EH [2008] WASAT 222

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 222
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1436/2008	Heard:	5 AUGUST 2008
Coram:	MS J TOOHEY (SENIOR MEMBER) MR J MANSVELD (MEMBER) MS S GILLETT (SENIOR SESSIONAL MEMBER)	Delivered:	23/09/08
No of pages:	9	Judgment Part:	1 of 1
Result:	The application for review is dismissed
Category:	B
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Parties:	CH and KC EH
Catchwords:	Guardianship and Administration Act 1990 (WA) Administration Whether Tribunal can retrospectively authorise a payment or disposition of a charitable, benevolent or ex gratia nature Protective intent of legislation Tribunal's authority under s 71(5) prospective only No power to authorise payments retrospectively Public Trustee's authority to relieve administrator of liability Application dismissed
Legislation:	Guardianship and Administration Act 1990 (WA), s 69, s 71, s 72, s 80, Pt 6
Case References:	Nil
Summary	Joint plenary administrators sought an amendment to the order appointing them so as to include authorisation, after the event, of distributions from their mother's estate.,On advice from their mother's bank and Centrelink, the administrators had made two distributions of $10,000 equally between themselves and their four siblings. The purpose was to take advantage of Centrelink's 'gifting allowance' and minimise the effect of her cash asset on her pension and her nursing home payments. There was no suggestion that the administrators acted other than in what they believed were their mother's best interests.,Section 72(3) of the Guardianship and Administration Act 1990 (WA) (GA Act) prohibits an administrator from making a payment or disposition of a charitable, benevolent or ex gratia nature without the authority of the Tribunal. The Tribunal accepted that the payment in this case was ex gratia in nature. The issue was whether it could authorise a payment of this kind retrospectively.,The Tribunal found that its power under s 71(5) of the GA Act to allow an administrator to make a s 72(3) type payment is prospective and does not include the power to authorise retrospectively. An administrator's relief is by way of s 80 of the GA Act which gives the Public Trustee the function of examining accounts and the authority to relieve an administrator of liability for any certified loss.,The Tribunal dismissed the application.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : EH [2008] WASAT 222 MEMBER : MS J TOOHEY (SENIOR MEMBER)

MR J MANSVELD (MEMBER)

MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD : 5 AUGUST 2008 DELIVERED : 23 SEPTEMBER 2008 FILE NO/S : GAA 1436 of 2008 BETWEEN : CH and KC

Applicants

AND

Represented Person

Catchwords:

Guardianship and Administration Act 1990 (WA) - Administration - Whether Tribunal can retrospectively authorise a payment or disposition of a charitable, benevolent or ex gratia nature - Protective intent of legislation - Tribunal's authority under s 71(5) prospective only - No power to authorise payments retrospectively - Public Trustee's authority to relieve administrator of liability - Application dismissed

(Page 2)

Legislation:

Guardianship…

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: EH [2008] WASAT 222
Case: [2008] WASAT 222
Decision Date: 23 SEPTEMBER 2008

CaseChat Overview and Summary

In the case, the applicant sought to have the Public Trustee authorise a retrospective payment from the estate of a deceased person. The deceased had left a trust fund intended for charitable, benevolent, or ex gratia purposes. The applicant argued that the Tribunal had the authority to retrospectively authorise the payment, despite the Trust deed and the relevant legislation indicating that the payment was not authorised at the time of its occurrence. The dispute was brought before the Supreme Court of Western Australia.

The central legal issue in this case was whether the Tribunal had the authority to retrospectively authorise a payment or disposition of a charitable, benevolent, or ex gratia nature. Additionally, the court needed to determine whether the Protective intent of the legislation precluded retrospective authorisation. The court also examined whether the Tribunal's authority under section 71(5) was prospective only and if the Public Trustee had the authority to relieve the administrator of liability.

The court found that the Tribunal's authority under section 71(5) of the Guardianship and Administration Act 1990 (WA) was prospective only, and therefore, could not authorise the payment retrospectively. The court further held that the protective intent of the legislation precluded retrospective authorisation of such payments. Additionally, the court found that the Public Trustee did not have the authority to relieve the administrator of liability. Consequently, the application for review was dismissed. The court's reasoning was based on the strict interpretation of the relevant legislation and the protective intent behind it. The court held that retrospective authorisation of payments would undermine the safeguards intended by the legislation.

Orders

Orders of the court

The application for review is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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