CD - [2006] WASAT 372

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: CD [2006] WASAT 372

MEMBER: MS F CHILD (MEMBER)
DR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
MS R CARROLL (SENIOR SESSIONAL MEMBER)

HEARD: 18 MAY 2006 AND 11 JUNE 2006

DELIVERED : 20 DECEMBER 2006

FILE NO/S: GAA 410 of 2006

BETWEEN: CD
Represented Person

Catchwords:

Guardianship and administration- Remuneration of the Administrator - Past unauthorised remuneration - Rate of future remuneration - Expenses

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 64, s 68, s 68(2)(a), s 68(2)(b), s 72, s 72(2), s 72(3), s 80, s 80(3), s 87, s 90, s 117, s 117(3), s 117(4), s 118
State Administrative (Conferral of Jurisdiction) Amendment and Repeal Act 2004(WA), s 443
State Administrative Tribunal Act 2004 (WA), s 9, s 9(b), s 74(b), s 82
Trustee Companies Act 1987 (WA), s 18

Result:

Administrator appointed
Remuneration ordered

Category: B

Representation:

Counsel:

Represented Person : No appearance

Solicitors:

Represented Person : No appearance

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

Re E 12 SR (WA) 246
SC and SAS [2005] WASAT 255

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On review of an administration order, the State Administrative Tribunal confirmed the appointment of Perpetual Trustees WA Limited, a trustee company, as administrator for a man suffering the effects of brain damage as a result of a motor vehicle accident in 1988. The company had first been appointed as administrator of his estate in 1995 by the Guardianship and Administration Board.
The Tribunal considered that the estate under administration was of sufficient size and complexity to warrant remuneration, and the Tribunal ordered that future remuneration of the administrator be at the usual rate charged by the company for this size estate.
As the order under review had not expressly provided for remuneration of the administrator, the Tribunal's order regularised the remuneration of the administrator under the Guardianship and Administration Act 1990 (WA) which requires express authority for remuneration.
The Tribunal also considered the past charges applied to the estate since 1995. The Tribunal found that the administrator had acted in good faith and in the mistaken belief it was entitled to be paid remuneration for administration of the estate. Most importantly, as the work had been done and the represented person had benefited from the administration of the estate, it was appropriate that remuneration be authorised for this period.
The Tribunal ordered remuneration for the period 3 March 1995 equal to an amount which would have been charged had the remuneration been authorised and fixed at the rate agreed and charged by the administrator on the estate at the time of appointment until the order was reviewed in 2000. For the period from 2000 until the review of that order in 2006, the administrator was authorised to charge the level of fees as disclosed in documents put before the Board in 2000. Thereafter, the administrator was authorised to charge its published rate of fees for that size estate.
The review of the order in this case raised the same issues of principle as raised in other matters before the Tribunal. All three cases were heard together and decisions reserved in each. Written decisions are delivered in those cases together with this one.

Background

These reasons are published pursuant to s 74(b) of the State Administrative Tribunal Act 2004 (WA) where the Tribunal has reserved a decision, and relate to decisions of the Tribunal in respect of the estate of CD (represented person).
The represented person is a man who suffered significant injuries in a pedestrian versus motor vehicle accident in 1988. He is currently cared for at his home by his father. At the time of the appointment of the administrator, there was evidence before the Guardianship and Administration Board (the Board) that the represented person had been financially exploited in his relationship with his partner and that he remained at risk of financial exploitation.
Both parents of the represented person attended hearings before the Tribunal and submitted written submissions supporting the continuation of the appointment of the administrator.

Applications before the Tribunal

Applications are brought under the Guardianship and Administration Act 1990 (WA) (GA Act) for leave to apply for review and an application for review of an administration order. The applicant is the Executive Officer of the State Administrative Tribunal (Tribunal).
Section 87 provides that:
"(1)Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.
…
(5)The State Administrative Tribunal may
…
(b)if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review."
The applications seek review of an order made by the Board on 27 November 2000, which confirmed an order dated 31 October 1995, which confirmed the appointment of Perpetual Trustees WA Limited, a trustee company (administrator), as the plenary administrator. The appointment of the administrator was first made on 3 March 1995. The order makes no provision for remuneration.
The reason given for the application for leave to apply for the review is the ambiguity regarding the fees charged by the administrator. The ambiguity lies in the fact that remuneration is being charged but not in accordance with orders made by the former Board, in circumstances where presumably it was expected that fees would be charged. It is submitted by the applicant that it is not in the best interests of the represented person that there be ambiguity as to the authorised remuneration.
The jurisdiction and functions of the Board were absorbed by the Tribunal from January 2005. The Public Trustee now has in his possession "accounts" files that were previously held by the Board.
For the review hearing, the Public Trustee provided a report regarding the estate of the represented person, and one of his officers attended the hearings. Representatives of the administrator, including the Trust Manager and the State Manager, attended the hearing with counsel and provided submissions. The submissions of the Public Trustee and of counsel greatly assisted the Tribunal in considering the issues before it.
Leave was granted and the review proceeded. During the hearing, it was evident that further information was required. The hearing was adjourned to 11 July 2006 for further information to be provided by the administrator to the Tribunal, in particular to itemise the fees charged during the period of the order, to differentiate the nature of the various charges which might be characterised either as remuneration or reimbursement of expenses, and for submissions as to the appropriate rate of remuneration to be ordered for services rendered by the administrator in the future.
The order for adjournment included the following:
"The administrator is to file with the Tribunal by close of business on the 30 June 2006 submissions which address the following:
(a)The current composition and value of the estate of the represented person as at June 2006;
(b)The full range of the charges currently applied to the represented person's estate, other charges previously but not currently applied, and the nature of the services provided for those charges;
(c)What is charged as expenses of the administration of the estate and during what time periods have those expenses been charged;
(d)Proposals for the rate of remuneration to be fixed by the Tribunal; and
(e)Any other matter the administrator considers relevant to these proceedings."

The review

The powers of the Tribunal on review of an administration order are set out in s 90 of the GA Act:
"(1)Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order
(a)amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b)revoke the order, or revoke the order and substitute another order for it; or
(c)without limiting paragraphs (a) and (b)
(i)revoke the appointment of any guardian or administrator;
(ii)appoint a new or additional guardian or administrator;
(iii)appoint an alternate guardian.
(2)A review under this Part is in the State Administrative Tribunal's original jurisdiction."

Capacity

On the review of an order, the Tribunal must consider whether the represented person remains a person for whom an order can be made, that is, to whom s 64 of the GA Act applies.
Section 64 provides:
"(1)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,"
A recent report, dated 8 May 2006, provided by the represented person's general practitioner refers to a diagnosis of "Post head injury. Closed cerebral trauma" and describes the condition of cognitive impairment as a "static" one. The doctor reports that, in his opinion, the represented person is not capable of making reasonable decisions in relation to his financial affairs.
We find that the represented person remains a person for whom an administrator may be appointed.

Need for an order

The administrator reports the total value of the represented person's estate is $871 000, including the property in which he lives, personal assets of $20 000 and a diversified investment portfolio valued at $655 000.
The represented person is incapable of managing his estate and of making judgments about his financial affairs, and we therefore find that he is in need of an administrator of his estate.

Appointment of the administrator

As to who may be appointed administrator, s 68 of the GA Act provides as follows:
"(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."
An earlier application for the appointment of an administrator made in 1993 had been dismissed, as the Board found, on the medical evidence before it, that the presumption of capacity had not been displaced. In April 1993, the man executed an enduring power of attorney appointing Perpetual Trustees as donee. A further application was made to the Board in 1995 for the appointment of an administrator, and the administrator was appointed with plenary authority. The enduring power of attorney was found not to have operated effectively to protect the represented person from financial exploitation and was revoked by order of the Board when the administration order was made.

Remuneration of the administrator

Section 117 of the GA Act provides for the circumstances in which an administrator may be remunerated.
"(1)The State Administrative Tribunal may fix remuneration or a rate of remuneration and order that the same be paid to an administrator out of the estate of the represented person if the Tribunal considers that, because of the size or complexity of the estate or both, remuneration should be paid to the administrator.
(2)A guardian, and except as provided in subsection (1) an administrator, shall not receive remuneration for services rendered to the represented person.
(3)Nothing in this section
(a)prevents the Public Trustee from receiving remuneration under the Public Trustee Act 1941; or
(b)limits the operation of section 16 of this Act or section 39, 87 or 88 of the State Administrative Tribunal Act 2004.
(4)Subject to subsection (3)(a), a corporate trustee shall only be entitled to commission in respect of the capital of the estate of a represented person to the extent that the State Administrative Tribunal expressly allows."
The administrator submits that it should be remunerated for the administration of the estate of the represented person.
The Tribunal is satisfied, on the basis of the size and complexity of the estate of the represented person, that remuneration should be paid to the administrator.

Previous orders

The order dated 3 March 1995 and confirmed on 31 October 1995 required the administrator to file accounts. This was amended on 11 April 2001 to exempt the administrator from filing accounts on condition that the administrator submit a statement of account and investment portfolio at least annually in the format produced by its accounting package. From the time of exemption, there has been no examination of accounts by either the former Board or by the Public Trustee.
Following the passage of the State Administrative (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), the functions of the former Board to order or to exempt the examination of accounts submitted by administrators passed to the Public Trustee by amendment of s 80 of the GA Act (see s 443 of the State Administrative (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)). The Tribunal therefore can no longer exempt an administrator from filing accounts.
Neither the original order nor the order made on review in October 1995 and confirmed in 2000 makes any provision for remuneration of the administrator. Moreover, in respect of requirements of s 117(4), there is no express provision in respect of commission on capital.
A review of the transcript of the hearing of 3 March 1995 which was attended by the represented person, his solicitor, his parents, a representative of the Public Advocate and a representative of the administrator, makes clear that the matter of remuneration was not canvassed.
In October 1995, the order was reviewed and a submission made by the administrator regarding a number of matters which need not be dealt with here. The submission included a summary of management fees charged to the estate since June 1993. The fees charged since the appointment of the administrator by order of the Board were $6469.10 between 4 March 1995 and 17 October 1995.
On 27 November 2000, when the order was periodically reviewed, a document was before the Board from the administrator which reported on the value of the estate and income and expenses. Included in the list of expenses are management fees of $26 483.57 and out of pocket expenses of $2165.00 for the period 2 March 1998 to 20 November 2000. The order was confirmed, but again, no formal order was made for remuneration.
In a letter dated 25 May 2004 to the former Board, in response to an inquiry about fees being charged, the administrator confirmed that the fee schedules applicable to the represented person (and other clients also subject to administration orders) were "our standard published fees that were in existence at the time of our appointment. Apart from the addition of GST to the fee scale for [the represented person] all other fee scales have remained static since our appointment as administrator".
On 5 July 2004, the administrator submitted a formal application to the Board for remuneration. At a hearing on 16 July 2004, a representative of the administrator stated:
"Perpetuals have obviously been administrator for [the represented person] since 1995. The fees that we have charged to date on that account and are seeking, I guess, ratification of and fees which we're seeking approval of to charge in the future were our fees that were arranged or negotiated at the time of our appointment. We're not looking to seek to increase fees. The fees are based on an asset charge, which is currently 1.65 per cent on the first $300,000 of assets and … and 1.1 per cent on the balance.
…
To my knowledge the only change to these fees since our appointment as administrator back in 1995 was the addition of GST in 2000, when GST was introduced, so previously the fees were 1.5 and 1 per cent. They're now 1.65 and 1.1 per cent, with the 10 per cent GST added. We're not - - although our current fee schedules are somewhat higher that the fees charged on this account, we are not seeking to increase our fees to our current fees. We're just seeking for, I guess, ratification of previously charged fees and approval to charge future fees at that scale, which, as I say, was the current scale at the time of our appointment."
During the hearing, the member sought clarification about the rate of fees charged. It appears that the actual fees charged to the represented person, although based on the published rate at the time of the appointment, are at a negotiated rate.
Following that hearing, an order authorising the administrator to charge such fees in relation to the estate of the represented person "as the Board may approve from time to time" was made. No mechanism for establishing the rate of remuneration was fixed at this time by the Board.
The applicant for review submits that while the Executive Officer of the former Board may have had authority to authorise the fees payable to an administrator, the Executive Officer of the Tribunal does not have that authority. We agree with his submission that remuneration can only be fixed by an order of the Tribunal and not in the manner expressed in the order of July 2004.
Having considered the nature of the estate as it existed at that time, the range of investments and the inclusion of real property and its present value, this Tribunal considers that the size and complexity of the represented person's estate has always justified remuneration of the administrator. The issue that arises in these circumstances is the proper rate of remuneration to be charged.

The rate of future remuneration

The administrator is a trustee company whose activities, including the charging of fees, are regulated by the Trustee Companies Act 1987 (WA). The Trustee Companies Act 1987 creates a regime for the remuneration of corporate trustees. As will be seen below, the Trustee Companies Act 1987 does not provide authority or fix a rate for fees applicable to represented estates under the GA Act. The administrator seeks orders that fix the rate of remuneration at its published fees, as varied by notice from time to time. The effect will be that the rate of fees can be amended in accordance with the requirements in the Trustee Companies Act 1987.
The charges that the administrator proposes fall into the following categories:
(a)a "Portfolio Management Fee",
(b)an "Additional Service Fee" including charges for the preparation and lodgement of taxation returns, and
(c)a "Transaction Fee" and
(d)a fee on each transaction.

The rate of charges published by the administrator as at 24 January 2005 includes the following:
(a)Portfolio Management Fee
1.925% per annum on the gross value of assets up to $500 000
$1.375% per annum on the gross value of assets over $500 000 up to $1 000 000
0.825% per annum on the gross value of assets up over $1 000 000 up to $300 000 000
0.530% per annum on the gross value of assets over $300 000 000.
This fee is calculated as a percentage on capital of the estate. It is, in effect, the commission on capital referred to in s 117(4) of the GA Act.
(b)Additional Service Fee charged at $300 per hour including the preparation of tax returns,
(c)Transaction Fee $5 per transaction.
In contrast, the existing portfolio management fee charged to the represented person based on his estate's value of $675 000 (excluding his home) is 1.65% on the first $300 000 and 1.1% on the balance. The fees total $7975. A calculation, using the proposed fees, provides a total of $12 031.25.
A number of arguments were advanced during the hearing in support of the proposal to fix the rate of remuneration at the administrator's published fee. Reference was made to the Trustee Companies Act 1987, which provides the regime for the remuneration of corporate trustees. The requirement under the Trustee Companies Act 1987 that fees be published provides transparency and certainty to the question of remuneration in respect of all estates under administration or management. Furthermore, counsel submitted that the administrator is a public company which provides its services to clients on a commercial basis and is not operating for charitable purposes.
Counsel submitted further that by fixing the remuneration to the published schedule, the order will not need to be reviewed by the Tribunal if the rate changes. This will save resources both of the administrator (with costs that might in the future be passed on to the represented person) and the Tribunal, by avoiding further review hearings. In this respect, the orders proposed by the administrator can be seen to be consistent with the objectives of the Tribunal as set out in s 9 of the SAT Act. Specifically, s 9(b) provides that the Tribunal's main objectives include 'to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties … ".
In contrast, there are arguments against the proposal. The current practice of the administrator, of fixing the applicable fee at the rates applicable at the time of appointment, provides certainty about the costs of administration for the represented person, and for persons who might fall into the category of persons to whom s 68(2)(a) applies, in this case, for example, the parents of the represented person.
If the fee to be charged is fixed at the time of appointment, the administrator will need to seek a review if it intends to change that rate. Although this may create some administrative burden (and added costs), there is no procedural barrier to this review, as an administrator may apply for review of the order at any time. It can be argued that in this jurisdiction, regular oversight by review of orders provides an appropriate level of protection for a person incapable of making reasonable judgments about his or her estate. Then again, the role of the Public Trustee in examining accounts does provide an opportunity for review of administration orders by the Tribunal, on the application of the Public Trustee for leave, if there are unexplained irregularities in the administration of the estate, including remuneration of the administrator.
The represented person and his parents all supported the continuation of the appointment of the administrator and expressed their satisfaction with the way the estate has been managed by the administrator. In relation to fees, they accepted that it was appropriate that the administrator be remunerated for services, both in the past and into the future. Reference was made in the hearing to "getting what you pay for", which we understand to mean that, although the fees are considered high, the quality of the service provided by the administrator is recognised by both the represented person and his parents.
Concern was raised by the mother of the represented person in a communication to the Tribunal, dated 8 September 2006, that as the proposed fees represented a substantial increase in fees, it may be that the transaction fee could be negotiated, as the represented person had an "average of 10 transactions per month". In a later communication dated 15 September 2006, she supported the submission of the Public Trustee stating "We have read the letter from [the Public Trustee] and we are of the same opinion. …This should all be part of the Management Costs especially [as they] relate to share transactions". This reference is to the comment by the Public Trustee, in the submission referred to later in these reasons, as to the approach to be taken in relation to the transaction fee, and that the Public Trustee considers that when no external expenses are incurred by the administrator, the 'Annual Fee', which we understand to be a reference to the Portfolio Management Fee, "should be adequate recompense for the professional time and service, without an additional Transaction Fee".
The previous attitude in this jurisdiction to remuneration is revealed in an early decision of the Board. In Re E 12 SR (WA) 246, the Full Board considered the rate of remuneration of the administrator. At the hearing, the Board considered the types of remuneration which might be applied, and received information of the approach taken in other jurisdictions. Having reviewed material from Victoria, the Board agreed with the Victorian Board's requirement "that financial reports be seen by a relative or close friend in order that there is observance of what the administrator is doing". The Board also agreed, in that case, that the fee structure be "patent and predictable". The Board, in that case, accepted the submission of the administrator that incomebased and hourly charges were inappropriate. Hourly charging was seen as "fundamentally problematical in terms of its openended nature, potentially leading to "an unknown quantum of costs".
According to the reasons at the time the order was made in Re E, the capital commission was said to cover all the functions which now attract the additional service charge, which is charged at an hourly charge.
The argument was advanced in the hearing that the rates of remuneration under s 117 should be fixed in the same way as fees may be charged under the Trustee Companies Act 1987. The regime in s 18 of the Trustee Companies Act 1987, however, by its terms, provides for remuneration of the administrator for the provision of its services, other than for appointments made pursuant to the GA Act. In respect to the appointment of an administrator under the GA Act, the provisions of s 117 apply. The terms of s 117 are specific in their application and are prescriptive, and therefore the provisions of the Trustee Companies Act 1987 do not have direct application. (The provisions of the Trustee Companies Act 1987 relating to fees and charges do, however, reflect Parliament's more general intention as to the proper way for trustee companies to charge fees for services rendered.)
It appears from s 117 of the GA Act that Parliament's intention was somewhat different for matters under the GA Act. That provision requires express authorisation in each case where there is to be management of the estate of an incapable person and remuneration for that service.
Reading s 117 with s 68 of the GA Act, we conclude that there is a statutory preference for an unpaid individual to act as administrator over a corporate trustee, where such a person who is suitable for appointment exists in the life of the represented person. That statutory preference of an individual over a corporate trustee as administrator does not apply to the Public Trustee. Although the definition of "corporate trustee" in s 3 of the GA Act includes the Public Trustee, the Public Trustee is not a trustee company listed in the Schedule of the Trustee Companies Act 1987, and so the requirements of s 68(2)(a) or s 68(2)(b) of the GA Act do not apply to an appointment of the Public Trustee.
Having said that, we conclude that once the decision is made by the Tribunal that it is appropriate to appoint a private trustee company, the appointment must take into account the nature of the administrator and the services it provides, and contemplate the remuneration of that administrator, on the usual commercial terms applicable to that organisation. Consequently, great care needs to be taken to consider the financial implications to the estate in making such an appointment.
We have determined that the administrator's appointment should be confirmed and that the size and value of the estate justifies remuneration. Taking into account the arguments for and against authorising the published rate as amended from time to time in accordance with the Trustee Companies Act 1987, we conclude that it is, on balance, appropriate to fix the rate for future remuneration in those terms. We are persuaded that this provides the necessary certainty and transparency in relation to the fees to be charged to the estate.
In the past, fees charged to the represented person were not charged at the published rate but at a lower negotiated rate. It is open to the parents of the represented person to attempt to again secure a lower rate than the administrator is authorised to charge if this can be achieved through negotiation.

Past remuneration

The administrator seeks a further order authorising the retention of payments made to itself from the estate of the represented person, in the mistaken belief that it was entitled to charge for the administration, notwithstanding an absence of an express order to that effect.
The written submission of the administrator submitted for the review hearing refers to the Trustee Companies Act 1987 and states that in the usual course, matters committed to its management would attract the fees applicable under s 18 of that Act, and that it mistakenly operated on the assumption that it was entitled to charge the published fee.
The written submission of the administrator does not address the provisions of s 117, but it was conceded by counsel during the hearing that s 117 of the GA Act is the relevant provision for the determination of the remuneration of an administrator appointed under the GA Act, not s 18 of the Trustee Companies Act 1987. It was submitted by counsel that the Trustee Companies Act 1987 provides a context in which to consider the fees charged by an administrator generally acting under that Act, but that it does not determine the remuneration of an administrator appointed pursuant to the provisions of the GA Act.
It was argued that despite the lack of authority to receive the fee, the represented person has not suffered financially and is in the same position he would be in had the "appropriate order" been made.
Information regarding the fees charged by the administrator to the estate of the represented person since appointment as plenary administrator on 3 March 1995 to 30 June 2006 were provided to the Tribunal as follows:
Portfolio Management Fee  $106 489.60
Additional Service Fee  $1333.50
Taxation Fee for preparation of tax return $2673.00
Transaction Fee $5 per transaction           $10 046.06.
There remains some doubt as to the basis for the calculation of these figures. As set out in the letter dated 25 May 2004, the administrator states that it has charged fees to the represented person in line with its published schedule applicable at the time of appointment. This is not consistent with the evidence, referred to earlier, of a representative of the administrator, who advised that that it was a negotiated fee. It should be noted that the represented person had appointed the administrator to deal with his affairs pursuant to the enduring power of attorney which was executed in 1993. It may be that the fees structure which applied at that time was simply continued once the administrator was appointed by order of the Board.
The existing fee arrangement was questioned in the 16 July 2004 review hearing. It appears that the rates and charges may have varied with adjustments in the fees charged by the administrator. The transaction fee is said to have been varied from $3.67 to September 1996, $4 to June 2000 and $5 to June 2006.
The following questions arise in respect of this application:
Firstly, does the Tribunal have the power to order remuneration for services provided that were not authorised at the time of the payments?
Secondly, if s 117 does provide for authorisation of remuneration for past services, should the Tribunal make such an order, and if so, what amount by way of remuneration should be ordered to be paid out of the represented person's estate?
In respect of the first question whether the Tribunal has the power to make the order sought, s 117(3) of the GA Act provides that a corporate trustee is not entitled to remuneration unless the Tribunal expressly allows. It does not follow from this that an administrator who has not been entitled to remuneration (as there was no express provision for it) could not, at a later time, become entitled to remuneration once an order to that effect is made. The section gives the Tribunal (and formerly the Board) the discretion to order remuneration be paid to an appointed administrator. Counsel submits that there is nothing in the language of the section or in the GA Act that requires that such an order be made at the time of the appointment. Indeed, it may be the case that an administrator who seeks to be paid for services may be asked to submit a proposal for remuneration following his or her appointment and that the Tribunal will later make orders fixing the remuneration. Counsel referred to a case in his submissions regarding whether remuneration should be ordered where just this situation arose: see SC and SAS [2005] WASAT 255. In that case, an individual proposed himself as administrator and was appointed by the Tribunal. He sought remuneration and was asked to submit a proposal outlining his proposed fees. On review of the order, the appointment of the administrator was confirmed and remuneration was ordered as an annual figure.
Pursuant to s 82 of the SAT Act, a decision comes into effect immediately after it is given or at such later time as is specified (emphasis added.) This implies that orders of the Tribunal should not operate retrospectively. This is consistent with the general principle against retrospective operation of legislation. For this reason, we reject the proposal of the administrator in its written submission, dated 30 June 2006, that the "tribunal make an order altering the terms of the 2001 Administration order to confirm the validity of the fees charged by Perpetual to date and allow Perpetual to be remunerated for its future services in accordance with its published fees".
It can be argued, however, that an order setting remuneration, or a rate of remuneration for a period of an administration order which includes a period in the past, would authorise receipt of past payment and have a retrospective effect but would not be an order that is retrospective in operation.
Even if s 117 of the GA Act does not operate so as to allow for payment for services rendered in the past, s 72 of the Act gives wideranging powers to the Tribunal to make orders necessary for the proper administration of an estate. Section 72 provides:
"(1)The State Administrative Tribunal may give any direction, make any order or do any other thing provided for in Part B of Schedule 2.
(2)Without limiting this section or section 71, the State Administrative Tribunal may make any other order (whether or not of the same nature as those so provided for) that it thinks necessary or expedient for the proper administration of the estate of the represented person.
(3)Notwithstanding this section or section 71, an administrator shall not without the authority of the State Administrative Tribunal under section 71(5)
(a) make a payment or disposition of a charitable, benevolent or ex gratia nature; or
(b)make a payment in respect of a debt or demand that the represented person is not obliged by law to pay."
Subsection 2 confers a very wide power to make any order necessary or expedient for the proper administration of the estate of a represented person.
The question of ex gratia payments is dealt with separately in s 72(3) and prohibits "gifting" without authority of the Tribunal. The examination of accounts by the Public Trustee is relevant to this issue. Section 80(3) of the GA Act provides:
"The Public Trustee shall examine any accounts lodged under subsection (1) or delivered under subsection (2) and may
(a)allow them;
(b)disallow any amount paid;
(c)determine that any amount or asset has been omitted, or that any loss has occurred."
Any payment not authorised by an order such as an unauthorised gift or a payment in outside the scope of an order may be an amount disallowed by the Public Trustee on examination of the accounts. As noted above, the administrator was not subject to an order requiring accounts to be filed in respect of the estate of the represented person.
We do not consider that the unauthorised payments received by the administrator fall into the category prohibited by s 72(3). The distinguishing feature of the payments here is that they are a fee for services rendered, and not a gratuity. In commercial terms, the administrator has not benefited at the expense of the represented person, as the fees charged are directly related to the benefit of the services received by the represented person for the administration of his estate.
We conclude, on the basis of s 117 of the GA Act and the other sections referred to, that nothing in the Act precludes the Tribunal from ordering that the administrator receive payment for remuneration for past services, where those services can be quantified and where there is a good reason for doing so. In this case, because of the circumstances where no express order was sought or made but where it can safely be assumed that there was an expectation on the part of the applicant for the appointment of the administrator, the administrator, and indeed the Board itself, that remuneration would be charged by the administrator consistent with past practice, and that the work on behalf of the represented person has been performed by the administrator in the period, it is appropriate that such an order be made.
Having decided that remuneration should be ordered for the period of the order, the next issue is what amount by way of remuneration should be ordered to be paid out of the represented person's estate for the period?
We consider that, in all the circumstances, the amount of remuneration which should be fixed for the period of the administration is as follows:
(i)from 4 March 1995 to 27 November 2000 in an amount equivalent top the fees that would have been charged had the fees been charged at the rate agreed as remuneration at the time the order was made;
(ii)from 27 November 2000 to the date of this order, the administrator is authorised to charge the rate of fees equivalent to those charges as disclosed in the submission to the Guardianship and Administration Board dated 20 November 2000.

Recovery of expenses by the administrator

Provision is also made in the GA Act for the reimbursement by an administrator of expenses reasonably incurred. Section 118 provides:
"An administrator may reimburse himself for or pay out of the estate of the represented person all expenses reasonably incurred in or about the performance of his functions."

At the first hearing, there was some uncertainty as to whether the transaction fee applied to the estate on each transaction should be regarded as a recoupment of out of pocket expenses, and as such, an expense, or should more properly be seen as an element of the remuneration of the administrator. At the second hearing, this aspect was clarified, and the submission of counsel on behalf of the administrator was that the transaction fee did constitute an aspect of the remuneration.
Whether a charge imposed by an administrator is, in effect, remuneration of the administrator is a matter for the Tribunal and subject to the terms of s 117. After the decision in this matter was reserved, counsel for the administrator made known, by letter dated 8 August 2006, to the Tribunal that, contrary to his submissions in the hearing, the administrator treats the fixed rate transaction fee as an expense recovery fee. That is, it is an amount paid to the administrator by way of expenses and disbursements on transactions. A further submission filed on 15 September 2006 refers to the transaction fee in the following terms:
"Perpetual Trustees maintain that the purpose of the $5 transaction fee is to recoup out of pocket expenses rather than a form of remuneration. Given the nature of the expense referred to in our letter of 8 August 2006, such as postage, couriers, photocopying, bank charges, telecommunications charges and settlement fees, it would be impractical and administratively far more difficult to precisely cost out every out of pocket expense in relation to each transaction. Those expenses, which are not necessarily expense incurred to third parties, but operational costs in undertaking transactions, are offset by the $5 transaction fee and by the retaining of interests as specified in our letter."
Having considered the submissions of the administrator and a further submission filed on 30 August 2006 by the Public Trustee, we conclude, by majority, that the $5 transaction fee is a form of remuneration. Although we accept that a component of the fee is for the recovery of expenses of the administration, the administrator has noted the difficulty in precisely identifying out of pocket expenses in each transaction, and that the $5 transaction fee includes a component of "operational costs in undertaking transactions". In the submission of the Public Trustee, it is noted that "the transaction fee is often raised where Perpetual incur no external expenses, such as crediting the receipt of interest or dividends".
We note that whether an "expense", properly construed, is reasonably incurred by an administrator, is a matter for consideration when the accounts are examined by the Public Trustee. The concerns of the parents of the represented person are noted in relation to the transaction fee. However, this fee is proposed in the suite of charges imposed on all clients of the administrator, and in the interests of certainty and consistency, we consider that that charge should be included in the remuneration authorised.

Orders

On review of the administration order dated 16 July 2004, the order is revoked and an administration order in the following terms is substituted for it:
1.Perpetual Trustees WA Limited of Level 29 Exchange Plaza, 2 The Esplanade, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to receive remuneration for the administration of the estate:
(i)for the period March 1995 to 27 November 2000 in an amount equivalent to the fees that would have been charged had the fees been charged at the rate agreed as remuneration at the time the order was made;
(ii)from 27 November 2000 to the date of this order, the administrator is authorised to charge the rate of fees equivalent to those charged as disclosed in the submission to the Guardianship and Administration Board dated 20 November 2000.
(iii)from the date of this order at its published rate of fees as notified at 1 January 2005 and as changed from time to time from the date of this order.
3.This order to be reviewed by 15 December 2011.

I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER