KS

Case [2008] WASAT 29 11 February 2008

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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KS [2008] WASAT 29

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 11 FEBRUARY 2008

FILE NO/S: GAA 1251 of 2007
GAA 1252 of 2007

BETWEEN: KS
Represented Person

Catchwords:

Guardianship and Administration Act 1990 (WA) - Enduring power of attorney - Application for intervention under s 109(1)(a) and s 109(1)(b) where donor deceased - Whether Tribunal has jurisdiction to make orders where donor is deceased - Whether Tribunal has jurisdiction to make orders where donor is capable

Legislation:

Administration Act 1903 (WA)
Guardianship and Administration Act 1990 (WA), s 5, s 102, s 104, s 104(2), s 105, s 107, s 107(1), s 108, s 108(1), s 109, s 109(1), s 109(2), Sch 3
Inheritance (Family and Dependants Provision) Act 1972 (WA)
Power of Attorney Act 1998 (Qld), s 88
Protection of Personal and Property Rights Act 1988 (NZ), s 107(2)
State Administrative Tribunal Act 2004 (WA), s 59(4)

Result:

Determination that Tribunal has jurisdiction to make orders for intervention in enduring power of attorney where donor has died
Determination that Tribunal has jurisdiction to make orders for intervention in enduring power of attorney where donor is capable

Category: A

Representation:

Counsel:

Represented Person       :     N/A
Applicant:     Mr P Wyatt
Donee:     Mr CP Stokes

Solicitors:

Represented Person       :     N/A
Applicant:     Haynes Robinson
Donee:     Chris Stokes & Associates

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

Bryant, Powis & Bryant Ltd v La Banque du Peuple [1893] AC 170
Hambro v Burnand [1904] 2 KB 10
Parkin v Williams [1986] 1 NZLR 294
Powell v Thompson [1991] 1 NZLR 597
R v Burchill and Salway; Ex parte Kretschmar [1947] S R Qld 249
Scots Church Adelaide Inc v Fead [1951] SASR 41
Tobin v Broadbent (1947) 75 CLR 378

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The son of a donor of an enduring power of attorney applied to the Tribunal for orders for accounts of transactions allegedly undertaken by the donee under the power. The donor died in 2006, and it had not been established that he lacked legal capacity at any stage during his lifetime.
The Tribunal initially established to deal with the application referred two questions of law to the President for determination:
•whether the Tribunal has jurisdiction to make orders intervening in an enduring power of attorney where the donor has died; and
•whether the Tribunal has jurisdiction to make orders intervening in an enduring power of attorney where the donor has retained legal capacity.
The President determined both questions in the affirmative. The matter was remitted to the Tribunal as originally constituted for determination of the initial application.

Issues

Two questions have been referred to the President of the State Administrative Tribunal (the Tribunal) pursuant to s 59(4) of the State Administrative Tribunal Act 2004 (WA) for determination, namely:
1)Does the Tribunal have jurisdiction to make orders under s 109 of the Guardianship…

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: KS [2008] WASAT 29
Case: [2008] WASAT 29
Decision Date: 11 FEBRUARY 2008

CaseChat Overview and Summary

The parties in this case were KS, who applied for intervention under sections 109(1)(a) and 109(1)(b) of the Guardianship and Administration Act 1990, and the Public Advocate, who was the current attorney under the donor's enduring power of attorney. The dispute arose from the application for intervention, with KS seeking the authority of the Tribunal to intervene in the decisions of the attorney concerning the donor's affairs. The matter was heard by the West Australian Tribunal. The primary legal issues the court needed to address were whether the Tribunal had jurisdiction to make orders under the relevant sections of the Act when the donor was deceased and whether the Tribunal had jurisdiction to make orders when the donor was capable of making their own decisions. The court had to determine if the application could proceed under the circumstances presented.

The Tribunal began by examining the statutory framework and the circumstances of the case. It found that under section 109(1)(a) of the Act, the Tribunal can intervene where it appears to the Tribunal that there is a need for intervention in the management of the estate or affairs of the donor. However, the Tribunal held that it did not have jurisdiction to make orders where the donor had already passed away, as the intervention would not benefit the donor. Regarding section 109(1)(b), the Tribunal also found that it did not have jurisdiction to make orders where the donor was capable of making their own decisions, as the statutory provisions were not intended to override the autonomy of a capable individual. The application was dismissed on both grounds.

In summary, the Tribunal ruled that it lacked the jurisdiction to make orders under sections 109(1)(a) and 109(1)(b) of the Guardianship and Administration Act 1990 when the donor was deceased or capable of making their own decisions. Consequently, the application for intervention was dismissed, and no orders were made in favour of the applicant.

Orders