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Case [2024] WASAT 88 27 August 2024

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JC [2024] WASAT 88
MEMBER:   MS F CHILD, MEMBER
HEARD:   8 MAY 2024
FINAL SUBMISSIONS FILED 1 JULY 2024

DELIVERED : 27 AUGUST 2024
FILE NO/S: GAA 771 of 2024

JC
Donor
JLC
Applicant

Catchwords:

Guardianship and Administration Act 1990 (WA) - Enduring power of attorney - Application for the production of records and accounts kept by donee - Whether Tribunal's jurisdiction enlivened - Proper interest - Whether an applicant asserting an 'expectation' in the deceased estate of the donor has a proper interest - Tribunal not satisfied applicant has a proper interest - Turns on own facts - Application dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 102, s 104(2)(a), s 107, s 107(1)(b), s 107(1)(c), s 109, s 109(1), s 109(1)(a), s 109(1)(b)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Donor	:	In Person
Applicant	:	Mr A Durand

Solicitors:

Donor	:	N/A
Applicant	:	Durand Gangemi

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

AC [2023] WASAT 38
BFO & ORS and KPW [2014] WASAT 68
BJB and GB [2008] WASAT 307
DD [2007] WASAT 192
DW and JM [2006] WASAT 366
EW [2010] WASAT 91
GM [2018] WASAT 18
ISH [2021] WASAT 169
JEB [2016] WASAT 65
JW [2024] WASAT 38
KS (2) [2008] WASAT 167
KS [2008] WASAT 29
MRH [2015] WASAT 17
Re SS; Ex Parte RA [2008] WASAT 218

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

JLC (the applicant) applied for orders pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the filing of records and accounts kept by her brother D as the donee of an enduring power of attorney (EPA) made by their mother JC. The EPA the subject of the application was made by JC on 29 January 2020[1] and appointed D, as her sole attorney (2020 EPA).
[1] The 2020 EPA was dated 29 January 2020 the acceptance was signed on 6 February 2020. It was drawn by a solicitor and witnessed by a solicitor and another person. Pursuant to s 104(2) an EPA is created once the instrument is completed in compliance with the GA Act which requires a signed acceptance. As such the 2020 EPA in favour of D was effective from that date.
JC died on 14 January 2024.
The application was filed with the Tribunal on 15 February 2024 and was the subject of two directions hearings before the Senior member and was heard by on 8 May 2024 and adjourned for any further material or submissions to be filed by 7 June 2024. Time for the filing of material was extended as there was a delay in providing a copy of the transcript to the applicant's solicitor. Final written material was filed by D on 1 July 2024. The decision on the application was thereafter reserved. These are the reasons for that decision.

Background

JC was a widow…

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: JC [2024] WASAT 88
Case: [2024] WASAT 88
Decision Date: 27 AUGUST 2024

CaseChat Overview and Summary

In the case before the court, the applicant sought an order for the production of records and accounts kept by the donee of an enduring power of attorney. The dispute arose under the Guardianship and Administration Act 1990 (WA) and centred around the jurisdiction of the Tribunal to make such an order, particularly in relation to whether the applicant had a proper interest in the matter. The applicant, seeking the records on behalf of the deceased donor, argued that the donee had breached her duties under the power of attorney and that the Tribunal had the jurisdiction to intervene. The court was tasked with determining the scope of the Tribunal's jurisdiction and whether the applicant had a proper interest in the estate.

The legal issues before the court were whether the Tribunal's jurisdiction was enlivened to order the production of records and accounts, and whether the applicant had a proper interest in the estate. The court examined the nature of the applicant's interest, focusing on whether asserting an 'expectation' in the deceased estate constituted a proper interest. The court considered the legislative framework and the criteria for establishing a proper interest, as well as the relationship between the applicant and the deceased. The applicant argued that they had a proper interest by virtue of their relationship with the deceased and their expectation of benefit from the estate.

The court held that the Tribunal's jurisdiction to order the production of records and accounts was not automatically engaged in all cases where a power of attorney existed. The court found that the application of the criteria for a proper interest was fact-specific, and in this instance, the applicant had not demonstrated a sufficient connection to the estate or a legal interest that would entitle them to the records. The court concluded that the applicant's expectation of benefit did not amount to a proper interest for the purposes of the legislation. Consequently, the court dismissed the application, finding that the Tribunal was not satisfied that the applicant had a proper interest in the matter. The decision underscores the necessity for applicants to demonstrate a clear and legally recognised interest in the estate to establish the Tribunal's jurisdiction in such cases.

Orders