EW

Case [2010] WASAT 91 30 June 2010

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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: EW [2010] WASAT 91

MEMBER: MR J MANSVELD (MEMBER)
MS F CHILD (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)

DELIVERED : 30 JUNE 2010

FILE NO/S: GAA 2111 of 2009

BETWEEN: EW
Represented person

Catchwords:

Enduring power of attorney - Tribunal has a general supervisory jurisdiction over the conduct of attorneys - Jurisdiction extends to deceased and capable donors - 'In connection with the power' of wide import - Discretion to order that an audit be conducted of the attorney's transactions - Discretion to be exercised when satisfied something requires an inquiry - The scope of the inquiry is to be determined by the expected utility to be derived from it - Order made for an audit to be conducted

Legislation:

Bankruptcy Act 1966, s 179
Corporation Act 2001
Guardianship and Administration Act 1990 (WA), s 107, s 107(1)(b), s 107(1)(c), s 109, s 109(1)(a), s 109(1)(b),
Telecommunications (Interception and Access) Act 1979 (Cth), s 5

Result:

The application is successful

Category: B

Representation:

Counsel:

Represented person : Mr R Biddulph

Solicitors:

Represented person : Biddulph & Turley

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

Butler v St John of God Health Care Inc [2008] WASCA 174
Claremont Petroleum NL v Cummings and Another No SAG 44 of 1991 (1992) 110 ALR 239
Hall v Poolman [2009] NSWCA 64
KS [2008] WASAT 29
Leslie v Hennessy [2001] FCA 371
Macchia v Nilant [2001] FCA 7
McCully v Whangamata Marina Society Inc and Anor [2006] NZCA 209 (11 August 2006)
Onus v Alcoa Australia [1981] HCA 50; (1981) 149 CLR 27
Re Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262
Re SS; Ex parte RA [2008] WASAT 218
Taciak v Commissioner of Australian Federal Police (1995) 131 ALR 319
Turner v Official Trustee in Bankruptcy (unreported [1999] FCA 1817, 27 November 1998)

REASONS FOR DECISION OF THE TRIBUNAL:

In 1999, a woman gave her granddaughter authority to operate her bank account. In 2004, she made an enduring power of attorney appointing her granddaughter as her attorney. The enduring power of attorney was not subject to any conditions or restrictions.
The woman died in 2008 and her estate was distributed according to her will: 50% to her daughter, and the balance equally between her three sons.
One of her sons later questioned the value of the woman's estate and applied to the Tribunal for an audit of the dealings and transactions undertaken by the granddaughter as the woman's attorney.
The son said that there were numerous transactions on the bank account that were not for the woman and alleged that the granddaughter had made most of the transactions for her own benefit.
The granddaughter said that the transactions she made on the woman's bank account were made using the bank authority and that the enduring power of attorney was used only to sell the woman's property and to release funds to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading EW

Details

AGLC: EW [2010] WASAT 91
Case: [2010] WASAT 91
Decision Date: 30 JUNE 2010

CaseChat Overview and Summary

The case of EW involved a dispute over the administration of an enduring power of attorney. The applicant sought an audit of the transactions of the attorney who had been appointed under the power of attorney. The matter was heard in the Supreme Court of South Australia. The legal issues before the court included whether the court had jurisdiction to order an audit of the attorney's transactions and if so, whether such an order should be made in this case.

The court held that it had jurisdiction to order an audit of the attorney's transactions. This jurisdiction extended to cases involving both deceased and capable donors. The court found that the phrase 'in connection with the power' was of wide import and could encompass the attorney's conduct in administering the power of attorney. The court further determined that its discretion to order an audit should be exercised when it was satisfied that something required an inquiry. The scope of the inquiry was to be determined by the expected utility that would be derived from it. Given the nature of the dispute and the concerns raised, the court concluded that an audit would be beneficial and made an order for an audit to be conducted.

In summary, the court exercised its general supervisory jurisdiction over the conduct of attorneys under an enduring power of attorney and found that it had the authority to order an audit of the attorney's transactions. The court considered the utility of such an inquiry and concluded that it was appropriate to order an audit in this case to address the concerns raised by the applicant.

Orders