BZ - [2020] WASAT 159

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…

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.

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Details

AGLC: BZ [2020] WASAT 159
Case: [2020] WASAT 159
Decision Date: 21 DECEMBER 2020

CaseChat Overview and Summary

In the case before the court, the Public Trustee sought a review of a plenary administration order concerning the estate of a represented person, who had a mental disability and was deemed unable to manage their estate. The represented person, who was living in South Australia, did not attend the hearing. The Public Trustee argued for a review of the administration order, which had initially appointed the Public Advocate as a limited administrator for any claims against the Public Trustee and its employees or agents. The represented person's delegated guardian also appeared on behalf of the Office of the Public Advocate. After considering the submissions and the represented person's occupational therapist service provider, the court found that the represented person was unable to make reasonable judgments about their estate due to their mental disability and required an administrator.

The central legal issue before the court was whether the Public Advocate should be appointed as a limited administrator for any claims against the Public Trustee, considering the potential for claims arising from any past failures or delays by the Public Trustee's legal officers. The court determined that appointing the Public Advocate as a limited administrator was necessary to ensure transparency and certainty in managing such claims. This was particularly important given the represented person's impaired capacity and social isolation, leaving no other means to assess and manage these claims effectively. The court found that the represented person was not in a position to consider the Public Trustee's advice and make an informed judgment on these matters. Consequently, the court made a limited administration order appointing the Public Advocate as a limited administrator to handle any claims against the Public Trustee, while the Public Trustee continued as the limited administrator for other aspects of the estate, including a medical negligence claim arising from medical treatment.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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:AdministrationThe 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.