BJB and GB - [2008] WASAT 307

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: BJB and GB [2008] WASAT 307

MEMBER: MS F CHILD (MEMBER)

HEARD: 3 DECEMBER 2008

DELIVERED : 23 DECEMBER 2008

FILE NO/S: GAA 2359 of 2008

BETWEEN: BJB
Applicant
AND
GB
Donor
MG
VG
Donees

Catchwords:

Guardianship and administration - Application to intervene in an enduring power of attorney - Donor with diagnosis of dementia - Applicant son recently settled with the donees his claim against the donor's estate now seeking access to documents including those related to the legal costs of the donor incurred in respect of the applicant's claim - Applicant found not to have a proper interest - Application dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 40, s 107, s 109, s 109(1)(a), Pt 9

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Mr G Maddy
Donor:     Self-represented
Donees:     Self-represented

Solicitors:

Applicant:     Great Southern Legal Pty Ltd
Donor:     Self-represented
Donees:     Self-represented

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

One of the sons of an elderly woman with a diagnosis of dementia applied to the Tribunal for orders intervening in an enduring power of attorney his mother had executed in 1999 by which she appointed one of her daughters, the sister of the applicant, and soninlaw her attorneys or donees.
The application was brought to the Tribunal following the settlement of a legal dispute in which the applicant had claimed an interest in the property of his mother. The donees had sought legal advice on the woman's behalf following a caveat being placed on her property by the applicant which prevented its sale. The applicant said that in opposing his claim on his mother's property, the donees had acted in their own interests rather than the interests of his mother the donor. He sought records of transactions kept by the donees, in particular details of the legal costs associated with the legal advice obtained in respect of the disputed claim about his mother's property, in an effort, he said, to reassure himself that his mother's interests were protected.
The Tribunal decided that although the legal dispute was now settled it was not appropriate that the applicant have access to the personal financial records of the donor, particularly those records associated with legal advice (or the costs of that advice) obtained on her behalf by her donees in relation to the dispute with the applicant.
The donees had on their appointment accepted statutory obligations to act with 'reasonable diligence to protect the interests of the donor'. On the facts of the case, as put to the Tribunal by both the applicant and the donees, the discharge of that duty must have included, at a minimum, obtaining legal advice on her behalf.
Nothing in the evidence put by the applicant supported his contention that the donees were in a conflict position when they sought legal advice regarding his claim on his mother's…

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 BJB and GB

Details

AGLC: BJB and GB [2008] WASAT 307
Case: [2008] WASAT 307
Decision Date: 23 DECEMBER 2008

CaseChat Overview and Summary

In the matter of BJB and GB, the applicant, a son of the donor of an enduring power of attorney, sought to intervene in proceedings related to the administration of his mother's estate. The dispute arose as the applicant, who had recently settled a claim against the donor's estate, sought access to documents pertaining to the legal costs incurred by the donor during the course of the applicant's litigation. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the applicant had a proper interest in the proceedings and, if so, whether he was entitled to intervene as a party. The court was required to determine if the applicant's interest in the documents related to the donor's legal costs was sufficient to warrant intervention in the administration of the estate.

The court found that the applicant did not have a proper interest in the proceedings as his claim against the donor's estate had been settled. The court held that the applicant's interest in the documents was not sufficient to constitute a proper interest in the administration of the estate. Consequently, the court dismissed the application for the applicant to intervene and access the documents.

Orders