Porker v Porker - [2007] SASC 217

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PORKER v PORKER & ORS
[2007] SASC 217
Reasons of Judge Burley a Master of the Supreme Court
22 June 2007
MENTAL HEALTH - MANAGEMENT AND ADMINISTRATION OF PROPERTY
Application by protected person to rescind protection order - whether jurisdiction to apply conferred by Rules of Court - whether order, if made, should be backdated - whether applicant still in need of protection - meaning and effect of provisions of Act.
Supreme Court Rules 1987 Rule 84.12; Aged & Infirm Persons Property Act 1940 s 7; s 11, referred to.
H v Nominal Defendant [1997] QSC 233 , considered.

PORKER v PORKER & ORS
[2007] SASC 217
Civil

JUDGE BURLEY. This is an application by a protected person, Hazel Agnes Porker (“Mrs Porker”), to set aside a protection order made in this Court on 25 January 2006 pursuant to the Aged and Infirm Persons Property Act 1940 (“the Act”).
The background to the application is as follows. The plaintiff is Mrs Porker’s son. He applied by summons dated 9 February 2005 for a protection order and other orders to be made in respect of Mrs Porker. At the time of the application Mrs Porker had been living with her daughter, Mary Barnes (“Mrs Barnes”) for a number of years. There were difficulties with the service of the proceedings at the known address of Mrs Porker and her daughter. Pre-paid post directed to that address was returned with the street number altered and the endorsement that the addressee was not at that address. Eventually substituted service was ordered on the 17 June 2005. By late July, Mrs Porker had retained a solicitor, Mr M Esau. In November 2005 Mrs Porker filed a responding affidavit. The plaintiff’s application proceeded to a hearing before Judge Withers on 16 January at the conclusion of which he reserved his decision. On 25 January his Honour made a protection order and published his reasons for so doing.
By notice of appeal dated 7 February 2006, Mrs Porker commenced an appeal in respect of the Court’s decision. That appeal was discontinued on 5 June 2006, a few days before it was due for hearing before the Full Court.
On 21 September 2006, Public Trustee, who had been appointed the manager of Mrs Porker’s property pursuant to the protection order, applied for directions as to the joining of Mrs Barnes and her husband, Grantley Barnes, as defendants in the proceedings. An order for their joinder was made without opposition from the plaintiff on 22 September 2006.
By application dated 12 December 2006 Mr and Mrs Barnes applied for the following orders:
1That this application be heard and determined by a Judge of his honourable Court.
2That, pursuant to Rules 3.04(f) and/or 84.12 of the Supreme Court Rules 1987, the order of 25 January 2006 made by his Honour Judge Withers in this action be set aside ab initio.
3In the alternative to paragraph 2 above, that, pursuant to sub.11(1) of the Aged and Infirm Persons Property Act 1940, the order of 25 January 2006 made by his Honour Judge Withers in this action be rescinded.
That application eventually came before a Judge of the Court on 9 February 2007 who ordered that the application be referred back to the Masters’ list.
On 9 May 2007 Mrs Porker made the application the subject of these reasons. The order sought is as follows:
1An order that the protection order pursuant to s 7 of the Aged and Infirm Persons Property Act 1940 made in respect of the 1^st defendant be discharged.
The application refers to reliance on s 22 of the Act which, among other things, enables applications to be made in the same proceedings after the making of the protection order.
On 16 March 2007, Judge Lunn appointed 21 May 2007 at 10.00 am as the commencement time for the hearing of both applications. His order provided in a general way for cross-examination of the deponents in respect of their affidavits. At the hearing Mr Homburg appeared for the plaintiff, Mr Haines QC for Mrs Porker and Mr Ower for the defendants, Mr and Mrs Barnes. Public Trustee did not wish to be heard on the application.
I was informed that reliance was to be placed upon the provisions of r 84.12 of the Supreme Court Rules 1987 and s 11(1) of the Act. I then expressed some doubt as to whether or not it was open to any of the then applicants to rely upon r 84.12. That rule enables judgments or orders of the Court to be set aside “if the justice of the case so requires”. I indicated that I would first ascertain from the parties what evidence they intended to adduce and, depending on the parties’ respective responses, the question of their ability to rely upon r 84.12 could be dealt with in final submissions.
I was then informed by Mr Haines that he intended to call only one witness for viva voce examination, namely Mrs Porker. He would otherwise rely upon affidavit and documentary evidence. Mr Homburg stated that the evidence to be led by him in opposition to the application would be confined to the affidavit evidence. Mr Ower was to call Dr Hecker, a gerontologist. I indicated that submissions as to reliance upon r 84.12 would be put during final addresses.
Towards the end of the hearing, after Dr Hecker had been called, Mr Ower announced that his clients did not intend to pursue their application, but would instead wish to be heard in support of Mrs Porker’s application. There was no objection by the plaintiff to this course being taken.
Having opened, Mr Haines called Mrs Porker to give evidence. She was then cross-examined by Mr Homburg in some detail. During the course of Mrs Porker’s evidence, Dr Hecker was interposed by Mr Ower.
I should mention that midway through the hearing, Mr Haines suggested that, to the extent that Mrs Porker placed reliance upon r 84.12, it might be necessary for all of the deponents to the various affidavits relied upon to be called. I indicated to him that, at the commencement of the hearing, I permitted the question of reliance upon r 84.12 to be deferred to the final addresses on the basis that only Mrs Porker and Dr Hecker were to be called to give evidence and that the rest of the evidence would be by way of affidavit without the necessity for the deponents to be called so that they might be cross-examined. I indicated to Mr Haines that it was then too late to change the course of the hearing and that, insofar as Mrs Porker’s application was concerned, he would be limited to calling Mrs Porker to give oral evidence.
In addition to the oral evidence given by Mrs Porker and Dr Hecker and the documentary evidence tendered during the course of the hearing, the following affidavit evidence was received: two affidavits of the plaintiff (FDN 2 and 46), two affidavits of Mr Homburg, the plaintiff’s solicitor (FDN 7 and 10), the affidavit of Coral Porker, the plaintiff’s wife (FDN 47), the affidavit of Ewan Porker, the plaintiff’s son (FDN 48), the affidavit of a solicitor, Mr Arthur Drikas (FDN 5), the affidavit of Stanley Kassebaum (FDN 3), the affidavit of Felicia Martin (FDN 11), the affidavit of Mark Witham, an officer of Public Trustee (FDN 45), four affidavits of Mrs Porker (FDN 16, 18, 19 and 44) and the two affidavits of Mrs Barnes (FDN 17 and 51).
I also interviewed Mrs Porker in Chambers privately pursuant to s 9 of the Act.
Rule 84.12 of the Supreme Court Rules 1987 and s 11(1) of the Act
I propose first of all to deal with the legal basis of Mrs Porker’s application. I have already set out the effect of r 84.12. Sub-section 11(1) of the Act is as follows:
11(1) The Court may rescind any protection order.
Sub-section 11(3) provides that the death of the protected person will determine the order but the Court may, for any special reason, direct that the protection order shall remain in force for up to two months after the death of the protected person.
To the extent that Mrs Porker has also placed reliance upon r 3.04(f) of the Supreme Court Rules 1987, my conclusions relating to the applicability of r 84.12 apply with equal force even though the two rules are not precisely the same. I mention the rule because it was referred to in the application originally pursued by Mr and Mrs Barnes but it was not the subject of argument during the hearing.
Mr Haines and Mr Ower have both stated that reliance upon r 84.12 was directed to establishing that the discretion exercised by Judge Withers to grant the protection order has miscarried. In addition, they both said that reliance upon s 11(1) of the Act was directed towards obtaining a rescission of the order because the present circumstances of the protected person were such that she was able to manage her affairs and was not subject to or liable to be subjected to, undue influence, whatever may have been the situation in the past. Both counsel said that if an order were made pursuant to r 84.12, it should be stated to operate from 25 January 2006, the date when the order was made by Judge Withers.
Even if it is assumed that Mrs Porker is entitled to rely upon r 84.12, and even if it is further assumed that a rescission order should be made, no convincing explanation as to why the order should be backdated (assuming it is possible to do so) was offered. It is apparent that if an order setting aside the protection order were backdated to 25 January 2006, a will which Mrs Porker purported to make after the protection order and contrary to the terms of the order, may in some way be validated. That it would be validated is by no means clear, and I see no point in creating potential confusion, and therefore a potential source of litigation, by backdating any order made pursuant to r 84.12.
The point is academic in any event because, in my opinion, Mrs Porker is not entitled to rely upon r 84.12 for a number of reasons. One of those reasons is tied up with the question of whether the order should be backdated. To the extent that Mrs Porker seeks an order setting aside the protection order ab initio, and assuming, without deciding, that there is power to backdate the order, for the reasons just given no such backdated order should be made.
There are many cases referred to at paragraph 84.12.1 of Civil Procedure relating to r 84.12, not all of which are easy to reconcile. There is a suggestion that in given circumstances recourse may be had to r 84.12 instead of an appeal. In Copping v ANZ (1997) 67 SASR 525 at 567-9, a case to which I will return, it was said that in rare and exceptional cases the rule may apply to a judgment regularly entered after a trial. It may also be used, as Mrs Porker contended, to set aside a final order which was obtained without a proper consideration of the merits of the case: Monte Paschi Australia Limited v Manno, an unreported judgment of the Full Court delivered on 15 July 1997, Judgment No S 6521. However, the principle that there should be finality in litigation is still applicable. The learned author of Civil Procedure states at paragraph 84.12.1:
Other than in exceptional circumstances Rule 84.12 is not to be used to allow parties to adduce further evidence where they did not put it forward on the original hearing, and the test for whether evidence should be allowed under rule 84.12 is the same as that on appeal [citations omitted]. ….. Ordinarily Rule 84.12 cannot be used to put further argument where there is an arguable error in challenging a sealed order: Glenmont Investments Pty Ltd v O’Loughlin (No 6) an unreported judgment of the Full Court delivered on 15 August 2001, Judgment No [2001] SASC 287.
Mr Homburg submitted that Mrs Porker was not entitled to rely upon r 84.12. He referred to the decision of the Full Court in Copping v ANZ McCaughan (supra). In that case, as well as an appeal, there was a notice of motion before the Full Court seeking orders pursuant to r 3.04(f) and r 84.12 of the Supreme Court Rules 1987. Lander J, with whom, on this point, the other members of the Court agreed, took the notice of motion as seeking “not a re-opening but a revocation, setting aside or variation of the [earlier] judgment … in order that the appellants may be allowed to argue the formerly abandoned ground of appeal” (at 564).
Having considered r 3.04(f) and r 84.12 his Honour said (at 569):
Although this Court does have jurisdiction to vary or revoke a sealed order of the Court it is a jurisdiction that would be exercised only sparingly. A fundamental principle of litigation requires that there be an end to litigation: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; State Raul Authority (New South Wales) v Codelfa Construction Pty Ltd (1982) 150 CLR 29. A judgment regularly entered after both parties have had full opportunity to present arguments on either side, could only be varied or revoked if the justice of the case compelled the variation or revocation of the order.
In my opinion, a forensic decision made by a party or the party’s advisers during the hearing of an appeal ought, except in exceptional circumstances, to be binding upon the party and therefore disentitle that party to any right to revoke, set aside or vary the judgment or order made upon that forensic decision.
That passage applies to and is determinative of Mrs Porker’s reliance upon r 84.12 in this case. There was a full hearing before Judge Withers where the plaintiff and Mrs Porker were each represented. After the decision, an appeal was pursued but later abandoned. In my opinion, there are no special or exceptional circumstances relating to the earlier hearing and decision which would justify reliance upon r 84.12 to re-visit the matters the subject of debate at the hearing before Judge Withers on 16 January 2006.
In light of that conclusion, the only remaining basis upon which Mrs Porker’s application may proceed is pursuant to s 11(1) of the Act. The sub-section on its face confers a broad discretion upon the Court, the only limitation being that the discretion must be exercised judicially, a requirement which arises from the cases dealing with other broad statutorily conferred discretions. Given the breadth of the discretion, it is not appropriate to attempt either to define or to list the circumstances under which the sub-section may be invoked. It is sufficient to say that the sub-section would include an application for rescission based on new evidence.
Whilst there are limitations, arising from the finality of litigation principle, on re-litigating by the introduction of new evidence what has already been decided, it must not be forgotten that the jurisdiction conferred upon the Court pursuant to the provisions of the Act is a statutory enhancement of the Court’s parens patriae jurisdiction. In other words, the Court has an overriding obligation towards persons who come within the provisions of the Act to ensure that such persons are afforded the protection of the Act. Equally, if they no longer need the protection of the Act, that protection should cease. These requirements transcend some of the principles of ordinary civil litigation and in particular, the practice that the parties have a degree of control in relation to the progress of the proceedings. The most obvious reflection of the overriding duty of the Court is that, in this case, the applicant is the protected person and yet, rescission of the earlier order is not automatically granted. The Court has an overriding duty to ensure that the protected person is no longer in need of the protection of the Act. That, in my opinion, is the principle which governs this application.
Before turning to the facts, it is necessary to refer to the central issues before me. Because Mrs Porker is confined to reliance upon s 11(1) of the Act, her application must be based on the contention that she did not come within s 7 of the Act and therefore the protection order should be brought to an end. Section 7 deals with two classes of persons who are afforded the protection of the Act. It is common ground that only sub-section (1) needed to be considered because sub-section (2), whatever view of the facts were taken, did not apply. Sub-section 7(1) is as follows:
7- Circumstances under which protection order may be made.
(1)Where it is made to appear to the satisfaction of the Court that any person is, by reason of age, disease, illness or physical or mental infirmity –
(a)unable wholly or partially to manage his affairs; or
(b)subject to, or liable to be subjected to, undue influence in respect of his estate, or the disposition thereof, or any part thereof; or
(c)otherwise in a position which in the opinion of the Court renders it necessary in the interests of that person or of those dependent upon him that his property should be protected as provided by this Act,
the Court may make a protection order in respect of the estate or part of the estate of that person.
No submissions were directed to paragraph (c). Argument centred upon whether or not, in light of all the evidence, including the additional evidence called at the hearing before me, it could be said that by reason of age, disease, illness or physical or mental infirmity:
(a) Mrs Porker was unable wholly or partially to manage her affairs; and
(b)whether or not she was subject to or liable to be subjected to undue influence in respect of her estate or any part thereof.
The additional evidence
The new evidence adduced on this application consisted of those affidavits which were filed after the making of the protection order in January 2006, namely those affidavits which have a file document number greater than 22. In addition, as I have said, Mrs Porker and Dr Hecker gave oral evidence and documents were tendered.
I shall refer first to the reports of Dr Hecker (Exhibit 2D5 and Exhibit 2D6) and her oral evidence. Dr Hecker had prepared two reports: one in 2000 (Exhibit 2D6) and one in 2007 (Exhibit 2D5). Dr Hecker said, in her second report, that she did not believe there had been any deterioration in Mrs Porker’s mental state since she was assessed in February 2000. She also said “I do not believe she has evidence of a dementing order or other organic disorder causing cognitive impairment”.
I agree with those conclusions.
Dr Hecker was asked whether Mrs Porker was unable wholly or partially to manage her own affairs. She was of the view that Mrs Porker could do so with some assistance and I think this is probably correct. However, it is to be noted that at pages 2 and 3 of her report she set out what assets were disclosed to her by Mrs Porker. These included the house at Murray Bridge (presumably the one at Janice Street), which had been transferred to Mrs Barnes in March 2000. There is also reference to an ANZ Bank account with a balance of approximately $7,000.00. Dr Hecker assumed that the information given to her by Mrs Porker was correct and on that assumption she thought that Mrs Porker was able to look after her financial affairs so long as she had “appropriate professional assistance”.
Dr Hecker was also asked to cover in her report the question of whether or not Mrs Porker “would be subjected to or liable to be subjected to undue influence”. She said: “I believe it is unlikely with the appropriate advice that she would be the subject of undue influence”.
I have found Dr Hecker’s evidence to be helpful, but it must be viewed in the context that the information that she obtained regarding Mrs Porker’s assets was incorrect and it is apparent from the evidence she gave at the hearing that she did not question Mrs Porker in any detail about her dealings with her daughter, Mrs Barnes.

My findings based on Dr Hecker’s evidence are that Mrs Porker does not suffer from dementia or have any other organic mental disease. She is able partially to manage her affairs but she needs professional assistance. I say “partially” because of the repeated stipulation by Dr Hecker that professional assistance was required. This means that Mrs Porker is at least partially unable to manage her affairs. Such a finding is also supported by the other additional evidence adduced at the hearing. I shall deal with that evidence shortly. I find that the partial inability arises from Mrs Porker’s age. I will set out later in these reasons why I have come to that conclusion.
The additional affidavit evidence available to me deals with a number of topics which relate, for the most part, to the dealings between Mrs Porker and the plaintiff relating to a share-farming agreement, an attempt to lease the farming property rather than continue with share-farming, the circumstances under which Mrs Porker lives with her daughter, including the ability of friends and relations to see Mrs Porker at Mrs Barnes’ home and the attempts by Public Trustee to take over the management of Mrs Porkers’ affairs. A lot of it is controversial in the sense that Mrs Barnes denies some allegations made in relation to her. These are factual conflicts which cannot be resolved on this application. However, the oral evidence of Mrs Porker, in particular the evidence given by her during cross-examination, is particularly significant because it casts a great deal of light on the question of Mrs Porker’s ability to manage her affairs. Taken as a whole, her evidence does not support her case for a rescission order. On the contrary, it reinforces the plaintiff’s contention that there is a need for the protection order to remain. I do not intend to traverse, piece by piece, the evidence given by Mrs Porker in cross-examination. It is sufficient to say (and to find) that her evidence reveals an inability to keep track of her assets, in particular her bank accounts, and her income and liabilities, particularly when relating to the share-farming agreement.
Some cases and the meaning of s 7(1)(b) of the Act
I accept that the cases relating to whether or not a protection order should be made are equally applicable to an application where rescission of a protection order is sought.
During the course of submissions, reference was made to the decision of Lee J in H v Nominal Defendant, an unreported decision of the Queensland Supreme Court, Judgment No [1997] QSC 233 where his Honour said:
….. the making of a protection order has very serious consequences to the person concerned and such an order will not be made lightly.
Lee J then referred to the decision of Wilson J in Re M (1965) NZLR 286 at 387 where his Honour expressed the need for similar caution in relation to the making of the order, during the course of which he said:
Thus prodigality, improvidence, business incompetence, facility of will or excessive generosity, unless due to age, disease, illness or physical or mental infirmity ….. can never give jurisdiction to make a protection order under this Act. The welfare state still permits a man to waste or give away his substance unless one or other of those conditions is fulfilled.
Those opinions must be read in light of the protection given in s 7 to those who by reason of age, disease, illness, etc are subject to or liable to be subjected to undue influence. In other words, although people may be permitted to waste or give away their substance, if the relevant disposition is or likely to be tainted by undue influence, protection is afforded by the Act.
During the course of counsels’ submissions, the wording of sub-paragraph 7(1)(b) of that Act, in particular the passage “or liable to be subjected to, undue influence”, was the subject of debate. In my opinion, the meaning of the expression “liable to be subjected to” is that there is a risk, the degree of which is closer to a probability than a possibility, that in the future the protected person will be subjected to undue influence.
Additional factual findings
Many of the findings made by Judge Withers on the basis of the evidence put before him in January 2006 are uncontentious and are not subject to modification in light of the further evidence which was adduced before me. Paragraphs 2 - 10 and paragraph 12 of his Honour’s reasons come within this category. They are as follows.
2The summons was supported by an affidavit of the plaintiff, again filed on 9 February 2005. The plaintiff is 54 years of age. His mother is 80 years of age. His mother resides with Mary Barnes, who is the 45-year-old sister of the plaintiff. I will hereafter refer to her as Mary. No disrespect is intended. The plaintiff’s father died in July 1981 and in addition to other bequests left a life interest in the farming property known as Marama to the defendant with the residual interest equally to his six children, one of whom has since died. The plaintiff’s father spent the latter years of his life in hospital suffering from Schizophrenia. The Marama property has been share farmed since 1971 by the plaintiff. Between 1980 and 1996 he share farmed the property with his brother, Brenton and the defendant. Since 1996 he has share farmed the property with his son and the defendant.
[The findings relating to the Marama property are incomplete because no reference has been made to the fact that part of the deceased’s farming property was, at the time of his death, held jointly with Mrs Porker and so passed to her by survivorship. The omission does not affect the sufficiency of Judge Withers' findings].
3In 1999 the plaintiff was concerned that his sister Mary and her husband Grantley were unduly influencing the defendant and arranged for an application to be made to the Guardianship Board. This led to an assessment of the defendant by Dr Jane Hecker, a well-known gerontologist. She found that the plaintiff’s mother did have legal capacity. However Dr Hecker in her report commented that the defendant suffered “intellectual and educational limitations” and was “vulnerable to influence”. She thought the plaintiff could make decisions about her financial affairs provided that she had independent advice and assistance from a financial consultant. The defendant told Dr Hecker that she cooked and kept house for her daughter who worked in Murray Bridge. The defendant relayed to Dr Hacker that she wanted to borrow $220,000 to help refinance Mary’s property at Bordertown. The guardianship application was pursued. It appears that a property at 30 Janice Street, Murray Bridge which had formed part of the estate of the plaintiff’s father and which had been left to the3 defendant in his will was in March 2000 transferred by the defendant to Mary for no consideration. That property was subsequently mortgaged by her to the National Australia Bank.
4The plaintiff describes efforts to contact his mother when she was living with Mary and her husband at Seaton. He says that he experienced extreme difficulty in gaining entry or in making contact with her. Various other instances of difficulty of contact are raised in his affidavit.
5On February 2003 the defendant executed a Power of Attorney and Power of Guardianship to Mary and Grantley.
6On 1 November 2004 a letter was forwarded from the solicitors for the plaintiff to Mary and her husband raising a host of issues in relation to the defendant and seeking some accounting from them as the defendant’s attorneys in relation to their management of the defendant’s property. No response was received to that letter and in her affidavit filed in this matter Mary Barnes says that she did not believe it was necessary for her to respond notwithstanding that she held a Power of Attorney for her mother. The plaintiff finally notes in his affidavit that two of the remaining five children of the defendant suffer from schizophrenia and reside in homes for the handicapped. He believes that his sister Delma has had little contact with his Mother.
7An affidavit of Mr Kassebaum was filed on 9 February 2005. His wife was a sibling of the defendant’s deceased husband. He has known the defendant for 56 years. Mr Kassebaum described difficulties that he experienced when he attended in September 2003 at the Seaton property at which the defendant lived with Mary in getting access to the home to speak with the defendant. He could get no answer at the door. He describes having to walk down a side path of the property to speak directly to the defendant through a window. While he was speaking to her Mary came into the room. This then led to the door being opened and Mr Kassebaum being able to speak with the defendant. A month later when he tried to visit the defendant again the path which he had walked down on the previous occasion was now barricaded. He was unable to gain access. In December 2003 he visited the defendant. There was a conversation. As part of that conversation he attests that Mary said words to the effect, “I have got Power of Attorney and I can do what I like with mother’s money”.
8There was some difficulty in serving the summons and it was necessary for it to be renewed. An affidavit of Mr Drikas filed on 6 May 2005 sets out the efforts he made to serve the summons which were unsuccessful. An order was made for substituted service. The application for that order was supported by an affidavit of Mr Homburg, who noted that Mary Barnes was in receipt of legal advice but that her lawyer had informed him that he was unable to obtain instructions to accept service of proceedings.
9Orders were made for service of the proceedings by way of postal service. An affidavit of Mr Homburg filed on 20 July 2005 proved service in accordance with the order for substituted service. The documents sent by post to the defendant and to Mary were on each occasion returned by Australia Post from the address to which they had been sent at 7 Jennifer Street, Season, marked “Not at this address”. When the defendant and Mary Barnes subsequently filed affidavits in these proceedings the address given as their residence was 7 Jennifer Street, Seaton, the address to which the documents had been sent and from which they had been returned. There is also the address at which the plaintiff and Mr Kassebaum experienced difficulty in accessing the defendant.
10The plaintiff has retained possession of the duplicate certificate of title for the Marama property. Under the share farming agreement that he has with his mother it has been agreed that she would not charge the property to seek to dispose of her interest in it. He had refused to accede to earlier requests from solicitors said to represent his mother to hand over the duplicate certificate. The plaintiff became aware in July 2005 of an advertisement placed in a newspaper giving notice that an application was to be made for a duplicate certificate of title to be issued because the original duplicate certificate of title was lost. This followed an incident when the plaintiff became aware of an advertisement in the “Stock Journal” of 14 April 2005 inviting tenders to lease land at Marama which was the land the subject of the share farming agreement. Enquiries made by the plaintiff’s solicitor revealed that the advertisement had been authorised by Mary Barnes – see the affidavits of Peter John Homburg filed 8 June 2005 and 20July 2005. These were matters of great concern to the plaintiff. When the defendant appeared by her solicitor on 3 August 2005 she gave an undertaking to the Court not to deal with the farm property or take money from her bank accounts or use assets in any way other than for suitable living expenses, medical expenses and legal costs. That undertaking was acceptable to the plaintiff.
…..
12 On 5 August 2005 a Notice of Address for Service was filed on behalf of the defendant. On 16 November 2005 an affidavit was filed by the defendant. That affidavit did not indicate the address of the defendant in the usual manner. In any event, the defendant responded to the various assertions that had been put. Much of the affidavit indicated that the defendant was not astute in looking after her own financial affairs or fully familiar with them. Paragraph 22 reads as follows:
22I agree that on 23 March 2000 I transferred the house at Janice Street to Mary. I did that because Mary and Grantley did not have enough security for their farming property and I wanted to help them. My intention was to let Mary and Grantley use the Janice Street property as security. We did not discuss what would happen when they no longer needed it as security. It was not my intention that I would give Mary the Janice Street property. However I did not turn my mind to when the property would come back to me.
23The house at Janice Street is still in Mary’s name but I believe that she is holding it on my behalf.
I respectfully adopt the above analysis and findings.
Mrs Porker repeated the assertions in paragraph 22 above in her affidavit sworn on 21 December 2005 (FDN 19). However, in her affidavit sworn on 12 April 2007 (FDN 44) she said, at paragraph 15:
On 23 March 2000 I transferred the Janice Street property into Mary’s name. Mary and Grantley could not use their own farming property as a security because they did not have enough equity in it. I agreed to transfer the Janice Street property into Mary’s name because I wanted to help Mary and Grantley. I freely and voluntarily gave the Janice Street property to Mary and Grantley to keep for looking after me.
I also set out below the further findings of fact (which I adopt because they are still apt) made by Judge Withers in paragraphs 13 - 18 of his reasons.
13In responding to the affidavit of Mr Kassebaum the defendant did not recall many of the matters therein. She did deny saying in respect of the sale of the house at Janice Street, Murray Bridge, “Yes I had to sign it away under pressure”. She denied that she had been pressured by Mary or Grantley into signing the Murray Bridge property over to them. The defendant indicated that she did not wish Public Trustee to be appointed to manage her affairs or to supervise the making by her of any will.
14An affidavit was filed by Mary Ruth Barnes on 23 December 2005 responding to the plaintiff’s affidavit sworn 2 February 2005. In essence she denied influencing the defendant or acting in any improper fashion. As to the transfer of the Murray Bridge property she said as follows:
20.In early 2000 Grantly [sic] and I were in financial difficulty.
21.Hazel [the defendant] agreed to help us by offering her house at 30 Janice Street, Murray Bridge as security so that we could refinance our own house.
22.She did that because there was not enough equity in our house.
23.I did not discuss with Hazel any formal arrangement regarding the transfer of the Janice Street property to me.
24.I acknowledge that the house was not intended to be a gift. My intention was always to transfer it back to Hazel when it was no longer needed as security.
15No explanation was provided about the advertisement in the “Stock Journal” or the initiation of an attempt to obtain a duplicate certificate of title for Marama.
16Mrs Barnes also related that shortly after her mother moved in with her she reached an agreement with her as to what she would pay Ms Barnes and Grantley for looking after her and providing meals and accommodation. That agreement is exhibited in handwriting as MRB2 and reads as follows:
Carers Agreement
42B Alma Terrace
Seaton
1 January 2000
I Hazel Agnes Porker of 42B Alma Terrace Seaton Agree to pay Carer’s wages to Mary Ruth Barnes & Grantley Watson Barnes of 42B Alma Terrace Seaton of $14-00 per hour 8 hours per Day 7 Days a weeks [sic] from the 1^st January 2000 onwards till Terminated to care for me. A price rise according to the CPI or any training as a carer can charge at any time. The amount per week a total of $784-00 and per year $37,632-00. This is excluding Rent for Room, Medical & personal expenses Social & living expenses.
Yours Sincerely
[signed] H A Porker
17The writing of the agreement does not appear to be that of Mrs Porker. I note in passing that this Carer’s Agreement seems somewhat inconsistent with the information given by the defendant to Dr Hecker in February 2000, some one month after the agreement that she “cooks and keeps house for her daughter who works in Murray Bridge” – see report of Dr Hecker (Document 2g). No mention of the agreement was made to Dr Hecker. I also note from paragraphs 42 and 43 of Mary’s affidavit that Grantley works full-time as a truck driver and she works part-time as a cleaner. Mrs Barnes denies ever taking any steps to prevent the plaintiff or Mr Kassebaum from visiting the defendant. She asserts that the various warrants for sale and judgments which were noted on the title of the Murray Bridge property have been paid. She asserts that she and her husband own assets of approximately $800,000 in value with a total debt to the National Australia Bank of $600,000. She indicates her intention to seek the consent of the National Australia Bank to release the Janice Street, Murray Bridge property from its security and undertakes not to use it as security for any other borrowings. She undertakes when it is released to transfer it back to the defendant. In paragraph 51 of her affidavit Mrs Barnes says:
I believe that I have taken from Hazel’s accounts no more than Grantley and I were entitled to take under our agreement with Hazel that was made when she first started living with us.
That affidavit has an exhibit which appears to be a reconciliation in handwriting of a cheque account. No actual statements or accounts are exhibited.
18In a subsequent affidavit of the defendant filed on 23 December 2005, she confirmed that she had entered into the Carer’s Agreement freely and voluntarily. There is no suggestion that she received any independent advice before so doing. That affidavit was in the same terms as her affidavit filed on 16 November 2005, save that on this occasion she identified her residence as 7 Jennifer Street, Seaton, the address from which the Court documents sent by mail in attempted service had been returned marked “Not at this address”.
Undue influence
Judge Withers dealt with the question of whether or not Mrs Porker is subject to or liable to be subjected to undue influence at page 8, paragraph 25 of his reasons. The following conclusions and findings which I quote from his reasons apply with as much force today as they did when he formulated them in January 2006:
In submissions the plaintiff relied to a degree on the lack of information that the defendant was able to provide about her own financial circumstances in her affidavit filed on 16 November 2005. Some of this lack of recall could quite properly be attributed to the passage of time. However, there are several matters of particular importance. In paragraphs 20 and 21 the defendant asserts that she recalls allowing Mary to take $30,000 from her account but not when that occurred and she recalls that she intended the payment to be a loan not a gift. In her affidavit Mary says that there was no such gift. There was no documentation produced to in any way in evidence the loan or gift or payment. Similarly, the defendant transferred her house property at Janice Street, Murray Bridge to Mary so that she could use it as security for a loan for the farming property owned by her and Grantley. The defendant says that she wanted to help them. There was no discussion as to what would happen when they no longer needed the property for security if that situation were to occur. The defendant says that it was not her intention to give Mary the Janice Street property. [I have already referred to the fact that a later affidavit of Mrs Porker states to the contrary]. Again no documentation in any way evidenced any agreement between the defendant and Mary. Similarly, there is no evidence provided that the defendant had anything in the nature of independent advice in respect of either of those transactions. I note Mary denies the first transaction occurred. There were substantial events where documentation ought to have been put in place and indeed where in my view Mary ought not to have accepted the benefit of those transactions or transactions without insuring that documentation was in place to protect the defendant’s interests and that the defendant had been independently advised. In the defendant’s first affidavit no mention was made of the carer’s agreement which was exhibited to an affidavit subsequently filed by Mary. The defendant then subsequently filed a second affidavit in which she acknowledged the carer’s agreement and said that she had freely and voluntarily entered into same. Again, no evidence was put forward that the defendant in any way received independent advice for entering into that carer’s agreement. In neither affidavit of the defendant is there any mention or explanation of the advertisements in respected of the Marama property. The defendant does not appear to be significantly aware of her financial position, the state of her assets, and the apparent non payment or late payment of some debts incurred by her.

His Honour said further (at [31]):
In my view the evidence in this matter strongly supports a finding that the defendant is a person who by reason of age or mental infirmity is unable to manage her affairs and is at the very least liable to be subject to undue influence. The criteria for the application of s7 of the Aged and Infirm Persons Property Act are satisfied. Such a finding is available on the report of Dr Hecker alone. Events since her report add weight to that finding. The defendant lives with Mary and Grantley Barnes and has provided them with Powers of Attorney and Guardianship. The lack of response by the defendant and her attorneys to the correspondence from the solicitors for Mr Porker [the plaintiff] of 1 November 2004, the return of the Court documents served by post from the address at which it was subsequently acknowledged that both the defendant and Mrs Barnes resided, with those envelopes incorrectly marked by her or her attorneys ”Not at this address”, the difficulty experience by the plaintiff and Mr Kassebaum in being able to access her, the inordinate and unexplained delay by her and/or Mrs Barnes in responding to those proceedings and to the earlier expressions of concern, the apparent substantial use by Mr and Mrs Barnes of the assets of the defendant to meet their personal credit obligations without the defendant prudently recording any agreement between her and them, her lack of knowledge of her own financial affairs, the lack of explanation of the advertisements in relation to the Marama property, and the entry by the defendant into the carer’s agreement in circumstances where it appears that such an agreement may well be inappropriate and against her interests are all powerful indicators for the Court to exercise its discretion for an order under s 7 of the Act.
With the exception that I have not made a finding in relation to mental infirmity, I respectfully adopt what his Honour has said.
Section 7 of the Act
I have already said that the same issues arise on an application to rescind a protection order as those which arise on an application to make such an order, at least to the extent that the elements of s 7 of the Act need to be considered. It is appropriate, in further explanation of my findings and conclusions set out above, to set out my views as to the operation of s 7 of the Act. The elements are that the protected person is:
- by reason of age, disease, illness, etc
- unable to manage wholly or partially his/her affairs
- or is subject to, or liable to be subjected to, undue influence.
As to the first element, argument was addressed to both age and mental infirmity. Mr Haines submitted that, on Dr Hecker’s evidence and that of Mrs Porker, there was no organic mental infirmity. Given my findings in relation to Dr Hecker’s evidence, he is correct, but the matter does not end there. The various categories in the first element – age, illness, etc, are disjunctively referred to. Therefore, each one must be considered both separately and in combination. The issue then becomes: is Mrs Porker, by reason of age, etc either unable to manage or subject to or liable to be subjected to, undue influence? Mr Haines submitted that Mrs Porker could manage. I do not accept that submission. As I have set out earlier, on Dr Hecker’s evidence alone she is only partially able to manage. If age (or one or more of the components of the first element) is the cause of that inability, that is sufficient to confer the jurisdiction. Then the question arises: is it appropriate to make an order, or, as in this case, is it appropriate to rescind the order? The same approach applies if Mrs Porker is, or is liable to be subjected to, undue influence and age (or one or more of the components of the first element) is the cause of that state.
In my opinion, Mrs Porker’s age is the primary cause of her partial inability to manage her affairs. This finding is amply justified by Dr Hecker’s evidence and by my observations of Mrs Porker in the witness box and during the interview in my Chambers. She was once able to look after her affairs. This is evident from the fact, which I infer, that she did so successfully for many years after her husband’s illness and his subsequent death in July 1981. She no longer has the ability to keep track of her assets and liabilities. Her age has clearly impinged upon her ability adequately to deal with her affairs. Consequently, there is a need for the continued protection of the Act.
There is the additional ground for refusing the application which needs to be considered. It relates to the question of whether or not Mrs Porker is “liable to be subjected to undue influence”. Mrs Porker is an elderly woman who, over a number of years, has not been in good health. She is dependent on her daughter in the manner found to exist in Bridgewater v Leahy (1998) 194 CLR 457 at 491. She knows she needs to be looked after. She wants her daughter Mary to do so. Given that strong sense of purpose in Mrs Porker which Dr Hecker has referred to, she is likely to go to great lengths to ensure that she is looked after by her daughter. She is adamant that she does not want to be placed in a nursing home. She is aware that a nursing home is the only practical alternative if her daughter does not look after her.
It must immediately be said that there has been no suggestion that Mrs Barnes will not look after her mother if the protection order is not rescinded. Nevertheless, Mrs Porker is very concerned about her situation. That degree of concern sets the measure of her vulnerability. The Act is designed to protect vulnerable persons. Her partial inability to manage her affairs by reason of her age increases that vulnerability.
However, age causing vulnerability is not enough to satisfy the requirement in s 7 relating to whether or not she is subject to or is liable to be subjected to, undue influence. If that element is to be relied upon, the evidence must support a finding either that she is subject to undue influence of that she is liable to be. The evidence does not support the former but it does the latter.
Two uncontested pieces of evidence demonstrate undue influence in the past: the transfer of the Murray Bridge house and the carer’s agreement. Both those transactions were clearly against Mrs Porker’s interests. Any disinterested objective person would form that view. She was not offered, nor did she obtain, independent advice about them. The transactions would be set aside in equity. Other findings I have made on this application by adopting what was said by Judge Withers in his reasons amply justify the conclusion that Mrs Porker is likely to be subject to undue influence in the future if only because Mrs Barnes, in the past, appears to have had little if any insight into the need to take account of and allow for her mother’s vulnerability. Nothing before me suggests that that situation has changed or will change.
For these reasons, the application to rescind the protection order will be dismissed.
Finally, it is necessary to say something about the implementation of the protection order to date. There has been a distinct lack of co-operation with Public Trustee and her officers in relation to the handing over of information and documentation relating to Mrs Porker’s estate, including bank statements, cheque books, money deposits with Elders, correspondence, accounts, tax documentation and any other documentation relating to Mrs Porker’s assets and liabilities. I intend to give a detailed direction to the plaintiff, Mrs Porker and the other defendants to provide such documentation and information forthwith. The plaintiff’s solicitors should bring in minutes to that effect. There will be liberty to speak to the minutes, which should be circulated amongst the parties prior to the next hearing. I will also hear the parties as to costs.