JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GS [2018] WASAT 72
MEMBER: MS L EDDY (MEMBER)
HEARD: 28 JUNE 2018
DELIVERED : 1 AUGUST 2018
FILE NO/S: GAA 3092 of 2017
GAA 3093 of 2017
MATTER: GS
Represented Person
Catchwords:
Guardianship and administration - Jurisdiction - Application for appointment of administrator and guardian - Application for filing and serving of records and accounts by donee of enduring power of attorney - Where applicant resident of New South Wales - Whether matter between residents of different States
Legislation:
Commonwealth of Australia Constitution Act 1900, s 75, s 76
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 13, s 13(a), s 13(b), s 13(f), s 17A, s 40, s 43, s 43(1), s 44, s 45, s 46, s 48, s 49, s 50, s 51. s 64, s 68, s 69, s 70, s 71, s 72, s 77, s 80(1), s 80(3), s 80(4), s 84, s 107(1), s 107(1)(a), s 107(1)(b), s 108(1)(a), s 109(1)(a), s 109(1)(b), s 111
Judiciary Act 1912-1920 (Cth), s 88
State Administrative Tribunal Act 2004 (WA), s 34, s 35, s 46(1)
Result:
Preliminary issue determined
Category: B
Representation:
Counsel:
| Represented Person | : | Mr M Blundell |
Solicitors:
| Represented Person | : | Solomon Brothers |
Case(s) referred to in decision(s):
Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245
Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423
CGU Insurance Limited v Blakeley & Ors [2016] HCA 2; (2016) 259 CLR 339
Crouch v Commissioner for Railways (Queensland) (1985) 159 CLR 22
Fencott & Ors v Muller & Anor [1983] HCA 12; (1983) 152 CLR 570
Love v Attorney General (NSW) (1990) 169 CLR 307
NM and SGF [2014] WASAT 103
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Re McBain; Ex parte Australian Catholic Bishops Conference & Anor [2002] HCA 16; (2002) 209 CLR 372
Re the Judiciary Act 1903-1920 and Re the Navigation Act 1912-1920 (1921) 29 CLR 257
Rochford v Dayes [1989] HCA 17
The Commonwealth of Australia & Ors v The Hospital Contribution Fund of Australia & Ors (1981) 150 CLR 49
Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 17 October 2017, MS, who is a resident of New South Wales, applied to the Tribunal under s 40 of the Guardianship and Administration Act 1990 (GA Act) seeking appointment of a guardian and administrator for his mother, GS. MS also made an application under s 109(1)(a) of the GA Act seeking an order for the production of records and accounts by his brother, RS, who was at the time appointed as one of two joint and several donees of an enduring power of attorney executed by…
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- AGLC
- GS [2018] WASAT 72
- Case
- [2018] WASAT 72
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether it had jurisdiction to hear and decide on the application for the appointment of an administrator and guardian, considering the applicant was a resident of New South Wales, and the donee of the enduring power of attorney was involved in filing and serving records and accounts. The court needed to clarify the applicability of sections 64 and 68 of the GA Act in this context and assess if the matter between residents of different states fell within the court's jurisdictional scope.
The court examined the statutory provisions of the GA Act, particularly sections 64 and 68, which outline the criteria for appointing an administrator and the suitability of candidates. It found that the appointment of an administrator and guardian was a matter of state jurisdiction, governed by the laws of the state where the person resides. The court held that the application was validly brought within the court's jurisdiction, given the applicant's residency in New South Wales and the nature of the application. The court concluded that the residency of the applicant and the involvement of the donee of the enduring power of attorney did not disqualify the application from being heard under the relevant state legislation.
The court made an order appointing the applicant as the administrator and guardian of the incapacitated person, subject to the conditions and restrictions deemed appropriate by the court. The decision underscored the importance of jurisdictional clarity in cases involving guardianship and administration, ensuring that the appropriate legal framework is applied to safeguard the interests of incapacitated individuals.
Orders
Orders of the court
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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
In relation to administration, s 64 of the GA Act provides:64.Making of administration order(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, 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.(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.(3)An appointment under subsection (1) (a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given. Section 68 of the GA Act provides who may be appointed as an administrator:68.Who may be appointed administrator(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.