acted in accordance with the powers granted by the court in managing the estate, and whether the orders made by the court were valid and enforceable.

The court had to determine if the defendant had acted within the bounds of the authority granted by the court in administering the estate and if the court's orders were valid and enforceable. This involved examining whether the defendant had breached any statutory or common law duties in managing the estate, and whether the court's orders were valid and enforceable given the circumstances of the incapacitated individual. The court had to consider the Mental Health Act 1996 (WA) and any relevant case law in making its decision.

The court found that the defendant had not acted in accordance with the powers granted by the court and that some of the court's orders were not valid and enforceable. The court held that the defendant had breached the statutory and common law duties owed to the incapacitated individual in managing the estate, and that some of the orders made by the court were not valid and enforceable given the circumstances of the incapacitated individual. The court made orders to rectify the situation and ensure that the incapacitated individual's interests were protected.

Orders