JKJ - [2025] WASAT 6 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JKJ [2025] WASAT 6
MEMBER:   MS F CHILD, MEMBER
HEARD:   5 NOVEMBER AND 26 NOVEMBER 2024
FINAL SUBMISSIONS 10 DECEMBER 2024

DELIVERED : 20 JANUARY 2025
FILE NO/S: GAA 5856 of 2024
GAA 5258 of 2023
JKJ
Represented Person
PUBLIC TRUSTEE
Applicant

Catchwords:

Guardianship and administration - Represented person executor and trustee of a deceased estate - Undistributed part of the estate of low value - Whether authority should be given to Public Trustee pursuant to Pt B paragraph (h) of Sch 2 of the Guardianship and Administration Act 1990 (WA) to exercise the power of the represented person as trustee of the deceased estate to seek and receive information from solicitors formerly acting for the represented person as trustee and to complete the distribution of the deceased estate according to the will

Legislation:

Administration Act 1903 (WA), s 43
Guardianship and Administration Act 1990 (WA), s 41(1)(a), s 41(1)(c), s 64, s 65, s 69, s 70, s 71(2), s 72(1), s 74, s 74(3), Pt 6, Sch 2, Pt B
Non-contentious Probate Rules 1967 (WA), r 37
Public Trustee Act 1941 (WA), s 13, s 13(1)
State Administrative Tribunal Act 2004 (WA), s 35, s 35(1), s 60
Superannuation Industry (Supervision) Act 1993 (Cth)
Trustees Act 1962 (WA), s 77, s 77(2)(d)

Result:

Directions given

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	Mr G Cummins

Solicitors:

Represented Person	:	N/A
Applicant	:	On behalf of Public Trustee

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

Blenkinsop v Herbert [2017] WASCA 87
KWD [2011] WASAT 4
Public Trustee of Western Australia and VV [2012] WASAT 170
Re Londonderry's Settlement [1965] Ch 918
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
SQ and IQ [2012] WASAT 165

REASONS FOR DECISION OF THE TRIBUNAL:

Application

By letter dated 11 July 2024, the Public Trustee sought directions pursuant to s 74 of the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of the estate of JKJ (the represented person) for whom the Public Trustee is appointed the plenary administrator of his estate.
The directions sought relate to the represented person's role as the executor and trustee named in the will of the represented person's late aunt RJC (the deceased estate).

Background

The Public Trustee was appointed the plenary administrator of the represented person's estate pursuant to an order of the Tribunal made on 9 January 2024.
That order followed an application by a treating team of a hospital where the represented person was then a patient. I was satisfied on the medical and other health professional's evidence that the represented person lacked capacity to make reasonable judgments in respect of his person and his estate. I was also satisfied that in the circumstances he was in need of an administrator of his estate and a guardian.
As noted, the Public Trustee was appointed the plenary administrator of the represented person's estate. There being no one else who proposed their appointment, the Public Advocate was appointed the represented person's limited guardian. The review of those orders is due in January 2026.
In May 2024 the legal officer for the Public Trustee sought orders pursuant to s 35(1) of the State Administrative Tribunal Act 2004 (SAT Act) (s 35 orders) for the production of documents relating to the deceased estate of RJC from Avon Legal, the solicitors who had formerly acted for the represented person in his capacity as the executor and trustee of the deceased estate.
The request for the s 35 orders was made as the Public Trustee reported that despite requests between January 2024 and May 2024 to Avon Legal, the Public Trustee had been unable to obtain information necessary to assess whether the represented person had received his entitlements as a beneficiary of the deceased estate.
The Public Trustee had also sought information as to whether the deceased estate had been fully administered and if not, what remained to be administered and for an up-to-date record of transactions made on the deceased estate. It was submitted that this information would allow the Public Trustee to consider and if appropriate to make an application for Letters of Administration de bonis non to the Supreme Court to complete the administration of the deceased estate.[1]
[1] The Public Trustee contends that the Public Trustee is the appropriate applicant to make an application for Letters of Administration de bonis non to complete the administration of the estate of RJC both pursuant to his appointment as administrator of the represented person's estate and pursuant to s 13 of the Public Trustee Act 1941 (WA). Such an application requires an affidavit by the applicant dealing with the deceased estate and what remains to be completed in its administration. Section 13(1) of the Public Trustee Act (1941) (WA) provides: In any case in which probate or administration of the estate of any deceased person has been granted to any person, the Public Trustee, or any person interested, may apply to the Court for an order for the removal of such executor or administrator, and for an order to administer by the Public Trustee the land or goods or estate left unadministered.
It was argued that the s 35 orders were required to enable the Public Trustee to consider the deceased estate and to determine if it was appropriate to make the application to the Court.
The material filed by the Public Trustee includes an exchange of correspondence between the Public Trustee's trust manager and legal officer for the Public Trustee and Avon Legal.[2]
[2] The documents filed with the application include copies of the will of RJC, the grant of probate of the will and the statement of the assets and liabilities in the deceased estate as submitted for probate.
According to that correspondence, Avon Legal became aware of the appointment of the Public Trustee as the plenary administrator of the estate of the represented person following a letter from the Public Trustee's trust manager dated 11 January 2024[3] which requested a copy of the represented person's will. An email dated 19 January 2024 from Ms Fifield (the solicitor at Avon Legal with the carriage of the matter) to the trust manager confirms that Avon Legal were acting for the represented person in his capacity as executor of the estate of the deceased estate.
[3] The email from Avon Legal refers to a s 65 order made by the Tribunal. An order pursuant to s 65 of the GA Act appointing the Public Trustee was made on 23 November 2023 authorising the Public Trustee to exercise authority of a plenary administrator to secure and protect the estate of the represented person until the application for the appointment of an administrator could be determined due to allegations made by the applicant hospital social worker of financial abuse of the represented person.
A letter dated 28 March 2024 from the legal officer for the Public Trustee to Avon Legal queries whether the represented person had received his full entitlement as a beneficiary of the deceased estate and sought the information about the deceased estate referred to above.
By email dated 20 May 2024, Ms Fifield confirms that the firm acted for the represented person in his capacity as executor of his late aunt's estate and provides a copy of the grant of probate and the will of RJC. In respect of the questions asked by the Public Trustee's solicitor Ms Fifield advised that:[4]
1)we are holding a small amount of funds for final distribution and will require the instructions of the executor to complete this;
[4] In contrast to the position taken by Avon Legal, the Public Trustee argued in a written submission in support of the s 35 orders filed on 11 July 2024 that the represented person has as a beneficiary of the deceased estate 'a right to an accounting pursuant to rule 37 of the Non-contentious Probate Rules 1967 (WA) and section 43 of the Administration Act 1903 (WA)' and 'beneficiaries of a deceased estate have a right to trust documents' citing for instance Re Londonderry's Settlement [1965] Ch 918 at 938.
In respect of whether the estate had been fully administered the response was:
2)this question is for the executor to ask and we will require instructions from the executor to act on this;
In respect of the transactions on the deceased estate:
3)we cannot provide this information to the beneficiaries without instructions from the executor.
Following receipt of this correspondence, the Public Trustee made the application for the s 35 orders to require Avon Legal to produce the requested documentation to the Public Trustee.

The deceased estate

The documents filed in support of the application by the Public Trustee include the last will of RJC dated 28 March 2012, (the will). By clause 3 of the will the represented person is named as the executor and trustee, and FCS, a niece of the deceased, is appointed as substitute executor if the represented person is unable or unwilling to act. (The interpretation clause in the will refers to the executor being 'unable to act' to include a loss of legal capacity). By clause 4 of the will the residue of the deceased estate is gifted to 'my nieces and nephews as related by blood, as survive me and if more than one in equal shares'.
RJC died on 27 February 2021. The represented person through his then solicitors, Avon Legal received a grant of probate of the will on 31 May 2021. According to the statement submitted for the grant of probate, the assets in the deceased estate were approximately $1.8 million. The assets included a share portfolio, an annuity, a refundable accommodation deposit and a property which, according to the Public Trustee was sold for $1.25 million on 1 September 2021. The Public Trustee established through a search of the represented person's bank records that he received two interim distributions from the deceased estate totalling $550,000 prior to the Public Trustee's appointment.

Section 35 of the SAT Act

Section 35 of the SAT Act provides that on the application of a party to a proceeding, the Tribunal may make the order sought for the production of documents by third parties. In my view this provision contemplates that an order pursuant to s 35 of the SAT Act be made in the course of a proceeding before the Tribunal. As there was, at that time, no substantive proceeding[5] before the Tribunal in respect of the represented person there was in my view no power to make the s 35 order.
[5] The Tribunal had made orders on the application on matter number GAA 5258 of 2023 appointing the Public Trustee as plenary administrator and the Public Advocate as his guardian which 'disposed of the matter raised in the application first brought' by the hospital treating team so that proceeding was then concluded see KWD [2011]WASAT 4 [9].
Following information to that effect being provided, the Public Trustee then brought the present application for directions pursuant to s 74 of the GA Act.
The following directions were sought by the Public Trustee:
…
(a)what action, if any, it should take to gather information and documentation about [the represented person's] interest in the estate of [RJC];
(b)what action, if any, it should take to have [the represented person's] remaining entitlements paid from [RJC's] estate to [the represented person] and
(c)such other directions as the Tribunal may think fit;
in circumstances where [the represented person]is one of the universal beneficiaries of [RJCs] estate.
To be able to comply with the directions sought, the Public Trustee requested the following orders be made by the Tribunal:
Pursuant to s 35(1) of the State Administrative Tribunal Act2004 (WA) within 14 days of the date of the request by the Public Trustee, [Avon Legal] … is to produce to the Public Trustee and file with the Tribunal, all documentation and information relating to the estate of the late [RJC] requested by the Public Trustee, including but not limited to:
(i)documentation and information relating to the unadministered portion of the estate of [RJC];
(ii)documentation and information relating to the assets and liabilities of the estate of [RJC];
(iii)documentation and information relating to distributions made by the estate of [RJC] to date;
(iv)documentation and information relating to the beneficiaries of the estate of [RJC] (that is, their names and how many residuary beneficiaries there are); and
(v)an up-to-date record of transactions in relation to the estate of [RJC].
I made the s 35 orders in those terms on 29 July 2024, being satisfied that it was in the best interests of the represented person that the Public Trustee as the plenary administrator of his estate have access to the information sought. Order 2 of the s 35 orders made provides the following:
2.Prior to the date for production specified in the previous order Avon Legal … may apply to the Tribunal to discharge or vary that order or to limit access to any document or material required to be produced by that order.
Due to an administrative error, the s 35 orders did not issue immediately to Avon Legal and so a further order was made on 14 August 2024 which extended the time for compliance with the s 35 orders to 30 August 2024.
A letter to the Tribunal dated 23 August 2024 from Avon Legal advised that Ms Fifield was overseas. On her instructions a review of the orders made was requested. The Tribunal was advised that Ms Fifield would appear to apply for discharge of the s 35 orders or in the alternative, intended making an application to vary those orders, and requested that time for compliance be extended and the matter be set down for a directions hearing not before 23 September 2024.[6]
[6] No application to discharge or vary the s 35 orders had been filed prior to the direction hearing. Ms Fifield confirmed this in the directions hearing but made oral submissions.
Due to a period of my leave, the matter was not set down for directions until 5 November 2024 at which time Ms Fifield and the legal officer for the Public Trustee, Mr Cummins, both appeared.

The directions hearing

At the directions hearing Ms Fifield confirmed that she acted for the represented person in his capacity as the trustee[7] of the deceased estate and explained that she had last had instructions from him at the end of 2023[8] but had not sought instructions from him since then.[9]
[7] ts 3, 5 November 2024.
[8] ts 4, 5 November 2024.
[9] ts 3, 5 November 2024.
She confirmed in her submission that in the absence of instructions from the executor she could not disclose information relating to the deceased estate to the Public Trustee.
Ms Fifield said that she had provided the requested information regarding the represented person's entitlements as a beneficiary to the Public Trustee. In respect of the number and names of the beneficiaries provided for in the will it appeared that she had mistakenly believed that this information was contained in the will but when this was corrected said she would have this information provided to the Public Trustee.[10]
[10] ts 15, 5 November 2024.
Regarding whether the deceased estate had been fully administered and if not, what remained to be administered and the provision of records of transactions on the deceased estate she confirmed that, in her submission, that these were matters reserved to the trustee (trustee information) and required her to obtain instructions from the trustee.[11] She submitted that the Public Trustee, as the administrator of the represented person's personal estate, did not have authority to act in his capacity as trustee of the deceased estate.[12]
[11] ts 15, 5 November 2024.
[12] ts 5, 5 November 2024.
Ms Fifield acknowledged that there was a substitute executor named in the will who was alive. Ms Fifield acknowledged there had been delay in dealing with the matter[13] and said it had been her intention to make an application to the Supreme Court under the Administration Act 1903 (WA).[14] and approach the substitute executor to step in if she was willing and to finalise the deceased estate, or to seek an opinion from independent counsel about her obligations but had not done these things.[15] She said she initially intended to satisfy herself that the represented person could not instruct her when she became aware of his whereabouts in February 2024, but had not made time to go and see him.[16]
[13] ts 6, 5 November 2024.
[14] ts 6, 5 November 2024.
[15] ts 6, 7, 14, 5 November 2024.
[16] ts 4, 5 November 2024.
Ms Fifield said she had explained her position in relation to the trustee information to solicitors for the Public Trustee and asserted that the Public Trustee should obtain independent counsel's advice to settle the question. She said she had another matter of a similar nature (in the Tribunal)[17] and that the matter was not an isolated case.[18]
[17] ts 9, 5 November 2024.
[18] ts 21, 5 November 2024.
Ms Fifield said the deceased estate was an extensive one but confirmed during the directions hearing in response to my question that the remaining funds held totalled $20,467.37.[19] Notably, this information had not previously been provided to the Public Trustee.
[19] ts 13, 5 November 2024.
Ms Fifield said that Avon Legal had been waiting to see if any tax was payable for the 2023 year but confirmed that the last payment had been made to the Australian Taxation Office in August 2022 and there did not seem to be any (tax liability) in 2023 but she would need to follow this up with the accountant.[20]
[20] ts 12, 5 November 2024.
Mr Cummins for the Public Trustee said that the Public Trustee had been advised by Ms Fifield that some funds remained in the deceased estate but in the context of a large estate of over a million dollars, a 'small amount' could have meant a significant sum. In his submission the necessary information had not previously been provided to the Public Trustee; no firm figures of the remaining funds held, or the number of beneficiaries in the named class of beneficiaries, both of which were relevant to determining the represented person's own entitlements.
He argued that the Public Trustee, as the administrator of the estate of the represented person, was seeking information to which the represented person was entitled, to get a clear understanding of what remained in the estate and whether, as the administrator of the represented person's estate the Public Trustee needed to do anything further.
Mr Cummins submitted said that if a (deceased) estate goes unadministered that an executor could potentially be liable.[21]
[21] ts 11, 5 November 2024.
He submitted that the Public Trustee would have to take a holistic view and determine whether, acting in the represented person's best interests (as the administrator of his personal estate) to then to seek to fulfil the role as trustee or the executor to finalise the administration of the deceased estate and distribute the remaining funds. However, the first step was obtaining information as to what was left in the estate to inform that position, and this included the names of the beneficiaries to whom any distribution had been made.
Because of the concerns expressed by Ms Fifield, that she was unable to provide the trustee information to the Public Trustee, I proposed an order be made under the Schedule to the GA Act to authorise the Public Trustee to exercise the powers of the represented person as trustee of the deceased estate. Such an order could empower the Public Trustee, to exercise the trustee's power to seek and obtain the trustee information which in Ms Fifield's submission, could only be provided on the instructions of the trustee. Mr Cummins supported such an order being made. Ms Fifield expressed her concerns as to whether the jurisdiction of the Tribunal could 'cross over to [deceased] estate matters'[22] and questioned whether the order of the Tribunal could grant that authority because of the various provisions for the substitution of trustees which were not within the jurisdiction of the Tribunal.[23]
[22] ts 6, 5 November 2024.
[23] ts 6, 5 November 2024.

She questioned whether the Tribunal had the jurisdiction to authorise her to deal with something that came under the jurisdiction of the Supreme Court.[24] She raised concern as to whether anyone could exercise the powers of a trustee other than a substitute trustee.[25]
[24] ts 19, 5 November 2024.
[25] ts 20, 5 November 2024.
She acknowledged that when the represented person lost capacity she could not take instructions from him but said that the firm was midway through the process of administering the estate when this occurred.[26]
[26] ts 19, 5 November 2024.
She agreed that she could have considered other options one of which would have been to approach the substitute executor, or to seek directions from the Court.[27]
[27] ts 14, 5 November 2024.
Ms Fifield confirmed that if an order under the Schedule of the GA Act clarified the questions she had regarding the Tribunal's jurisdiction to make such an order and that the Public Trustee as plenary administrator had the authority to obtain the trustee information she would comply with any order made.[28]
[28] ts 19, 5 November 2024.
Mr Cummins then raised the question of whether the exercise by the Public Trustee of the power of the represented person as trustee of the deceased estate, could extend to acting as the trustee to finalise the deceased estate given the amount of funds remaining.[29] Ms Fifield questioned whether the provision could extend to this referring to the statutory provisions for the replacement of trustees.[30]
[29] ts 21, 5 November 2024.
[30] The provisions of the Trustees Act 1962 (WA) provide for replacement of trustees see for example s 77 New trustees Court may appoint. In particular s 77(2)(d) where a trustee is of unsound mind. These provisions were considered in SQ and IQ [2012] WASAT 165 (SQ) at [17] - [23] which took a more restrictive view of the Tribunal's jurisdiction to make orders under paragraph (h) of the Schedule.
I was satisfied that the making of such an order was within the jurisdiction of the Tribunal to empower the Public Trustee to exercise the represented person's powers as trustee in respect of the deceased estate, at least to obtain the trustee information. Having regard to all the circumstances I considered that it was in the best interests of the represented person that the order be made and announced my intention to make the order pursuant to the Schedule.
The application was listed for a final hearing on 26 November 2024 to allow for service of the notice of the hearing of the Public Trustee's application in compliance with the GA Act.[31] A draft of the orders proposed were to be submitted by the Public Trustee and copied to Avon Legal prior to the final hearing.
[31] Section 74(3) of the GA Act provides that there must be notice of an application made under s 74 to the persons referred to in s 41(1)(a) and (c), represented person, the Public Advocate and the Public Trustee.
Ms Fifield had indicated that she would receive a copy of the proposed draft orders but did not intend to make any further submissions or to attend any further hearing and would comply with any orders made.[32]

Final hearing

[32] ts 28, 5 November 2024.

At the final hearing on 26 November 2024, the legal officer for the Public Trustee, Mr Cummins confirmed that the initial intention of the Public Trustee had been to gather information about the deceased estate to get an understanding of whether the represented person had received the appropriate distribution from the deceased estate as a beneficiary and then to look at matters to avoid any potential issues of his failing to complete his role as executor. The Public Trustee would then consider whether it was appropriate to obtain letters of administration de bonis non to complete the administration.
Mr Cummins said that the Public Trustee had made the assumption that there were four beneficiaries based on the distributions the represented person had received into his bank accounts, against the information available from the statement of assets and the sale price of the deceased's main residence, but this information and information about the funds remaining in the estate were not provided by Avon Legal prior to the directions hearing.
In support of the s 35 orders being made he advised that the Public Trustee having the names of the beneficiaries named in the will was necessary so that the final distribution could be made to them. The Public Trustee also needed information regarding the status of the taxation return of the deceased estate to enable the Public Trustee to determine if the administration had been completed and what next steps, if any would be necessary.
In Mr Cummins' submission if 'there is administration to be completed' in the deceased estate, … the Public Trustee would need Letters of Administration.[33] However, if there were only funds to be distributed, a trustee could do this. Without the trustee information and the documentation sought, the Public Trustee could not be certain of the position.
[33] ts 15, 26 November 2024.
Mr Cummins noted that from what was understood from Ms Fifield's statements in the directions hearing that the 2023 tax return of the deceased estate had not been completed but it appeared she was of the view that there might not be any tax to pay. He questioned whether, if there was no taxable event in 2022/2023, there would be any necessity even for a nil return. In that circumstance the function of the trusteeship would be to complete the final distribution of the deceased estate.[34]
[34] ts 4, 26 November 2024.
In respect of directions sought, Mr Cummins submitted that the language of paragraph (h) of the Schedule to 'authorise the administrator to exercise the power or give the consent in such a manner as the Tribunal may direct' (emphasis added) indicated that the power is available, but it had to be under the specific direction of the Tribunal as to what can be done by the administrator so authorised.
At the conclusion of the hearing, I ordered that a further draft of proposed orders be filed with the Tribunal and copied to Avon Legal by 3 December 2024, and that any further written submissions by the parties on the proposed orders be filed no later than 10 December 2024. The application would then be determined on the documents pursuant to s 60 of the SAT Act. I made orders to that effect.[35]
[35] Section 60 of the SAT Act provides that the Tribunal may conduct all or part of a proceeding on the documents.
Having received the further draft of the orders I made the orders proposed by the Public Trustee with some minor changes to the wording and order of the terms of the orders for the purposes of clarity regarding the role of the Public Trustee pursuant to the Schedule. My reasons for making the orders follow.

Legislation

Part 6 of the GA Act refers to estate administration and provides for the making of administration orders by the Tribunal where the necessary statutory tests are met.[36] The provisions in Pt 6 include for example the authority of an administrator,[37] the obligation of the administrator to act in the best interests of the represented person[38] and that administrators may apply for directions.[39]
[36] GA Act, s 64.
[37] GA Act, s 69.
[38] GA Act, s 70.
[39] GA Act, s 74.
Section 74 of the GA Act provides:
(1)Any administrator may apply to the State Administrative Tribunal for directions concerning any property forming part of the estate of the represented person, or the management or administration of such property, or the performance of any function, and the Tribunal may on any such application give to the administrator any direction not inconsistent with this Act.
(2)An administrator shall comply with any direction given to him under subsection (1)[.]
Section 71(2) of the GA Act provides that where plenary functions are vested in an administrator, the administrator may perform any function that the represented person himself could perform in relation to the estate of the represented person.
Section 72(1) of the GA Act provides that the Tribunal may give any direction, make any order or do any other thing provided for in Pt B of Sch 2.
Section 72(2) states:
Without limiting this section or section 71, the State Administrative Tribunal may make any other order (whether or not of the same nature as those so provided for) that it thinks necessary or expedient for the proper administration of the estate of the represented person.
Part B of Sch 2, paragraph (h) provides:
where a power is vested in a represented person in the character of a trustee or guardian, or the consent of the represented person to the exercise of a power is necessary in a similar character or as a check upon the undue exercise of the power, the State Administrative Tribunal may, upon the application of the administrator or any person interested in the exercise of the power or the giving of the consent, authorise the administrator to exercise the power or give the consent in such a manner as the Tribunal may direct.
Issues raised in the directions hearing by Ms Fifield concerned whether the jurisdiction of the Tribunal allowed the order to be made which might be said to move beyond the management of the represented person's personal estate and into the role of the represented person as trustee of the deceased estate.

Section 72(1) of the GA Act - does the Tribunal have the power to authorise the Public Trustee to exercise the powers of a trustee

It is clear from the provisions in Pt 6 of the GA Act that they refer to authority of the administrator and the exercise of functions in respect of the estate of the represented person, that is, the personal estate of the represented person. However, paragraph (h) of Pt B of Sch 2, of the GA Act appears to enlarge on this.
In Public Trustee of Western Australia and VV [2012] WASAT 170[40] (Public Trustee and VV) the Public Trustee sought amendment to an order which had appointed him plenary administrator of an estate to specify that the Public Trustee had authority to exercise the powers of the represented person in respect of a self-managed superannuation fund of which the represented person was the trustee and only member. The order sought was to ensure compliance with regulatory requirements to maintain the self-managed superannuation fund's status for taxation purposes.[41]
[40] Justice JA Chaney, President, Mr Allen, Senior Member and Ms S Gillett, Member.
[41] As required by provisions of the Superannuation Industry (Supervision) Act 1993 (Cth).
In that case there was consideration by the Full Tribunal of whether the exercise of the jurisdiction to give the direction under paragraph (h) of the Schedule was still open (given the terms of the particular trust deed which provided that the trustee held office only until he 'becomes incapable of performing his duties[42] and a second question of whether the authority sought by the Public Trustee was strictly necessary because of operation of various provisions of the trust deed and the relevant Commonwealth legislation.
[42] Whether the jurisdiction was open to give the direction arose as 'read strictly' upon the incapacity of VV (which must be said to have arisen no later than the making of the administration order his office as trustee of the fund had terminated). This meant that by the time the application for the authority under the schedule was made that no power was exercisable by VV as trustee of the fund [26]. It was argued for the Public Trustee that the clause should be read to encompass a situation where the power is vested in the represented person through his personal representative. The Tribunal noted that '[a]nother way in which paragraph (h) might be construed, is to read the words, 'is vested' so as to encompass powers which were vested in the represented person at, or immediately before, the time an administration order is made' [28].
In deciding this question, the Full Tribunal determined that the power to make the order under the Schedule was available despite the literal meaning of the words in the provision and preferred that a wide interpretation be given to paragraph (h); a construction which it held would promote the purpose or objects of the GA Act. The Tribunal said:[43]
29.The provisions of the GA Act are designed to serve the best interests of those who lack capacity to manage their own affairs or to look after their own health and safety. The legislation is designed to conserve the property and financial resources of a disabled person. - see Re The Full Board of The Guardianship and Administration Board [2003] WASCA 268. It is, in that sense, beneficial legislation. A construction of a provision of the Act which would promote the purpose or object of the Act is to be preferred to a construction that would not promote that purpose or object - Interpretation Act 1984 (WA), s 18. The interpretation of paragraph (h) based on a strict reading, as explained above, would limit the scope for directions under that paragraph very significantly. Authority could only be given where powers of a trustee vested in a represented person survive the incapacity of the represented person. It is only after the Tribunal declares a person unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to his estate, that that person becomes a 'represented person' - see GA Act, s 64. There is no reason to assume that the legislature intended to limit the power to grant authority or make directions only to those situations where incapacity did not terminate the represented person's powers under a trust. It may be, of course, that a trust deed contains provisions which make it unnecessary for the Tribunal to exercise its power to give directions under paragraph (h). For example, a trust deed might provide that co-trustees exercise powers in place of the incapable trustee. Each case must, of course, be considered having regard to its own circumstances.
30We consider, however, that paragraph (h) should be construed more widely than a strict literal reading. We consider that the power of the Tribunal to give authority to an administrator under paragraph (h) arises where there is a power vested in the represented person in the character of a trustee or a guardian at, or immediately before, the appointment of an administrator for the represented person, or where, as here, the power is vested in the represented person through his legal personal representative.
[43] Public Trustee and VV [29] - [30].
The second question considered in Public Trustee and VV, whether the authority was necessary,[44] arose as the Public Trustee had become the trustee of the fund by operation of provisions of the trust deed, as the legal personal representative of the represented person, on his appointment as administrator. However, the Public Trustee expressed concern that the position was uncertain. The uncertainty was said to arise from the proposition that 'the Public Trustee can only act as trustee of the fund in its capacity as (VV's) administrator and therefore his legal representative, provided that the Public Trustee has sufficient powers to act as trustee under the terms of its appointment'. The submission of the Public Trustee was that:[45]
… [Section] 69 of the [GA Act] gives authority to an administrator to perform functions 'in respect of the estate of the represented person'. Property which a represented person holds on trust does not form part of the represented person's estate. It follows that in order to deal with trust assets, it is appropriate, if not necessary, to seek authority from the Tribunal pursuant to s 72 of the GA Act.
[44] There was a question whether an authority was strictly required as the Public Trustee was the personal representative and an Australian Taxation Office interpretive decision referred to as ATOID 2010/139 included an administrator appointed by a State Tribunal in the definition.
[45] Public Trustee and VV [22].
The Full Tribunal found that it was in the interests of the represented person that the Public Trustee exercise the powers of trustee of the fund so as to preserve its status as a self-managed superannuation fund. As to the making of the orders the Tribunal said:[46]
… Whether or not it is strictly necessary, it is prudent that the Public Trustee satisfies itself that it will not exceed its authority given to it by its appointment as plenary administrator by seeking express authority of the Tribunal to act as trustee of the fund. We consider that, in those circumstances, it is appropriate that the orders appointing the Public Trustee as plenary administrator be amended so as to specify that authority under paragraph (h) of Pt B of Sch 2 of the GA Act.
[46] Public Trustee and VV [31].
Although in the present case the represented person's office as trustee of the deceased estate is not terminated by the declaration of his incapacity and his replacement by a substitute or his personal representative is not automatic[47] as occurred in Public Trustee and VV, I consider this case confirms the availability of the power of the Tribunal to make such an order and illustrates the scope of the provision.
[47] But requires an application to the Supreme Court.
As can be seen from the analysis in Public Trustee and VV regarding the proper construction of paragraph (h) and when it is operative and the words 'in order to deal with trust assets' there was no doubt expressed by the Full Tribunal as to the jurisdiction of the Tribunal to make the order, to essentially expand the authority of the plenary administrator to enable the administrator to exercise the power vested in the represented person as trustee.
The decision of the Full Tribunal contrasts with another decision published around the same time by a single member: SQ.[48]This case also dealt with an application for authority under paragraph (h) where the proposed represented person was the trustee, appointor and guardian of a discretionary family trust. In that case the member, took a more restrictive view as to the Tribunal's jurisdiction to make the order sought than she acknowledged had previously been exercised by the Tribunal in similar cases.[49] In brief, the member having regard to what were described as the 'limiting words of the estate of the represented person' which are used throughout Pt 6 of the GA Act considered that the administrator's authority was in respect of the estate of the represented person only and 'that s 72(1) of the GA Act should not be understood as extending that authority beyond those limits'.[50]
[48] Ms H Leslie, Senior Sessional Member.
[49] SQ [49].
[50] SQ [38] '… from a consideration of the language of Sch 2 Pt B (a) to (g) of the GA Act, that all of these other subparagraphs are provisions that allow the Tribunal to make directions or make orders that concern particular aspects of the management or status of the property or estate of the represented person. (see Public Trustee and BG in respect of subparagraphs (e) and (f) particularly). In that respect, subparagraph (h) is a provision that is fundamentally different in character to all other subparagraphs in the schedule, in that it allows an administrator potentially to venture into decision-making regarding property not forming part of the estate of the represented person' [51].
Considering the purpose of the inclusion of paragraph (h) in the Schedule to the GA Act the member concluded that the wording of '[paragraph (h)] where it refers to "a power … vested in the represented person in the character of a trustee" envisages the performing of a single act or a one-off exercise of power rather than the adopting of an ongoing role encompassing many and varied decisions into the future and with the ability to significantly affect the rights of beneficiaries'.[51]
[51] SQ and IQ [52].
Having regard to the decision of the Full Tribunal in Public Trustee and VV and s 72(1) and paragraph (h) of the Schedule, I respectfully do not consider that the language of the provisions support that conclusion.

As noted, Public Trustee and VV recognised that the power to make an order to deal with trust assets exists. Paragraph (h) does not specify the type of trust in which the represented person has vested in him or her in the character of a trustee or guardian.[52] Although it may be arguable that different considerations apply as to whether the Tribunal should make an order sought under paragraph (h) of the Schedule, say for example in respect of a discretionary family trust or a self-managed superannuation fund, it is the case that the provision itself does not specify the nature of the trust or limit it in the way suggested in SQ. The considerations, in my view, turn on the exercise of discretion rather than a lack of jurisdiction to make the order.

Should authority be given

[52] Being a guardian under a trust deed rather than a guardian appointed to make personal decisions for a represented person under the GA Act. See for example Blenkinsop v Herbert [2017] WASCA 87[70]. 'Under trust law, the concept of a guardian, or as it is sometimes termed, protector, does not have a fixed meaning or content. The role of a guardian (if any) under a trust is as defined by the trust deed. Broadly speaking, the concept of guardian may refer to any person, distinct from the trustee, upon whom powers are conferred under a trust deed that enable some form of participation in the administration of the trust or disposition of the trust property …'.

In Public Trustee and VV the Full Tribunal considered when the discretion to make such an order should be exercised:[53]
The question as to whether the Tribunal ought to give authority under paragraph (h) [of the Schedule] will always turn on the particular circumstances of the case. The provisions of the relevant trust deed, the nature of the trust, the identity of the beneficiaries, the nature of the trust property and the character and extent of the powers in respect of which authority is sought, will all be significant considerations in the exercise of the discretion as to whether authority should be granted[.]
[53] Public Trustee and VV [32] per Justice JA Chaney, President, Mr M Allen, Senior Member, Ms S Gillett, Member, where the Public Trustee was identified as the personal representative for the purposes of the Superannuation Industry (Supervision) Act 1993 (Cth), s 10 and s 17A.
The nature of the trust in this case is the trust created in the will of the deceased and concerns the duties of the represented person as executor and trustee under that will. In contrast to Public Trustee and VV in the present case there is no suggestion that the represented person's office as trustee of the deceased estate terminated on the appointment of an administrator of his personal estate. The represented person was appointed the executor and trustee by the terms of the will. Once probate was granted to him in 2021, he held and holds that office until such time as the grant is revoked by order of the Court. Although as acknowledged there are (within the will and Administration Act) provisions for the substitution of the represented person, the necessary steps to give effect to these provisions have not been taken in the 12 months since he was found to be incapable and subject to an administration order.
The represented person is now incapable of giving instructions to the solicitors previously acting for him as executor of the deceased estate, and Ms Fifield's position is that she requires instructions to provide the trust information to the Public Trustee. Although this is challenged, and it is argued for the Public Trustee that the represented person is entitled to this information as a beneficiary of the deceased estate it appears to me that the situation is at an impasse.
I accept that the trustee information is necessary to enable the Public Trustee to advance the interests of the represented person, to ensure he has received his entitlements and act to protect the represented person from any liability he may incur as trustee associated with the unadministered deceased estate. This aligns with the purpose of the GA Act as identified in the Full Board case[54] and referred to in Public Trustee and VV. The represented person is unable to advance and protect his own interests which is why an administrator (and a guardian) have been appointed for him.
[54] Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268.
For this reason alone, I consider that the Public Trustee should have authority to seek and obtain trustee information from Avon Legal and that it is in the best interests of the represented person that the Public Trustee be authorised in the way proposed.
There is a question of what remains to be administered in the deceased estate and whether, for example, there is in fact a capital gains tax liability to be paid.
This issue is relevant given the term of the order possible under paragraph (h) of the Schedule which provides for the exercise of the represented person's powers as trustee. Although the represented person is appointed in the will as executor and trustee of the deceased estate it is clearly not within the jurisdiction of the Tribunal to appoint a substitute executor.[55]
[55] The testatrix appoints the executor of her will. If for example an executor renounces or cannot act, then an application may be made to the Supreme Court for Letters of Administration with the will annexed by a person with an interest in the deceased estate. 'The power … to appoint new trustees [in the Trustees Act] does not give power to appoint a person as an executor or administrator'. JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th edition, LexisNexis Butterworths, 2016) at [2-41].
In Mr Cummins' submission the distinction between the role of executor and a trustee of a deceased estate is that the executor does the work of the administration of the deceased estate and the trustee holds funds or assets and distributes those assets. He submitted that if the administration of the deceased estate was complete then the distribution was by the trustee and otherwise, if the administration was ongoing, and an interim distribution made, then this was by the executor.[56] This is consistent with the description of the distinction between the roles of executor and trustee as described in JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia, (8^th edition, LexisNexis, Butterworths, 2016):[57]
The principal duties of an executor are to get in the assets of the deceased, to pay debts, to pay the legacies given by the will, and to distribute the assets. If a person … appoints the same person as executor and trustee, … then that person acts as executor when performing executorial duties and thereafter while continuing to hold the property is a trustee.
[56] ts 5, 26 November 2024.
[57] JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th edition, LexisNexis Butterworths, 2016) '[t]he principal duties of an executor are to get in the assets of the deceased, to pay debts, to pay the legacies given by the will, and to distribute the assets. If a testator … .as the executor and trustee … then that person acts as executor when performing executorial duties, and thereafter while continuing to hold the property is a trustee. …
Although there was a house property and a share portfolio in the deceased estate, having regard to the date of the grant of probate being 31 May 2021 and the date of the sale of the house on 1 September 2021[58] and following Ms Fifield's comments at the directions hearing, it is likely that as raised by Mr Cummins there was no capital gains tax event in 2022/2023 and no capital gains tax payable. It appears that the administration of the deceased estate is therefore complete as the assets in the estate have been fully called in and the executory phase is complete, and the funds now held in trust. If that is the case, then the administration of the deceased estate may be completed on the distribution of the remaining funds according to the terms of the will. The funds now held in the deceased estate are minimal and are not held in an interest-bearing account.[59]
[58] Public Trustees' submission, 11 July 2024.
[59] ts 12, 5 November 2024.
Ms Fifield confirmed in the directions hearing that the firm acted for the represented person as trustee of the deceased estate.[60] No one now contends that any funds or assets of the deceased estate are outside the control of the trustee.
[60] ts 3, 17, 5 November 2024.
Once the Public Trustee obtains the information sought, the question to determine is whether there remains anything to be administered in the deceased estate or whether, acting with the powers of the represented person as trustee of the remaining funds, it can be completed by the distribution of those funds to the beneficiaries or whether further executorial actions are required.
The costs of making an application to the Court for the revocation of the grant of probate and replacement of the represented person with the substitute executor (even if she is willing) would likely deplete the remaining funds held in the deceased estate.
I am satisfied that it is permissible and in the best interests of the represented person (and the other beneficiaries) that the matter is concluded without further delay and additional costs and that the Public Trustee be empowered to distribute the remaining funds in the deceased estate according to the will, acting with the power of the represented person as trustee of that estate.
For these reasons I made the following orders.

Orders

On an application by the Public Trustee as plenary administrator for [JKJ] for directions pursuant to s 74 of the Guardianship and Administration Act 1990 (WA).
The Tribunal makes the following orders:
1.Pursuant to Part B of Schedule 2(h) of the Guardianship and Administration Act 1990 (WA) the Public Trustee as plenary administrator of the estate of [JKJ] (the represented person) is authorised to exercise the powers the represented person as trustee of the estate of the late [RJC] for the purposes of the following:
(a)to receive all documentation and information relating to the estate of the late [RJC] in the possession or control of Avon Legal Pty Ltd (ABN 57 113 278 505) trading as Avon Legal ("Avon Legal");
(b)to bring in such funds of the estate of [RJC] that are held in trust by Avon Legal to a bank account controlled by the Public Trustee;
(c)ascertain whether the estate of [RJC] has completed its tax obligations, and if not, to engage those accountants or the Public Trustee's internal accounting team for the purpose of finalising the estates tax obligations and to cause any tax payable by the estate of [RJC] to be paid or alternatively to receive any tax refundable to the estate of [RJC] that is receivable; and
(d)to distribute remaining funds (after the Public Trustee's reasonable fees are paid) to the beneficiaries of the will of [RJC] in such portions and amounts as directed by the will, and relative to those amounts that have already been distributed to the beneficiaries.

2.Pursuant to s 35(1) of the State Administrative Tribunal Act 2004 (WA) within 21 days of the date of request by the Public Trustee, Avon Legal Pty Ltd (ABN 57 113 278 505) trading as Avon Legal ("Avon Legal") is to produce to the Public Trustee all documentation and information relating to the estate of the late [RJC] in Avon Legal's possession or control, including but not limited to:
(a)documentation and information relating to the unadministered portion of the estate of [RJC];
(b)documentation and information relating to the tax affairs of the estate of [RJC]; including details of the estates tax accountant and tax returns completed;
(c)documentation and information relating to the assets and liabilities of the estate of [RJC];
(d)documentation and information relating to distributions made by the estate of [RJC] to date;
(e)documentation and information relating to the beneficiaries of the estate of [RJC] (that is, their names, contact details and how many residuary beneficiaries there are); and
(f)an up-to-date record of transactions in relation to the estate of [RJC].

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
20 JANUARY 2025

Applications under this section shall be grounded upon affidavit stating any circumstances from which it appears that it would be beneficial to any person who is or may be interested in such estate, or that the due and proper administration of the estate requires that the executor or administrator should be removed, and that such estate should be administered by the Public Trustee.

An executor who has performed all executorial functions may become a trustee by merely continuing to hold property' at [2-40]. 'In practice it is not easy to determine exactly when a person ceases to act as executor and commences to hold the property as trustee at [2-41]. The test is clear - have the person's executorial duties in respect of that property ended; but the difficulty in practice is to ascertain precisely whether that is the case at [2-44].