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…

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.

Continue reading Porker v Porker

Details

AGLC: Porker v Porker [2007] SASC 217
Case: [2007] SASC 217
Decision Date: 22 June 2007

CaseChat Overview and Summary

The case of Porker v Porker involves an application by a protected person seeking to rescind a protection order. The applicant, Mrs. Porker, challenged the continued validity of the protection order made in 2006, which was intended to safeguard her from undue influence and to assist her in managing her property and affairs. The application was heard by the Supreme Court of South Australia. The legal issues before the court encompassed whether the court had the jurisdiction to entertain the application under the applicable rules of court, whether any order to rescind the protection order should be backdated, and whether Mrs. Porker remained in need of protection given her current circumstances. Additionally, the court had to interpret and apply the provisions of the relevant statutory framework to determine the extent of Mrs. Porker's need for protection.

The court's reasoning focused on the evidence presented regarding Mrs. Porker's capacity to manage her affairs. Dr. Hecker's reports and oral testimony suggested that Mrs. Porker could manage her affairs with some assistance, though she noted that professional assistance was necessary. The court found that while Mrs. Porker did not suffer from dementia or any other organic mental disease, her age rendered her at least partially unable to manage her affairs without professional assistance. The court concluded that Mrs. Porker's need for protection persisted, as she remained vulnerable to undue influence, particularly regarding her property and financial dealings. The court also considered the implications of backdating any order to rescind the protection order, ultimately deciding against backdating to avoid potential legal complications and to maintain clarity in the administration of Mrs. Porker's affairs.

In summary, the court held that it had jurisdiction to hear the application and that the protection order should not be backdated. The court found that Mrs. Porker remained in need of protection due to her partial inability to manage her affairs and her susceptibility to undue influence. The application to rescind the protection order was dismissed, thereby maintaining the safeguards in place to protect Mrs. Porker's interests.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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