ILS and SK - [2012] WASAT 203

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: ILS and SK [2012] WASAT 203

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 7 MAY 2012

DELIVERED : 11 OCTOBER 2012

FILE NO/S: GAA 458 of 2011

BETWEEN: ILS
Represented Person
AND
SK
Applicant
PUBLIC TRUSTEE
First Respondent
MS
Second Respondent

Catchwords:

Guardianship and administration - Administration - Requirement of administrators to submit accounts to Public Trustee - Public Trustee to examine accounts - Public Trustee to allow accounts, disallow any amount paid and determine that any amount or asset has been omitted or that any loss has occurred - Public Trustee to determine whether there has been a loss to or diminution of the estate - Accounts examined by Public Trustee and allowed are conclusive unless administrator acted dishonestly, in bad faith or without reasonable cause - Person aggrieved by decision of Public Trustee can apply for review of decision - Decision under review is by way of hearing de novo

Legislation:

Guardianship and Administration Act 1990 (WA), s 69(3), s 69(4), s 70, s 71(2), s 71(5), s 72(3), s 78, s 80, s 80(3), s 80(3)(a), s 80(5), s 80(6), s 80(6a), s 84
Guardianship and Administration Regulations 2005 (WA), reg 4, reg 4(3)
Interpretation Act 1984 (WA), s 48, s 55
State Administrative Tribunal Act 2004 (WA), s 3, s 17(3), s 20(1), s 26, s 27(1), s 27(2), s 29(1), s 29(3), s 31
State Administrative Tribunal Rules 2004 (WA), r 9, r 10

Result:

ILS suffered loss of $158,747.73 to her estate

Category: B

Representation:

Counsel:

Represented Person      :     N/A
Applicant:     Self-represented
First Respondent          :     Ms C Lakewood
Second Respondent      :     Self-represented

Solicitors:

Represented Person      :     N/A
Applicant:     N/A
First Respondent          :     State Solicitor's Office
Second Respondent      :     N/A

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

Baumgartner v Baumgartner (1987) 164 CLR 137
Charlton v Baber [2003] NSWSC 745
EH [2008] WASAT 222
FS [2007] WASAT 202
Muschinski v Dodds (1985) 160 CLR 583
National Australia Bank Ltd v Maher [1995] 1 VR 318
Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253
Public Trustee v Blackwood (1998) 8 Tas R 256
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Venture Management Ltd v Commissioner of State Taxation (WA) (1991) 4 WAR 283
Worsley Timber 2000 Pty Ltd (in liq) v Commissioner of State Revenue [2007] WASC 155

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

A daughter had been appointed the administrator of her mother's estate. As an administrator, she was required to submit annual accounts to the Public Trustee in respect to the management of the estate.
The principal asset in the woman's estate was a property which, at the time the administrator was first appointed, was held by the woman and her husband as joint tenants.
The woman lived in a nursing home. Her husband continued to live in the property.
The daughter purchased her father's share of…

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 ILS and SK

Details

AGLC: ILS and SK [2012] WASAT 203
Case: [2012] WASAT 203
Decision Date: 11 OCTOBER 2012

CaseChat Overview and Summary

In the matter of ILS and SK, the dispute involved the review of decisions made by the Public Trustee regarding the administration of ILS's estate. The decision was brought before the State Administrative Tribunal of Western Australia. SK, who was aggrieved by the Public Trustee's determinations of loss to ILS's estate, sought a review of these decisions under Section 80(6a) of the Guardianship and Administration Act 2000 (GA Act). The Public Trustee had previously disallowed certain amounts paid by the administrator and determined losses to the estate based on the examination of the accounts submitted.

The legal issues before the court revolved around the duties and responsibilities of the administrator in the context of the administration of ILS's estate. Specifically, the court needed to determine whether the Public Trustee's decisions regarding the disallowance of certain payments and the determination of losses were justified. The core legal question was whether the Public Trustee had acted within their statutory powers and whether the decisions were in accordance with the best interests of ILS, as mandated by Section 70 of the GA Act. Additionally, the court needed to consider whether the Public Trustee's determinations were conclusive or if there were grounds for SK to challenge them.

The Tribunal conducted a de novo review of the Public Trustee's decisions, placing itself in the position of the original decision-maker. It examined the evidence and submissions presented by SK and the Public Trustee, as well as the accounts that had been examined by the Public Trustee. The Tribunal considered the statutory framework, including Sections 80(3) and 80(6a) of the GA Act, and relevant case law that underscored the paramount concern of the person's separate and independent welfare. Ultimately, the Tribunal found that the Public Trustee had exercised their powers appropriately and that their decisions were in line with the statutory requirements and the best interests of ILS. Consequently, the Tribunal dismissed SK's application for review.

In conclusion, the Tribunal upheld the decisions of the Public Trustee regarding the disallowance of certain payments and the determination of losses to the estate of ILS. The Tribunal's decision was based on the statutory framework and the evidence presented, confirming that the Public Trustee had acted within their powers and in accordance with the best interests of ILS.

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

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

The duties and responsibilities of an administrator were encapsulated by Heenan J, when he said in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268, at [43]:… it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or illconsidered personal decisions or action, or by unscrupulous or illadvised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.An administrator must act in the best interests of the person (s 70 of the GA Act). Fundamentally, the expression 'best interests', in the context of a protective jurisdiction, reinforces the idea that the paramount concern is the overall interest of the person to whom the protection is directed: Public Trustee v Blackwood (1998) 8 Tas R 256. Put another way, the expression is primarily concerned with the person's 'separate and independent welfare', and not with the welfare of others: Charlton v Baber [2003] NSWSC 745 at [52]. This matter has a long history before the Tribunal. The application by SK is made under s 80(6a) of the GA Act and was filed with the Tribunal on 31 January 2011. Section 80(6a) of the GA Act allows a person who is aggrieved by a decision of the Public Trustee under s 80(3) of the GA Act to apply for a review of the decision by the Tribunal. Section 80(3) of the GA Act requires the Public Trustee to examine accounts lodged by an administrator and, after examining the accounts, may:•allow the accounts;•disallow any amount paid; or•determine that any amount or asset has been omitted or that any loss has occurred. Under s 80(3) of the GA Act, the Public Trustee determined a loss to the estate of ILS on 13 July 2009, 18 June 2010 and 29 December 2010. On 18 March 2011, the Tribunal referred the matter to mediation between the parties. MS, the sister of SK and the daughter of ILS, was joined as a party at that time. The mediation process concluded on 9 August 2011. Programming orders were made on 14 September 2011, 22 November 2011, 17 January 2012, 21 February 2012 and 21 March 2012. The application was finally heard on 7 May 2012. Present were:•SK;•DD from the Office of the Public Advocate;•MD, an officer of the first respondent (the Public Trustee); and•counsel for the Public Trustee. MS, the second respondent, was not represented. The evidence of SK was taken on oath. The decision was reserved. The application is made under the Tribunal's review jurisdiction, and is therefore heard de novo. The Tribunal stands in the shoes of the Public Trustee as the original decisionmaker and can take into account information that has become available since the original decision was made (s 27(1) and s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).