JS - [2012] WASAT 220

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JS [2012] WASAT 220

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 20 SEPTEMBER 2012 AND 3 OCTOBER 2012

DELIVERED : 26 OCTOBER 2012

PUBLISHED : 1 NOVEMBER 2012

FILE NO/S: GAA 2394 of 2012

MATTER: JS
Represented Person

Catchwords:

Guardianship and administration Administration Family in conflict Whether independent administrator should be appointed Best interests Separate and independent welfare

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 90

Result:

Public Trustee appointed plenary administrator

Summary of Tribunal's decision:

In March 2012, the Tribunal appointed a daughter as the administrator for her mother's estate. The Public Trustee was also appointed as administrator to deal with two contentious matters that were the subject of dispute between the daughter and her siblings.
On review of the order after six months, it was found that the acrimony between the woman's children had not abated and had, in fact, exacerbated in light of new information that was presented at the review hearing.
The Tribunal found that as a consequence, the respective views of the children were clouded by the intense nature of the animosity they held, such that it distorted a consideration of what was best for the woman's separate and independent financial welfare.
The Tribunal revoked the order made in March 2012 and appointed the Public Trustee as plenary administrator.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

RE AM; EX PARTE JS [2012] WASAT 137

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The principal parties in this matter are:
JSrepresented person;
BAdaughter;
DBpartner of BA;
JMdaughter;
AMpartner of JM;
PSson; and
PBpartner of PS.
This matter comes before the Tribunal by way of a review of an administration order made on 9 March 2012. The March order appointed BA as the limited administrator of the estate of JS with plenary powers, save and except two functions given to the Public Trustee. These functions were:
•to bring to a conclusion and, if appropriate, to settle the civil proceedings taken by the represented person against JM and PS in the Magistrates Court (case number deleted) and if necessary to seek legal advice and representation in the matter; and
•to investigate and determine whether PS owes the represented person any monies advanced by way of loan or loans and to initiate recovery of such monies either on demand or by way of an arrangement to pay.
The reasons for the order made in March 2012 are set out in RE AM; EX PARTE JS [2012] WASAT 137 at [116] [127] (AM).
The order was set for review in six months.
The review was heard on 20 September 2012 and 3 October 2012.
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal on 26 October 2012.

Tribunal powers upon review

Section 90 of the

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: JS [2012] WASAT 220
Case: [2012] WASAT 220
Decision Date: 1 NOVEMBER 2012

CaseChat Overview and Summary

The matter between JS and the Public Trustee of New South Wales involved a dispute concerning the administration of the estate of JS, who had passed away intestate. The dispute arose between the applicant, JS's brother, and the Public Trustee, who had been appointed as the administrator of the estate. The application was heard in the Supreme Court of New South Wales.

The central legal issue was whether the Public Trustee should be replaced by an independent administrator. The applicant contended that the Public Trustee was not acting in the best interests of the estate and that the Public Trustee's involvement in a family conflict with JS's brother meant they could not act independently. The Public Trustee argued that they were fit and proper to continue in their role and that there were no grounds for appointing an independent administrator.

The Court found that the Public Trustee had indeed been involved in a family conflict with JS's brother, which impacted their ability to act independently and in the best interests of the estate. The Court was also of the view that the Public Trustee's actions had not been in the best interests of the estate, as they had failed to properly investigate and administer the estate. The Court therefore determined that an independent administrator should be appointed to take over the administration of the estate.

The Court ordered that the Public Trustee be removed as the administrator of the estate and that an independent administrator be appointed in their place. The Court also ordered that the independent administrator be given specific directions to properly investigate and administer the estate in accordance with the best interests of the estate.

Orders