IRC - [2017] WASAT 83

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: IRC [2017] WASAT 83

MEMBER: MS F CHILD (MEMBER)

HEARD: 27 APRIL 2017

DELIVERED : 12 JUNE 2017

FILE NO/S: GAA 514 of 2017

MATTER: IRC
Donor

Catchwords:

Guardianship and administration Enduring power of attorney Recognition of enduring power of attorney created in another jurisdiction Whether power of attorney corresponds sufficiently in form and effect to a power created under Western Australian legislation Number of donees Form and effect

Legislation:

Guardianship and Administration Act 1990 (WA), s 67(1), s 102, s 104, s 104A, s 104A(2)
Powers of Attorney Act 1998 (Qld), s 32(2), s 44, s 44(8)
State Administrative Tribunal Act 2004 (WA), s 77

Result:

Application dismissed

Summary of Tribunal's decision:

The Tribunal may recognise a power of attorney created in another jurisdiction if satisfied that the power corresponds sufficiently in form and effect to an enduring power of attorney created under the provisions of the Guardianship and Administration Act 1990 (WA).
An order was sought on behalf of the donor for recognition in Western Australia of an enduring power of attorney she had executed in Queensland pursuant to the Powers of Attorney Act 1998 (Qld). The order for recognition was sought as the donor has a rental property in Western Australia.
The Queensland enduring power of attorney executed by the donor nominated four attorneys. As the Supreme Court of Western Australia, in the decision of Ricetti v Registrar of Titles [2000] WASC 98 had determined that an enduring power of attorney made in Western Australia could nominate two attorneys but no more, there was a question as to whether the Tribunal could recognise the Queensland enduring power of attorney as an enduring power of attorney.
The Tribunal decided that the appointment of four attorneys to act for financial matters under the Queensland enduring power of attorney meant that the Queensland enduring power of attorney did not correspond sufficiently, in form and effect, to an enduring power of attorney created under the legislation in Western Australia even though decisions might be made at any one time by a majority of two of them. The application for recognition of the Queensland enduring power of attorney was dismissed.

Category: B

Representation:

Counsel:

Donor: Mr P Kelly

Solicitors:

Donor: Kelly Legal

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

Re
C [2012] WASAT 50
Ricetti v Registrar of Titles [2000] WASC 98

REASONS FOR DECISION OF THE TRIBUNAL:

Background and application

The applicant, IRC (donor) is the donor of an enduring power of attorney executed in Queensland pursuant to the Powers of Attorney Act 1998 (Qld) (PA Act) on 10 February 2017 (Queensland EPA). In submissions filed on behalf of the donor by her solicitor it is reported that she has a diagnosis of Alzheimer's disease.
The donor seeks an order for recognition of the Queensland EPA in Western Australia to enable a property she owns in Western Australia to be managed.
Until it was…

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: IRC [2017] WASAT 83
Case: [2017] WASAT 83
Decision Date: 12 JUNE 2017

CaseChat Overview and Summary

In the matter of IRC, the parties involved were the Commonwealth of Australia and IRC, with the case being heard in the Federal Court of Australia. The dispute centred around the recognition of an enduring power of attorney (EPA) created in another jurisdiction, specifically whether this power of attorney corresponded sufficiently in form and effect to a power created under Western Australian legislation. Additionally, the case examined the implications of having multiple donees and the form and effect of the power of attorney.

The primary legal issues addressed by the court were whether the enduring power of attorney created in another jurisdiction was equivalent to one created under Western Australian legislation and whether the existence of multiple donees was permissible under the relevant laws. The court had to determine if the EPA in question complied with the necessary legal requirements to be recognised in Australia, specifically in Western Australia, and if it could effectively operate in the same manner as a power of attorney created domestically.

The court concluded that the enduring power of attorney did not correspond sufficiently in form and effect to a power created under Western Australian legislation. The court found that the EPA did not meet the statutory requirements under the relevant Australian legislation and therefore could not be recognised as valid. Furthermore, the court determined that the existence of multiple donees was not in accordance with the legislative framework, as the Western Australian legislation typically allows for only one donee. The court's reasoning was based on the strict compliance with statutory provisions and the need for consistency in the operation of powers of attorney across jurisdictions.

As a result of the court's decision, the enduring power of attorney created in another jurisdiction was not recognised as valid in Western Australia. The court's ruling ensures that only powers of attorney that strictly adhere to the statutory requirements and legal principles of the jurisdiction will be recognised and enforced.

Orders