AM - [2017] WASAT 65 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AM [2017] WASAT 65

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 20 FEBRUARY 2017

DELIVERED : 1 MAY 2017

FILE NO/S: GAA 5613 of 2015

BETWEEN: AM
Represented Person

Catchwords:

Guardianship and administration - Administration - Directions to administrator - Capacity - Mental disability - Reasonable judgments - Declaration that person in need of administrator of his estate - Once declaration made represented person considered incapable of entering into contracts subject to certain exceptions - Exceptions include any contract for necessaries

Legislation:

Guardianship and Administrator Act 1990 (WA), s 4, s 17(A), s 31(4), s 64(1)(a), s 64(1)(b), s 65, s 70, s 71(4), s 72(2), s 74, s 77, s 84, s 86, s 90(1), s 97 (1)(b)(i), s 97(1)(b)(iii)

Result:

Public Trustee appointed as plenary administrator

Summary of Tribunal's decision:

AM was a 51yearold man who sustained an accident at his work in 1994. He settled a workers' compensation claim for $2.56 million in 2010.
On 10 March 2015, the Tribunal appointed the Public Trustee as the plenary administrator of AM's estate with certain directions. The order was made in the Tribunal's jurisdiction under the Guardianship and Administration Act 1990 (WA).
During the term of the administration order, the administrator applied for a review seeking to have the directions revoked.
In the course of the review proceeding, AM's former legal representative sought a direction from the Tribunal that the administrator be required to pay outstanding fees for legal services amounting to $10,920.25.
The administrator had refused to pay the legal fees because AM was alleged to have been incapable of entering into a contract for legal services once the administration order had been made and further there was insufficient information provided by the former legal representative to warrant a decision that the legal fees incurred were a contract for necessaries.
The former legal representative argued that the contract for legal services entered into by AM prior to the administration order, should continue because there had been a continuity of legal representation. Further the legal services provided after the making of the administration order were necessary given the difficulties faced by AM in his communications with the administrator.
The Tribunal decided to reappoint the Public Trustee as the plenary administrator of the estate of AM. The Tribunal did not include any directions in the order, having determined that the need to give AM as much independence as possible in the context of a protective administration order could be satisfied by the need for the administrator to form an opinion of his best interests, taking into account the factors contained in s 70 of the Act.
The Tribunal decided not to make the direction sought by the former legal representative.
The Tribunal did not accept that once the administration order was made, the former legal representatives could rely upon a contract for legal services entered into prior to the order, except in limited circumstances.
Section 77 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 AM

Details

AGLC: AM [2017] WASAT 65
Case: [2017] WASAT 65
Decision Date: 1 MAY 2017

CaseChat Overview and Summary

The matter before the court involved a dispute between the Guardianship and Administration Board and X Legal, regarding the provision of legal services to a represented person under an administration order. The Board, as the administrator of the estate, contested the necessity and reasonableness of the legal fees claimed by X Legal. The court was required to determine whether the legal services provided by X Legal were necessary and whether the fees claimed were reasonable.

The court examined the nature of the legal services provided by X Legal, specifically the drafting of a will for the represented person, AM. The court considered whether these services could be classified as 'necessaries' under section 77(3) of the Guardianship and Administration Act. The court also assessed whether the level of professional attendance and the fees claimed were necessary to advance AM's interests. The court acknowledged the difficulty in determining the nature of the advice provided by X Legal due to the alleged solicitor-client privilege.

The court found that the administrator had not been provided with sufficient information to assess the necessity and reasonableness of the legal fees. The administrator's attempts to obtain details of the advice provided and the costs agreement were refused by X Legal, citing solicitor-client privilege. The court emphasised that an administration order precludes the represented person from contracting for legal services, and it was not open to AM to do so. The court held that without the necessary information, the administrator could not discharge its obligations by having the invoices submitted for payment. The court also noted the administrator's concerns about the excessive professional time required to draft the will and the lack of justification provided by X Legal.

The court ordered that X Legal provide the necessary information to the administrator to enable it to assess the necessity and reasonableness of the fees claimed. The court did not determine the merits of the fees claimed but held that without the required information, the administrator could not discharge its obligations. The court also highlighted the importance of the administrator's role in ensuring that the represented person's interests are properly advanced and that the fees claimed are reasonable.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MR J

Another circumstance identified by the administrator in which a represented person under an administration order may be able to obtain legal services, is in the drafting of a will, provided it can be demonstrated that the person had testamentary capacity at the time the will was made (Re The Full Board of the Guardianship and Administration Board 2003 WASCA 268). The administrator submits that fees for the drafting of a will for a person under an administration order can be considered 'necessary' under s 77(3) of the GA Act, which provides for exceptions to the prohibition of a person under an administration order from entering into a contract. The administrator agrees that some assistance can be gained as to what constitutes 'necessaries' from the decision in Nash v Inman, however, submits that there is no indication that any of the attendances of X Legal with AM between those attendances that were involved in drafting the letters of 10 April 2015 and 15 December 2015 were 'necessary'. The administrator further submits that there is no indication that this level of professional attendance which resulted in fees of $8,720.25, necessarily advanced the interests of AM. The administrator disputes the view of X Legal as to the difficult communication with the administrator. The administrator states that X Legal, in its letter dated 10 April 2015, responded in a manner which could only be designed to perpetuate 'discord'. The administrator states that it took eight months for X Legal, on behalf of AM, to submit the AM budget in response to the proposed budget which was first set in March 2015. The administrator states that attempts to ascertain the nature of advice provided to AM by X Legal, so as to satisfy itself that the services were 'necessaries', have been refused. X Legal alleges that the solicitor/client privilege attached to this advice, which the administrator submits, is hard to comprehend in circumstances where the March 2015 order had been made, and there was at that stage no indication that AM was seeking to have the order revoked or varied. The administrator states that attempts made to ascertain whether a costs agreement had been signed by AM was also refused. The administrator was informed by X Legal that costs disclosure had been given to AM prior to the March 2015 order being made and a Letter of Engagement drawn. This letter also was not provided to the administrator. The administrator submits that X Legal has misconceived the effect of an administration order. It is not open to the AM to contract for legal services once the Tribunal has declared him incapable of managing his estate. Guardianship is not relevant to this consideration. The administrator states that given the refusal by X Legal to provide details of the advice it provided to AM, the administrator cannot discharge its obligations by having the invoices submitted to it for payment. In addition, X Legal has not provided justification as to why five hours of professional time was required to draft a will for AM.