BZ
[2020] WASAT 159
•21 DECEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BZ [2020] WASAT 159
MEMBER: JUDGE D R PARRY, DEPUTY PRESIDENT
DR E MARILLIER, MEMBER
MS M CONNOR, MEMBER
HEARD: 19 MAY 2020 AND 26 NOVEMBER 2020
DELIVERED : 21 DECEMBER 2020
FILE NO/S: GAA 1197 of 2020
THE PUBLIC ADVOCATE
Applicant
BZ
Represented Person
PUBLIC TRUSTEE
Third Party
Catchwords:
Administration - Review by Full Tribunal of determinations of single member to make administration orders appointing Public Advocate as limited administrator in respect of management of any claim of represented person against Public Trustee and appointing Public Trustee as plenary administrator save for functions vested in Public Advocate - Whether presumption of capacity is displaced - Whether need for appointment of administrator - Administrator of last resort - Whether Public Advocate should be appointed as limited administrator (of last resort) in relation to any claim of represented person against Commonwealth or Public Trustee
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 4(3)(d), s 13(b), s 17A(1), s 17A(2), s 17B(3)(b), s 41(3)(a), s 64(1), s 64(1)(a), s 68, s 68(5), s 84, s 86(1)(a), s 86(1)(aa)
Guardianship and Administration Act 1993 (SA), s 28, s 49
Migration Act 1958 (Cth)
Result:
Limited administration order made appointing Public Advocate as limited administrator of represented person's estate to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to any claim of represented person against Commonwealth of Australia or Public Trustee
Limited administration order made appointing Public Trustee as limited administrator of represented person's estate to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to represented person's medical negligence claim arising from medical treatment
Category: B
Representation:
Counsel:
| Applicant | : | Mr D Desaubin (Principal Investigator Advocate) |
| Represented Person | : | In Person |
| Third Party | : | Ms K Sobey |
Solicitors:
| Applicant | : | N/A |
| Represented Person | : | N/A |
| Third Party | : | N/A |
Case(s) referred to in decision(s):
BZ [2019] WASAT 14
LP [2020] WASAT 25; (2020) 99 SR (WA) 123
M [2008] WASAT 262
RJK [2019] WASAT 109
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve applications by the Public Advocate and by BZ (represented person) for a review by the Full Tribunal, under s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), of the determinations made by Member Felicity Child on 27 February 2020 to make administration orders, respectively, appointing the Public Advocate as limited administrator of the represented person's estate 'in respect of the management of any claim of the represented person against the Public Trustee, his employees, his agents or a solicitor engaged on his behalf'[1] and appointing the Public Trustee as plenary administrator of the represented person's estate 'with all the powers and duties of a plenary administrator save for the functions vested in the Public Advocate'.[2] On 27 February 2020, Member Child also ordered that '[t]he Public Trustee will meet all costs and disbursements of the Public Advocate incurred in the discharge of her functions as limited administrator of the estate of the represented person'.[3]
[1] Order 3 made on 27 February 2020 (Hearing Book (Exhibit 1) page 1).
[2] Order 2 made on 27 February 2020 (Exhibit 1 page 1).
[3] Order 4 made on 27 February 2020 (Exhibit 1 page 1).
On 25 March 2020, the Public Advocate applied for a review of the limited administration order appointing her as limited administrator of the represented person's estate, under s 86(1)(a) of the GA Act, on the grounds that she 'did not have effective notice of this hearing and was unable to put forward views, and it is clear we would have argued against this appointment'.[4] In light of the Public Advocate's position in relation to the limited administration order and as the s 86 application was filed within the 28 day period for an application under s 17A(2) of the GA Act for the Full Tribunal to review a determination of a single member under s 17A(1) of the GA Act, the Tribunal treated the Public Advocate's application as having been made under that provision.
[4] Exhibit 1 page 7.
The hearing of the proceedings commenced before the Full Tribunal on 19 May 2020. At that time, the represented person was living in South Australia and attended the hearing by telephone. However, because of COVID-19 restrictions, the interpreter in the represented person's original language, who the Tribunal had arranged to translate for him, and who also attended the hearing by telephone, was not in the same location as the represented person. After the Tribunal heard a brief opening statement from the Public Advocate and shortly after Mr Dylan Desaubin, who is a Principal Investigator Advocate employed by the Public Advocate, commenced making submissions on her behalf, the Full Tribunal formed the view that the hearing could not proceed fairly or productively with the represented person and the interpreter in different locations, because of the complexity of the submissions and the need for simultaneous translation of the proceedings for the represented person over the telephone line.
Furthermore, in a legal report to the Tribunal dated 12 May 2020, Ms Kim Sobey, who is a Senior Legal Officer employed by the Public Trustee, said that, because the represented person had expressed an intention not to return to Western Australia, the Public Trustee had lodged an application in the South Australian Civil and Administrative Tribunal (SACAT) for the appointment of the Public Trustee of South Australia as the represented person's administrator under the Guardianship and Administration Act 1993 (SA) (SA GA Act). In written submissions dated 30 April 2020, Mr Desaubin referred to the Public Trustee's application to SACAT and asked rhetorically 'would it not be preferable for the SA Public [Trustee] to be appointed as plenary administrator for [the represented person], which would include (subject to orders in WA) looking at any potential claim against the Public Trustee in WA, the Commonwealth, or any medical negligence claim[?]'.[5] Mr Desaubin then said that '[t]he Public Advocate would submit that the order made [on] 27 February 2020, should be revoked, to enable SACAT to consider every implication and option in regard to an order being made in South Australia'.[6]
[5] Submissions dated 30 April 2020 [13] (Exhibit 1 page 104) (original emphasis).
[6] Submissions dated 30 April 2020 [14] (Exhibit 1 page 104).
The Tribunal adjourned the hearing on 19 May 2020 to 25 June 2020 'to enable [the represented person] to attend by video link with an interpreter in the … language present with him, ideally at the South Australian Civil and Administrative Tribunal …'.[7]
[7] Order 1 made on 19 May 2020 (Supplementary Hearing Book (Exhibit 2) page 6).
However, before the hearing was adjourned, the represented person, in effect, made an oral application (in English), under s 17A(1) of the GA Act, for a review by the Full Tribunal of the determination of Member Child on 27 February 2020 to make the plenary administration order appointing the Public Trustee as the plenary administrator of his estate (save for the functions vested in the Public Advocate). The represented person said 'I need to remove the [P]ublic [T]rust[ee][,] because I know how to do the money save, how to spend, how not to spend the money …'.[8] The Full Tribunal dispensed with notice of the hearing to the Public Trustee in respect of the oral application made by the represented person, under s 17B(3)(b) of the GA Act, due to exceptional circumstances, and extended the time for the commencement of that application, under s 17A(2) of the GA Act, as there was good reason for making the request out of time, because the represented person did not attend the hearing on 27 February 2020 (in person or by telephone).
[8] ts 7, 19 May 2020.
As SACAT had not yet determined the Public Trustee's application for the making of an administration order in South Australia and as Mr Desaubin advised the Tribunal on 16 June 2020 that the Public Advocate had approached solicitors Maurice Blackburn Lawyers (Maurice Blackburn) after the hearing on 19 May 2020 'to determine if they would provide … advice as to any potential claim [of the represented person] against the Public Trustee', but had received no response and was advised on 15 June 2020 that the relevant solicitor was on leave until 22 June 2020, the further hearing date of 25 June 2020 was adjourned initially on 17 June 2020 to 20 August 2020, then on 3 August 2020 to 25 September 2020, and ultimately on 20 August 2020 to 26 November 2020, on each occasion in order to:[9]
(a)await the determination of the South Australian Civil and Administrative Tribunal in relation to the application for an administration order in respect of [the represented person]; and
(b)to enable the Public Advocate to obtain legal advice referred to in the email to the Tribunal on 16 June 2020.
[9] Order 1 made on 17 June 2020, order 2 made on 3 August 2020 and order 2 made on 20 August 2020 (Exhibit 2 pages 3, 4 and 5).
The Public Advocate also made an application in SACAT for the appointment of the Public Advocate of South Australia as either limited or full guardian of the represented person under the SA GA Act. Both the Public Trustee's and the Public Advocate's applications for the appointment of the equivalent office holders in South Australia as administrator and guardian, respectively, for the represented person, were listed for hearing before SACAT on 11 June 2020. The SACAT member conducting the hearing formed the view that it was appropriate to direct the Public Advocate of South Australia to investigate the affairs of the represented person, under s 28 of the SA GA Act, and to provide a report to SACAT by 23 July 2020 in relation to whether the represented person has 'a mental incapacity that impacts on his decision-making and ability to manage his own affairs and if so the extent of that incapacity with reference to financial, health[,] lifestyle and other decision[]making', whether there is 'a need for either a [g]uardianship or an [a]dministration [o]rder at the present time and if so the extent of the orders required', and whether an interpreter should be arranged for the represented person for the next hearing.[10] However, on 4 September 2020, the Public Trustee and the Public Advocate sought to withdraw their applications to SACAT for, respectively, administration and guardianship orders, under s 49 of the SA GA Act, as the represented person had returned to reside in Western Australia. On 4 September 2020, SACAT ordered that 'the proceedings … be dismissed'.[11] By that date, the previously listed further hearing date before the Full Tribunal of 25 September 2020 had been vacated and these proceedings had been listed for further hearing before the Full Tribunal on 26 November 2020.
[10] Exhibit 2 page 47.
[11] Exhibit 2 page 44.
The hearing before the Full Tribunal proceeded on 26 November 2020. Following the hearing, the Full Tribunal made the following declaration and orders:
The Tribunal declares that the represented person … is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to part of his estate; and
(b)in need of an administrator of part of his estate.
The Tribunal orders:
1.The administration orders dated 27 February 2020 are revoked and substituted with orders in the following terms.
2.The Public Trustee of 553 Hay Street, Perth WA is appointed limited administrator of the estate of the represented person with the following functions:
(a)to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to the represented person's personal injuries claim arising from medical treatment received by the represented person in or about 2012 in an appropriate jurisdiction in the name of the represented person; and
(b)to obtain financial, medical and other information and documentation relevant to the functions in this order regarding the represented person from any person or entity including, but not limited to, financial institutions (including banks), Centrelink, the Australian Taxation Office, Medicare, the National Disability Insurance Scheme, medical professionals and entities (including hospitals) and health professionals and entities.
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth WA is appointed limited administrator of the estate of the represented person with the following functions:
(a)to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to any claim of the represented person against the Commonwealth of Australia, or the Public Trustee, his employees, agents or any solicitor engaged on his behalf; and
(b)to obtain financial, medical and other information and documentation relevant to the functions in this order regarding the represented person from any person or entity including, but not limited to, financial institutions (including banks), Centrelink, the Australian Taxation Office, Medicare, the National Disability Insurance Scheme, medical professionals and entities (including hospitals) and health professionals and entities.
4.The Public Trustee will meet all costs and disbursements of the Public Advocate incurred in the discharge of her functions as limited administrator of the represented person.
5.The administration orders are to be reviewed by 13 December 2021.
We said that we would publish written reasons for our decision to make the declaration and orders set out immediately above. These are those reasons.
Background
The represented person was born overseas and is now 26 years of age. In 2012, when he was aged 17, the represented person was an asylum seeker passenger on a boat which capsized near Christmas Island. A number of people died. The represented person was in the ocean for up to 15 hours before being rescued. During this ordeal, he suffered serious physical injuries.
The represented person was flown to Perth for medical treatment. While being treated for a bacterial infection at Royal Perth Hospital, the represented person underwent aortic valve replacement surgery. Unfortunately, following the surgery, the represented person sustained an acquired brain injury as a result of rupture of a mycotic aneurysm and subarachnoid haemorrhage during embolisation of the aneurysm. The acquired brain injury has resulted in cognitive impairment and a psychiatric condition known as 'organic personality disorder', which gives rise to complex behavioural issues, including impulsivity.
The represented person resides in Australia on a Temporary Protection Visa and has no family in this country. He has had periods of homelessness and has spent time in prison for a range of offences including assaults.
In October 2013, the Tribunal appointed the Public Trustee as plenary administrator of the represented person's estate. The Tribunal reappointed the Public Trustee as plenary administrator of the represented person's estate in November 2014, February 2018 and December 2018. In March 2014, the Tribunal appointed the Public Advocate as the represented person's limited guardian. In December 2018, the Tribunal reappointed the Public Advocate as the represented person's limited guardian with functions in relation to his status under the Migration Act 1958 (Cth) (Migration Act) and any action, proceedings or pending proceedings in respect of his Temporary Protection Visa and travel.[12]
Public Trustee's review application
[12] See BZ [2019] WASAT 14 (Ms F Child M).
On 13 December 2019, the Public Trustee applied for a review, under s 86(1)(aa) of the GA Act, of the plenary administration order made on 13 December 2018 appointing him as plenary administrator of the represented person's estate. In an accompanying report dated 13 December 2019, Ms Sobey explained that the reason the Public Trustee sought a review of the administration order was because he had 'become aware that it appears that … the Public Trustee Senior Legal Officer (who previously had conduct of this matter and who is no longer employed at the Public Trustee) made representations to the [Tribunal] in his report dated 3 January 2017 … that may not be accurate'.[13]
[13] Exhibit 1 page 14.
In the report to the Tribunal dated 3 January 2017, the Senior Legal Officer (legal officer) said that '[t]he Public [T]rustee instructed me not to pursue action against the Commonwealth' arising out of the incident in which the represented person suffered serious physical injuries following the capsize of the boat and while he was in the ocean for up to 15 hours near Christmas Island (incident) 'for a number of reasons', which he then outlined.[14] The legal officer also said in the report to the Tribunal that '[t]he Public Trustee gave consideration to whether the represented person might be able to pursue a claim for [c]riminal [i]njuries compensation', but '[w]e concluded … that any claim … would be excluded by reason of [s] 39 of the Criminal Injuries Compensation Act', because '[t]he represented person was probably acting in breach of the Migration Act by being a passenger on the boat and thereby aiding or abetting or procuring the commission of an offence [people smuggling] and thereby also committing an offence by reason of the provisions of [s] 11.2 (1) of the Criminal Code (C'wth)'.[15]
[14] Exhibit 1 page 24.
[15] Exhibit 1 page 25 (as written).
The evidence filed by the Public Trustee indicates that, on 1 April 2015, the Public Trustee's Principal Legal Officer allocated the matter to the legal officer for consideration of the represented person's claim or claims under common law and the Criminal Injuries Compensation Act 2003 (WA) arising from the incident. The Public Trustee's file contains an unsigned memo from the legal officer dated 1 May 2015 recommending that 'we do not take any action in this matter' (unsigned memo). However, there is no record in the Public Trustee's file that the legal officer sent the unsigned memo to the person who had delegated authority to make a decision as to whether the Public Trustee would commence legal action for the represented person. In her report accompanying the application for a review of the plenary administration order, Ms Sobey said the following:[16]
It remains unclear whether or not [the legal officer] sought and obtained approval from [the person with delegated authority] regarding his recommendation in the 2015 [u]nsigned [m]emo. Maybe he did, maybe he did not.
[16] Exhibit 1 page 18.
Ms Sobey also said in her report that she has discussed the advice set out in the legal officer's unsigned memo with the person who had, and continues to have, delegated authority to decide whether to commence proceedings for the represented person under the administration order, and that person 'has confirmed that he agrees with the advice and recommendation of [the legal officer] set out in the 2015 [u]nsigned [m]emo that the Public Trustee, on behalf of [the represented person], not pursue any common law and/or [criminal injuries compensation] personal injuries claim/s in relation to the sinking of the boat'.[17]
Member Child's determination
[17] Exhibit 1 page 20 (original emphasis).
Member Child heard the Public Trustee's application for a review of the plenary administration order on 27 February 2020. The represented person was already living in South Australia at that time and, although he was served with the notice of hearing with the assistance of his occupational therapist service provider in South Australia,[18] as indicated earlier, he did not attend the hearing (in person or by telephone). Ms Sobey appeared for the Public Trustee and the represented person's delegated guardian appeared for the Office of the Public Advocate. After hearing from the represented person's occupational therapist service provider in South Australia, Ms Sobey and the represented person's delegated guardian, and shortening time for service of the notice of hearing to less than 14 days to all parties, under s 41(3)(a) of the GA Act, as exceptional circumstances existed, Member Child made the following declaration and orders:[19]
[18] ts 2, 27 February 2020.
[19] Exhibit 1 page 1.
The Tribunal declares that the represented person … is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
The Tribunal orders:
Administration
The administration order dated 13 December 2018 is revoked and substituted with an order in the following terms:
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person with all the powers and duties of a plenary administrator save for the functions vested in the Public Advocate by order 3 of these orders.
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person, with all the powers and duties of a plenary administrator in respect of the management of any claim of the represented person against the Public Trustee, his employees, his agents or a solicitor engaged on his behalf.
4.The Public Trustee will meet all costs and disbursements of the Public Advocate incurred in the discharge of her functions as limited administrator of the estate of the represented person.
5.The administration order is to be reviewed by 13 December 2021.
Member Child decided to appoint the Public Advocate as limited administrator of the estate of the represented person 'in respect of the management of any claim of the represented person against the Public Trustee, his employees, his agents or a solicitor engaged on his behalf', for the following reasons:[20]
The issue that I am raising is that I have previously found in a case of - in similar circumstances where there has been a potential for a delay or a failure by a former legal officer of the Public Trustee to undertake certain steps on behalf of a represented person, that that might expose the Public Trustee to a claim against the Public Trustee and in those circumstances I couldn't find the Public Trustee suitable for appointment as administrator for that part of [the represented person's] estate. Now, that is a potential claim against the Public Trustee.
Now, Ms Sobey has said that they have looked at it and in their assessment there's probably not a claim against the Public Trustee, but the difficulty in that circumstance obviously is that there's a need for transparency and certainty about these sorts of matters, in particular where [the represented person] is someone whose own capacity is impaired, he's a very, well, socially isolated person in the sense that there are no other less formal ways of advancing his interests. He often acts against interest. So there is no other mechanism to assess that. I don't think he would be in a position to consider the advice of the Public Trustee and make a judgment about it. So in those circumstances he needs an administrator appointed to deal with that matter.
[20] ts 12-13, 27 February 2020.
The 'similar circumstances' referred to by Member Child in her reasons set out immediately above were in her decision RJK [2019] WASAT 109 in which case the Public Trustee had also 'quite properly [drawn] the attention of the Tribunal to irregularities in the conduct of a legal matter … by an individual legal officer then employed in the Public Trustee's Office who no longer works there'.[21] Having found in RJK at [11] that 'the Public Trustee is in a position of conflict in this matter and, therefore, cannot act as administrator of the estate of RJK in respect of that part of his estate being a potential claim against the Public Trustee', Member Child said and determined as follows in RJK at [13]-[17]:
13It is essential that any potential claim against the Public Trustee be dealt with impartially and that it be seen to be dealt with in this way. It has been the practice of the Tribunal that where a conflict arises in the administration of an estate in a particular matter, the Tribunal may make orders that provide for the continuing administration of the estate by the appointed administrator, but appoint another administrator to exercise certain functions in relation to that part of the estate to which the conflict relates.
14This can be illustrated where a family member is an administrator of an estate of a person who becomes entitled or who has a potential entitlement under a will or a deceased estate of a parent of both the represented person and the administrator. This, in some cases, creates a potential conflict, and this is resolved by the Tribunal, to ensure the best interests of the represented person, by appointing the Public Trustee to examine the interests of the represented person in the deceased estate of their late parent, but continuing the authority of the sibling to manage all other aspects of the represented person's estate.
15There have also been other cases before the Tribunal where the Public Trustee, for one reason or another, has a conflict in respect of an estate under his administration. If that conflict is identified, then, the Public Advocate may be appointed limited administrator, pursuant to s 68(5), of the GA Act. In this case, the Tribunal is not persuaded that the Public Advocate, without authority as a limited administrator of RJK's estate in respect of this particular matter, could provide any oversight of any proposal or opinion or could agree to any settlement proposed to resolve the matters in question.
16There is no one else in the life of RJK who can act as an advocate for him or can scrutinise the conduct of persons dealing with him or his estate or could be appointed as his administrator. He has no known living family in Australia. He has spent most of his adult life in one form of institutional care or another because of his disabilities and his challenging behaviours.
17The Tribunal finds that it is in the best interests of RJK that there be oversight of the particular matters raised in this review by an independent administrator with the necessary legal authority to deal with this matter on his behalf.
[21] RJK [9].
After Member Child gave the reasons set out at [20] above, the delegated guardian said '[c]an I just note that my own personal experience with guardianship has never been to undertake administration of anyone's finances' and '[s]o I don't feel that I have the knowledge and expertise to really comment on that'.[22] The member then said '[t]hat's understood'[23] and continued:[24]
I did ask that the [T]ribunal staff alert the Public Advocate to the possible appointment of [the] Public Advocate. So I'm fairly sure that they are aware that this was a potential order of the [T]ribunal because this has happened in the past. And it's not, I mean, it's not a common order, obviously, but it's one that has been made in the past in circumstances where, for one reason or another, the Public Trustee can't act.
Principles to be observed
[22] ts 13, 27 February 2020.
[23] ts 13, 27 February 2020.
[24] ts 13, 27 February 2020.
Section 4 of the GA Act sets out principles the Tribunal is required to observe in conducting these proceedings. Section 4 of the GA Act states as follows:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of —
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person’s previous actions.
Issues for determination
The following five principal issues arise for determination in these proceedings:
(1)Is the presumption of capacity displaced?
(2)Is there a need for the appointment of an administrator?
(3)If an administration order is made, should the Public Advocate be appointed as limited administrator (of last resort) in relation to any claim of the represented person against the Commonwealth of Australia (Commonwealth) or the Public Trustee?
(4)If an administration order is made, should the Public Trustee be appointed as plenary administrator in relation to the remainder of the represented person's estate or as limited administrator in relation to any claim of the represented person for personal injuries arising from medical treatment?
(5)If an administration order is made, when should it be reviewed by the Tribunal?
We will now address each of these issues in turn.
Is the presumption of capacity displaced?
As indicated earlier, under s 4(3)(d) of the GA Act, '[e]very person shall be presumed to be capable of … making reasonable judgments in respect of matters relating to his estate … until the contrary is proved to the satisfaction of the [Tribunal]'. As the Full Tribunal[25] said in LP [2020] WASAT 25; (2020) 99 SR (WA) 123 at [51]:[26]
The presumption of capacity for the purposes of financial decisionmaking can only be displaced if the Tribunal is satisfied, on a balance of probabilities, by clear and cogent evidence and feels an actual persuasion on the evidence of the matters set out in s 64(1) of the GA Act … .
[25] Judge Parry DP, Ms M Connor M and Dr H Hankey S Sess M.
[26] See LP [99]-[109].
Section 64(1) of the GA Act states as follows:
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 —
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint —
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
The term 'mental disability', which is used in s 64(1)(a) of the GA Act, is defined in s 3(1) of the GA Act to include, among other matters, 'a psychiatric condition' and 'an acquired brain injury'.
We are satisfied, on a balance of probabilities, by clear and cogent evidence and feel an actual persuasion on the evidence that the represented person has a 'mental disability', within the meaning and for the purposes of s 64(1) of the GA Act, namely the psychiatric condition 'organic personality disorder' and an acquired brain injury. There are multiple medical reports in the evidence indicating that the represented person has a diagnosis of organic personality disorder, for example a report by Dr DC, who is a psychiatrist, dated 7 April 2016,[27] a report by Dr DM, who is also a psychiatrist, to the Tribunal dated 11 September 2018[28] and a report by Dr JA, who was the represented person's general practitioner, to the Tribunal dated 7 October 2018.[29] Furthermore, a report by Dr JM, who is a cardiology registrar, to Dr JA dated 15 March 2016 indicates that the represented person has an '[a]cquired brain injury' leading to '[o]ngoing mental health issues'.
[27] Exhibit 1 pages 51-55.
[28] Exhibit 1 pages 78-82.
[29] Exhibit 1 pages 35-39.
Although the most recent medical report in evidence is dated 7 October 2018, in their reports to the Tribunal Dr DM and Dr JA both describe the represented person's organic personality disorder as 'static'.[30] Furthermore, a service provider report dated 19 November 2020 by an occupational therapist in South Australia, who was the represented person's service provider for nine to 12 months while he resided in that State, attaches a medical discharge summary from South Australia indicating that the represented person was hospitalised on six occasions in 2019 and on nine occasions between January and July 2020, most recently on 17 July 2020, and that he continues to suffer from serious psychiatric illness causing ongoing psychiatric symptoms. Consequently, we find that the represented person continues to have a mental disability.
[30] Exhibit 1 pages 80 and 37.
We are also satisfied, on a balance of probabilities, by clear and cogent evidence and feel an actual persuasion on the evidence that the represented person is unable, by reason of his mental disability, to make reasonable judgments in respect of matters relating to some, but not all, of his estate. In particular, both Dr DM and Dr JA state in their reports that the represented person is capable of making reasonable decisions in relation to simple financial matters, such as managing a budget, payment of accounts and purchasing essential items. Dr DM states in his report that the represented person is 'able to use and budget his weekly allowance well and apparently has been saving a small amount consistently'.[31] This is consistent with both the represented person's evidence that 'I know how to do the money save, how to spend, [and] how to not spend the money'[32] and the evidence of the Public Trustee trust manager for the represented person, who said in a report to the Tribunal dated 18 November 2020 that the represented person 'appears to be financially resourceful and capable of managing his day[-]to[-]day living expenses'.[33] The trust manager also said:[34]
We have no control over the sums of money paid to [the represented person's] bank accounts. [The represented person] somehow arranges for our authority to be removed from his bank accounts and gains online access.
[31] Exhibit 1 page 80.
[32] ts 7, 19 May 2020.
[33] Report to the Tribunal dated 18 November 2020 page 4.
[34] Report to the Tribunal dated 18 November 2020 page 4.
Although the represented person said at the hearing on 19 May 2020 that 'I need to remove the [P]ublic [T]rust[ee]',[35] he clearly indicated to the Tribunal (in English) at the hearing on 26 November 2020 that he only wishes to have the Public Trustee removed as his plenary administrator, so that he can manage his day-to-day finances himself, which he, Dr DM, Dr JA and the trust manager all consider he is capable of doing. The represented person indicated at the hearing on 26 November 2020 that he is 'happy'[36] for the Public Trustee to be appointed to consider and pursue court action on his behalf, as long as the lawyers talk to him and keep him involved.
[35] ts 7, 19 May 2020.
[36] ts 21, 26 November 2020.
On the evidence referred to above, we are not satisfied, on a balance of probabilities, by clear and cogent evidence and do not feel an actual persuasion that the represented person is unable, by reason of his mental disability, to make reasonable judgments in respect of simple financial matters and we are, therefore, not satisfied that the presumption of capacity is displaced in relation to such decisionmaking.
However, we are satisfied, on a balance of probabilities, by clear and cogent evidence and feel an actual persuasion on the evidence that the represented person is unable, by reason of his mental disability, to make reasonable judgments in respect of complex financial matters and we are, therefore, satisfied that the presumption of capacity is displaced in relation to such decisionmaking. In particular, both Dr DM and Dr JA state in their reports that the represented person does not have the cognitive capacity to make reasonable decisions in relation to complex financial matters, such as management of property or large sums of money, purchase or sale of significant assets, pursuing entitlements, including income and superannuation, and advocating for his own interests with financial institutions (although, as indicated earlier, the represented person has certainly demonstrated that he is capable of managing his bank accounts and arranging for alterations of his bank accounts with financial institutions). In particular, Dr DM states as follows:[37]
Patient has in the past impulsively bought and sold different cars within a week. When questioned further, he accounted for it as trading for profit, but was doing this without awareness about tax, and when this was pointed out, he was unable to understand.
[37] Exhibit 1 page 80.
Dr JA similarly expresses the opinion that the represented person is incapable of making reasonable financial decisions in relation to complex financial matters by reason of 'impulsivity - [r]educed responsibility'.[38]
[38] Exhibit 1 page 37.
Furthermore, we are satisfied, on a balance of probabilities, by clear and cogent evidence and feel an actual persuasion on the evidence that the represented person is unable, by reason of his mental disability, to make reasonable judgements in relation to bringing, defending and settling actions, suits, appeals and other legal proceedings in relation to any claim he may have against the Commonwealth arising out of the incident or against the Public Trustee, his employees, agents or any solicitor engaged on his behalf, in consequence of the Public Trustee's consideration and management on his behalf of any potential cause of action or other claim arising out of the incident, and in relation to his medical negligence claim arising from medical treatment received by him in or about 2012 (medical negligence claim). Although Dr DM and Dr JA both state in their reports that they are 'unsure' as to whether the represented person has the cognitive capacity to make reasonable decisions in relation to legal matters, such as the ability to commence, defend or settle proceedings, we are satisfied on the whole of the evidence that he is unable, by reason of his mental disability, to make reasonable judgments in respect of matters relating to the part of his estate involving any claim he may have against the Commonwealth arising out of the incident or against the Public Trustee in consequence of the consideration and management on his behalf of any potential cause of action or other claim arising out of the incident, and in relation to his medical negligence claim. This requires the cognitive capacity to obtain and consider legal advice in relation to complex matters and potentially to commence and prosecute complex legal proceedings against the Commonwealth Government, the Public Trustee or medical entities and professionals. As indicated earlier, the represented person is not able to understand the concept of, or the legal obligation to pay, tax. Furthermore, although Dr DM said that he was 'unsure' as to whether the represented person is able to make reasonable judgments in relation to legal matters, he also said the following:[39]
Attempts to explore his past legal proceedings with patient resulted in very superficial answers based on his emotions at that point. He was facing a dilemma with his accommodation and his solution was to be dishonest to authorities and he was unable to account or describe the consequences should he be found out.
[39] Exhibit 1 page 80.
The evidence is overwhelming that the represented person is unable, by reason of his mental disability, to make reasonable judgments in respect of the part of his estate concerning any claim he may have against the Commonwealth arising out of the incident or against the Public Trustee in consequence of the consideration and management on his behalf of any potential cause of action or other claim arising out of the incident, and in relation to his medical negligence claim. The presumption of capacity is, therefore, displaced in relation to such decision-making.
Is there a need for the appointment of an administrator?
There is clearly no need for the appointment of an administrator in relation to the part of the represented person's estate involving simple financial decision-making, such as managing a budget, payment of accounts and purchasing essential items. Notwithstanding his mental disability, the represented person is capable of making such decisions for himself. Furthermore, although we have found that the represented person is unable, by reason of his mental disability, to make reasonable judgments in respect of matter relating to the part of his estate involving complex financial decision-making, such as management of property or large sums of money, purchase or sale of significant assets and pursuing entitlements, including income and superannuation, the represented person is unlikely to have to make such decisions and there is, consequently, no need for the appointment of an administrator to make such decisions on his behalf.
However, there is a need for the appointment of an administrator of the part of the represented person's estate concerning any claim he may have against the Commonwealth arising out of the incident or against the Public Trustee, his employees, agents or any solicitor engaged on his behalf, in consequence of the Public Trustee's consideration and management on his behalf of any potential cause of action or other claim arising out of the incident, and in relation to his medical negligence claim.
As indicated earlier, the Public Advocate approached Maurice Blackburn to determine if they would provide advice as to any potential claim of the represented person against the Public Trustee. At the further hearing on 26 November 2020, Mr Desaubin indicated that, ultimately, Maurice Blackburn advised the Public Advocate that, because they act for the Public Trustee in other matters, they have a conflict of interest and cannot give advice in relation to any potential claim against the Public Trustee. However, before advising that they could not act, Maurice Blackburn indicated to the Public Advocate that proceedings may need to be taken against the Commonwealth prior to, or in conjunction with, proceedings against the Public Trustee, his employees, agents or any solicitor engaged on his behalf, and that, consequently, if the limited administration order appointing the Public Advocate is confirmed by the Full Tribunal, then the functions conferred upon the Public Advocate should be expanded to include potential proceedings against the Commonwealth.
In his most recent written submissions to the Tribunal dated 19 November 2020, Mr Desaubin indicated that, on 13 October 2020, he recommended to the Public Advocate that Senior Counsel should be briefed to provide advice in relation to potential legal proceedings by the represented person against the Public Trustee and that, on 5 November 2020, the Public Advocate agreed to his recommendation. On 18 November 2020, Mr Desaubin spoke with Senior Counsel, who said that he is happy to provide advice to the Public Advocate in relation to potential legal proceedings by the represented person against the Commonwealth or the Public Trustee, although he said he would be unable to provide the advice until the end of January 2021, and he requested a full brief to be able to do so. Senior Counsel also highlighted the possibility of a claim against the Public Trustee having a limitation period expiring on 1 May 2021 (six years after the date of the legal officer's unsigned memo). Mr Desaubin also said in his submissions that '[i]t is agreed that [he] would provide [Senior Counsel] with a full brief of relevant materials after the s17A hearing on 26/11/20, if the Public Advocate is reappointed as limited administrator'.[40]
[40] Submissions dated 19 November 2020 page 6.
There is clearly a need for the appointment of a limited administrator of the part of the represented person's estate concerning any claim he may have against the Commonwealth arising out of the incident or against the Public Trustee in consequence of the Public Trustee's consideration and management on his behalf of any potential cause of action or other claim arising out of the incident. Furthermore, given the delays as a result of Maurice Blackburn's consideration of whether they could provide advice and ultimate determination that they have a conflict, and the potential limitation issue identified by Senior Counsel, there is now an urgent need for the appointment of an administrator. It is for this reason that we made the declaration and administration orders following the hearing on 26 November 2020 and said that we would publish written reasons for our decision later.
In written submissions dated 8 May 2020, Mr Desaubin said on the basis of discussions with Maurice Blackburn that 'there appears to be reasonable grounds to suspect [the medical negligence] claim [of the represented person against medical professionals involved in his treatment in 2012] was viable'.[41]
[41] Exhibit 1 page 98.
In a legal report to the Tribunal dated 12 May 2020, Ms Sobey said that, in June 2019, the Public Trustee received a letter of advice and conditional costs agreement from Maurice Blackburn in relation to the represented person's medical negligence claim. Ms Sobey said that she had considered the terms of the agreement and discussed proposed amendments to the agreement with a representative from Maurice Blackburn 'with a view to finalising the terms of that agreement if the Public Trustee is re-appointed administrator for [the represented person] (with appropriate authority) following the hearing on 19 May 2020 and if it is appropriate for the Public Trustee to instruct Maurice Blackburn … in relation to [the represented person's] … medical negligence claim'.[42] In a subsequent legal report to the Tribunal dated 19 November 2020, Ms Sobey related the same position on behalf of the Public Trustee.
[42] Public Trustee legal report to SAT dated 12 May 2020 page 2.
Given that the Public Trustee was plenary administrator of the estate of the represented person during the period June 2019 - May 2020 (and has been since October 2013), it is unclear why the Public Trustee did not instruct Maurice Blackburn in relation to the medical negligence claim in May 2020 (or earlier). Although the Public Trustee quite properly sought a review of the plenary administration order on 13 December 2019 in consequence of the unusual and concerning circumstances of the legal officer's apparent conduct in relation to the Public Trustee's consideration and management of any potential cause of action or other claim on behalf of the represented person arising out of the incident, the unusual and concerning conduct related to consideration of potential causes of action against the Commonwealth and a claim for criminal injuries compensation, not the medical negligence claim. In any case, there is certainly a need for the appointment of a limited administrator of the part of the represented person's estate concerning his medical negligence claim arising from medical treatment received by him in or about 2012.
Should the Public Advocate be appointed as limited administrator (of last resort) in relation to any claim of the represented person against the Commonwealth or the Public Trustee?
Section 68 of the GA Act concerns who may be appointed as an administrator and states as follows:[43]
[43] Emphasis in s 68(5) of the GA Act added.
(1)An administrator (including a joint administrator) shall be —
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal —
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that —
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible —
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
As s 68(5) of the GA Act states, except where there is a joint appointment, the Tribunal cannot appoint the Public Advocate as an administrator 'unless there is no other individual or corporate trustee who is suitable and willing to act'. It is for this reason that the Public Advocate, if appointed as an administrator of the estate of a represented person (other than jointly with another person or persons), is commonly referred to as the 'administrator of last resort'.
As Member Child correctly recognised, the Public Trustee is in a position of conflict of interest in relation to any claim of the represented person against him in consequence of the circumstances of the consideration and management on behalf of the represented person of any potential cause of action or other claim arising out of the incident. As she also correctly recognised, the circumstances of the Public Trustee's consideration and management of any potential cause of action or other claim on behalf of the represented person arising out of the incident, in particular the apparent conduct of the legal officer, are sufficiently unusual and concerning that it is in the best interests of the represented person for there to be an independent and impartial limited administrator appointed to obtain and consider legal advice as to whether any cause of action is open in consequence of those circumstances and, if so, its prospects of success, and, if it is appropriate to do so in the best interests of the represented person, to commence and prosecute proceedings.
As the member also correctly recognised, there is 'a need for transparency and certainty about these sorts of matters, in particular where [the represented person] is someone whose own capacity is impaired'.[44] It is not only in the best interests of the represented person, but it is also in the public interest in terms of ensuring that there is transparency, accountability and confidence in the Public Trustee in the exercise of his important role as the administrator of the estates of many vulnerable people for whom there is no other person suitable and willing to be appointed, that an independent and impartial limited administrator is appointed in this case.
[44] ts 13, 27 February 2020.
Furthermore, as was the case in RJK, the represented person has no family in Australia and no one else in his life who can act as an advocate for him or who could be appointed as his administrator (other than the Public Trustee, who has a conflict of interest). As Member Child recognised, this is a case in which there is 'no other individual or corporate trustee who is suitable and willing to act', other than the Public Advocate as the administrator of last resort.
Mr Desaubin has provided four sets of written submissions on behalf of the Public Advocate, dated 26 March 2020, 30 April 2020, 8 May 2020 and 19 November 2020, in which he submits that, for four principal reasons,[45] the Public Advocate should not be appointed as administrator of last resort in relation to any claim of the represented person against the Public Trustee, his employees, agents and any solicitor engaged on his behalf, in the circumstances of this case.
[45] A further principal reason on account of which Mr Desaubin submitted earlier in these proceedings that the Public Advocate should not be appointed as limited administrator was that the represented person had moved to South Australia and the Public Trustee and the Public Advocate had both applied to SACAT for the appointment of the equivalent office holder in that State.
First, Mr Desaubin submits that '[i]n effect, the Public Advocate had no notice of her possible appointment at a hearing on 27 February 2020', because although the Tribunal sent a letter to the Public Advocate on 25 February 2020 advising of her possible appointment as administrator (at the hearing on 27 February 2020), '[t]he notice did not come in the form of an order, as is the usual practice' and the letter was therefore 'simply forwarded to the delegated guardian, who attended the hearing on 27/02/20, but does not appear to have understood the issues to be discussed or the ramifications'.[46]
[46] Submissions dated 26 March 2020 [2] and [3] (Exhibit 1 page 106).
However, the Tribunal did give proper notice to the Public Advocate of her possible appointment by the letter dated 25 February 2020 which was forwarded to the delegated guardian prior to the hearing on 27 February 2020. Furthermore, in light of the appointment of the Public Advocate as administrator of last resort by the Tribunal in RJK, also in circumstances of 'irregularities in the conduct of a legal matter … by an individual legal officer then employed by the Public Trustee's Office who no longer works there',[47] in written reasons published on 9 November 2019, three-and-a-half months before the Tribunal notified the Public Advocate of her possible appointment as administrator in the s 86 review proceedings on 25 February 2020, delegated guardians within the Office of the Public Advocate should arguably have had some professional development or notice that the Public Advocate may be appointed as administrator of last resort if further cases of this nature were uncovered by the Public Trustee. Finally, in relation to the Public Advocate's first submission, although the delegated guardian may not have understood the implications of the notice of possible appointment of the Public Advocate as administrator, for the reasons given above, Member Child's determination to appoint the Public Advocate as limited administrator of the represented person's estate was the only reasonable decision open in the circumstances, given that the Public Trustee was (and is) in a position of conflict of interest and there was (and is) no other individual or corporate trustee who is suitable and willing to act.
[47] RJK [9].
Secondly, Mr Desaubin submits that the Public Advocate does not have the financial or human resources of the Public Trustee. He submits that '[o]ne reason it may be in [the represented person's] best interest[s] for the Public Trustee to retain a sole plenary appointment, is the abundant resources at their disposal', including 'its own legal team'.[48] In contrast, the Public Advocate 'has no legal team' and appointments of the Public Advocate as administrator of last resort are managed by a Principal Investigator Advocate in the Office of the Public Advocate. In his submissions dated 8 May 2020, Ms Desaubin said that it was anticipated that, as at 11 May 2020, the Public Advocate 'holds nine (9) matters where we are limited administrator', although four of those matters were 'largely complete'.[49] He also noted that, during the period 1 January to 8 May 2020, the Public Advocate was appointed as limited administrator by the Tribunal on four occasions (including in the s 86 review proceedings on 27 February 2020) and said that these matters 'will take time to review in the current caseload environment'.[50] He submits that '[i]t can be a daunting proposition when one party has had the benefit of a few years to deal with certain matters, but the Public Advocate is allocated the matter with time limitations passed or fast approaching'[51] and that '[t]he Public Advocate remains conscious that for the very reasons we have been appointed, we too may be liable if we do not oversee a matter with great care and diligence'.[52]
[48] Submissions dated 30 April 2020 [6] (Exhibit 1 page 103).
[49] Submissions dated 8 May 2020 [17] (Exhibit 1 page 99).
[50] Submissions dated 8 May 2020 [18] (Exhibit 1 page 99).
[51] Submissions dated 8 May 2020 [18] (Exhibit 1 page 99).
[52] Submissions dated 30 April 2020 [7] (Exhibit 1 page 103).
We recognise that, unlike the Public Trustee, the Public Advocate has no lawyers within her office. We also recognise that, as Mr Desaubin said, in the matters in which the Public Advocate has been appointed as limited administrator by the Tribunal, in circumstances where the Public Trustee has a conflict, it is likely that the Public Advocate will only have a relatively short period of time, in comparison to the Public Trustee, in which to review and understand the implications of the matter. However, s 68(5) of the GA Act recognises that there may well be circumstances in which 'there is no other individual or corporate trustee [including the Public Trustee] who is suitable and willing to act' as administrator of the estate of a represented person. This is such a case.
Furthermore, as indicated earlier, Member Child ordered that '[t]he Public Trustee will meet all costs and disbursements of the Public Advocate incurred in the discharge of her functions as limited administrator of the estate of the represented person'.[53] Thus, although no doubt the appointment of the Public Advocate as limited administrator of the estate of the represented person will take up considerable time of the relevant Principal Investigator Advocate who manages the matter, as well as some of the time of the Public Advocate herself, in circumstances where the Office of the Public Advocate has a very heavy workload as guardians of represented persons, the Public Advocate can retain and instruct solicitors, whether in private practice or at the State Solicitor's Office, to provide advice and conduct any proceedings, and the Public Trustee is required to meet all costs and disbursements incurred.
[53] Order 3 made on 27 February 2020 (Exhibit 1 page 1).
Finally, in relation to the Public Advocate's second submission, the administration order made by Member Child, and the administration order that we have substituted in these proceedings, appointing the Public Advocate as limited administrator of the represented person's estate, is tailored and limited in terms of the function and authority of the Public Advocate to only those matters in respect of which the Public Trustee has a conflict of interest.
Thirdly, referring to the 'jurisdiction [of the Tribunal] … for giving directions to … administrators', under s 13(b) of the GA Act, and to the decision of the Tribunal[54] in M [2008] WASAT 262 at [101], Mr Desaubin submits that the Public Trustee should be appointed as plenary administrator of the estate of the represented person with directions by the Tribunal to:[55]
•Seek independent legal advice as to the prospect of a claim against the Commonwealth, with reference to the Memorandum of 1 May 2015; [and]
•Consider the merit of a claim pertaining to medical negligence and to pursue such a claim where merit exists.
[54] Ms J Toohey SM, Mr J Mansveld M and Ms H Leslie S Sess M.
[55] Submissions dated 30 April 2020 [12] (Exhibit 1 page 104).
In M, the Tribunal said at [101] that it had considered whether a 'conflict of interest could be dealt with by means of directions' to a son of an elderly woman with dementia to perform his functions under an Enduring Power of Attorney so as to give effect to his mother's wishes. The Tribunal determined, however, that '[w]e are not satisfied that it [the conflict of interest] can [be dealt with by means of directions]', given the complexity of the mother's estate, the number of matters, including legal proceedings, the son would be required to deal with on her behalf, and the personal conflict that existed between the son and his brother. Furthermore, the conflict of interest in that case was quite different to the conflict of interest in this case and did not involve potential legal proceedings by the mother against the son.
The Public Trustee's conflict of interest in this case means that the first direction suggested by Mr Desaubin is entirely inappropriate and contrary to the best interests of the represented person. Such a direction would also be inconsistent with the public interest in terms of transparency, accountability and confidence in the Public Trustee as the administrator of the estates of many vulnerable people. Once independent legal advice is obtained, the appointed administrator is required to make an independent and impartial decision, in the best interests of the represented person, as to whether any arguable cause of action should be pursued. The first direction suggested by Mr Desaubin also misses the point of the represented person potentially having an arguable cause of action against the Public Trustee in light of the circumstances of the Public Trustee's consideration and management of any potential cause of action or other claim the represented person may have, or may have had, at the time of the unsigned memo. Obviously, this conflict of interest could not be 'dealt with' by means of a direction to the Public Trustee as administrator.
The second direction suggested by Mr Desaubin is unnecessary, because the Public Trustee has already commenced the process of considering the merit of a claim pertaining to medical negligence and recommends to the Full Tribunal that it be appointed as limited administrator of the estate of the represented person with the function to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to the represented person's medical negligence claim.
Finally, Mr Desaubin submits that 'the Public Trustee holds a view that they agree with the advice in the [unsigned] memo', if '[t]hey agree now, so they would have agreed back in 2015', and 'the Public Advocate should not be placed in a position where that decision is to now be scrutinized'.[56] However, the fact that the relevant officer of the Public Trustee who had, and continues to have, delegated authority to commence proceedings on behalf of the represented person agrees with the advice in the unsigned memo only compounds the Public Trustee's conflict of interest and underscores the need for the appointment of an independent and impartial limited administrator (the Public Advocate) to obtain legal advice as to whether the represented person has an arguable cause of action against the Commonwealth or the Public Trustee, his employees, agents or any solicitor engaged on his behalf, and, if so, to consider and determine whether it is in the best interests of the represented person to commence and prosecute proceedings.
[56] Submissions dated 26 March 2020 [38] and [39] (Exhibit 1 page 112).
It may well ultimately be the case that the advice in the unsigned memo is considered to be correct and that there is no arguable cause of action with sufficient prospects of success to warrant proceedings being commenced against the Commonwealth or the Public Trustee, his employees, agents or any solicitor engaged on his behalf, notwithstanding the unusual and concerning circumstances. However, there is obviously a need for an independent and impartial assessment, based on legal advice, to be made.
Section 68(5) of the GA Act contemplates that, where there is 'no other individual or corporate trustee who is suitable and willing to act', then the Tribunal may appoint the Public Advocate as administrator of last resort. The Public Advocate does not submit that there is any other individual or corporate trustee who is suitable and willing to act, other than the Public Trustee, who has a relevant conflict of interest. Thus, the circumstances of this case are precisely those contemplated by Parliament in s 68(5) of the GA Act where the Public Advocate, who is an independent public office holder, may be appointed.
Mr Desaubin also submits that '[i]f the Public Advocate was to retain the appointment, we believe it would be in [the represented person's] best interests for the wording of the order to be revisited'.[57] In his most recent written submissions, Mr Desaubin says that 'it has been put to us that before one could pursue a claim against the Public Trustee, one would first have to test the claim against the Commonwealth …' and that the expression of the limited administration order made on 27 February 2020 is 'insufficient to pursue any claim against anyone, other than the Public Trustee'.[58] We accept this submission and, consequently, the limited administration order we made on 26 November 2020 extends the function and authority of the Public Advocate as limited administrator to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to any claim of the represented person against the Commonwealth. We also considered it appropriate to add an express function and authority for the Public Advocate to obtain financial, medical and other information and documentation regarding the represented person relevant to the functions in the limited administration order, so as to be able to obtain advice and, if appropriate, commence and prosecute proceedings.
[57] Submissions dated 30 April 2020 [5] (Exhibit 1 page 102).
[58] Submissions dated 19 November 2020 page 6.
The order made by Member Child that '[t]he Public Trustee will meet all costs and disbursements of the Public Advocate incurred in the discharge of her functions as limited administrator of the estate of the represented person' is consented to by the Public Trustee and is appropriate in the circumstances of this case. At the hearing on 26 November 2020, Ms Sobey specifically consented on behalf of the Public Trustee to the making of an equivalent order by the Full Tribunal in these proceedings on the basis that the limited administration order appointing the Public Advocate as limited administrator of the estate of the represented person would extend to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to any claim of the represented person against the Commonwealth, and not just against the Public Trustee, his employees, agents or any solicitor engaged on his behalf.
We conclude that, for the reasons given above, the Public Advocate should be appointed as limited administrator of the estate of the represented person in relation to any claim of the represented person against the Commonwealth or the Public Trustee, his employees, agents or any solicitor engaged on his behalf.
Should the Public Trustee be appointed as plenary administrator of the remainder of the represented person's estate or as limited administrator in relation to any claim of the represented person for personal injuries arising from medical treatment?
For the reasons given earlier, the presumption of capacity is not rebutted on the evidence in relation to simple financial decision-making by the represented person and, although the presumption of capacity is rebutted on the evidence in relation to complex financial decisionmaking by the represented person, there is no need for the appointment of an administrator of his estate to make any complex financial decisions for him. It follows that the plenary administration order made on 27 February 2020 appointing the Public Trustee as the plenary administrator of the represented person's estate must be revoked.
As indicated earlier, the Public Trustee has received a letter of advice and conditional costs agreement from Maurice Blackburn in relation to the represented person's medical negligence claim arising out of his treatment at Royal Perth Hospital in 2012. As also indicated earlier, the Public Trustee's position is that, if reappointed as administrator of the represented person's estate with appropriate authority, and if it is appropriate to do so, the Public Trustee proposes to instruct Maurice Blackburn in relation to the represented person's medical negligence claim.
Although it is unclear why the Public Trustee did not obtain advice and consider pursuing potential legal proceedings by the represented person arising out of his medical negligence claim earlier, the conflict of interest that requires the appointment of the Public Advocate as administrator of last resort in relation to any claim of the represented person against the Commonwealth or the Public Trustee, his employees, agents or any solicitor engaged on his behalf, does not extend to potential legal proceedings arising out of his medical negligence claim.
It is also in the represented person's best interests for advice to be obtained and consideration to be given to whether he has an arguable cause of action in relation to medical negligence and, if so, for consideration to be given as to whether it is in his best interests for legal proceedings to be commenced and pursued.
Finally, as indicated earlier, although the represented person wishes to have the plenary administration order revoked, he is 'happy'[59] for the Public Trustee to be appointed to consider and pursue court action on his behalf, as long as the lawyers talk to him and keep him involved.
[59] ts 21, 26 November 2020.
Ms Sobey submits that, if the Public Trustee is appointed as limited administrator of the estate of the represented person in relation to potential proceedings arising out of his medical negligence claim, an express function and authority to obtain financial, medical and other information and documentation regarding the represented person relevant to the functions in the administration order should be added. We accept this submission. Paragraph (b) of the limited administration order appointing the Public Trustee as limited administrator of the estate of the represented person (and paragraph (b) of the limited administration order appointing the Public Advocate as limited administrator of the estate of the represented person) which we made on 26 November 2020 adopts the wording suggested by Ms Sobey in her submissions.
We conclude that, for the reasons given above, the Public Trustee should be appointed as limited administrator of the estate of the represented person to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to his personal injuries claim arising from medical treatment received by him in or about 2012.
When should the administration orders be reviewed by the Tribunal?
On 27 February 2020, Member Child ordered that the administration orders made by her on that day were to be reviewed by 13 December 2021, which would coincide with the date by which the Tribunal is required to review the current limited guardianship order appointing the Public Advocate as limited guardian of the represented person under s 84 of the GA Act. We agree that it is sensible for the administration and guardianship orders to be reviewed concurrently.
Furthermore, review of the administration orders by 13 December 2021 will provide sufficient time for the limited administrators to obtain and consider legal advice in relation to potential proceedings and, if it is appropriate to do so in the best interests of the represented person, to commence such proceedings. If, based on legal advice, there is no arguable cause of action, or insufficient prospects of success to warrant, in the best interests of the represented person, commencement of proceedings, in relation to either or both of the appointments, then the relevant administration order or orders will be revoked. On the other hand, if proceedings have been commenced, then the relevant administration order or orders will be extended by reference to the anticipated length of proceedings.
Conclusion
For the reasons set out above, we have determined that:
•the presumption of capacity is displaced in relation to the represented person's capacity to make reasonable judgments in respect of matters relating to part of his estate, namely complex financial decision-making and potential legal proceedings by the represented person against the Commonwealth or the Public Trustee, his employees, agents and any solicitor engaged on his behalf, and arising from medical treatment received by the represented person in or about 2012;
•there is a need for the appointment of a limited administrator or administrators of part of the represented person's estate, namely any claim he may have against the Commonwealth or the Public Trustee, his employees, agents or any solicitor engaged on his behalf, and arising from medical treatment received by the represented person in or about 2012;
•the Public Advocate should be appointed as limited administrator of the estate of the represented person with the functions to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to any claim of the represented person against the Commonwealth or the Public Trustee, his employees, agents or any solicitor engaged on his behalf, and to obtain financial, medical and other information and documentation relevant to the functions in the order regarding the represented person;
•the Public Trustee should be appointed as limited administrator of the estate of the represented person with the functions to bring, defend and settle actions, suits, appeals and other legal proceedings in relation to the represented person's personal injuries claim arising from medical treatment received by the represented person in or about 2012 and to obtain financial, medical and other information and documentation relevant to the functions in the order regarding the represented person; and
•the limited administration orders should be reviewed by the Tribunal concurrently with the statutory review of the current limited guardianship order in respect of the represented person.
Consequently, on 26 November 2020, we made the declaration and orders set out at [9] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D PARRY, DEPUTY PRESIDENT
21 DECEMBER 2020