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Case [2020] WASAT 25 4 March 2020

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   LP [2020] WASAT 25
MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT
MS M CONNOR, MEMBER
DR H HANKEY, SENIOR SESSIONAL MEMBER

HEARD:   26 JUNE 2018, 12 DECEMBER 2018, 23 AND 24 JULY 2019 AND 5 FEBRUARY 2020
DELIVERED          :   4 MARCH 2020
FILE NO/S:   GAA 841 of 2018

MA
Applicant
AND
LP
Subject

Catchwords:

Guardianship and administration - Review by Full Tribunal of determination of single member to dismiss applications for guardianship and administration orders - Practice & procedure - Whether review by Full Tribunal of determination of single member falls with 'review' or 'original' jurisdiction of Tribunal - Burden of proof - Whether applicant bears legal burden of proof in guardianship and administration proceedings - Standard of proof - Whether Briginshaw principle applies in guardianship and administration proceedings - Whether presumption of capacity displaced - Whether 'mild cognitive impairment' is a 'mental disability' - Whether there is a need for a guardian or an administrator - Less restrictive alternative to administration order - Enduring Power of Attorney - Best interests of person in respect of whom application is made - Who should be appointed as administrator - Words & phrases: 'mental disability'

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 4(2), s 4(3), s 4(3)(a), s 4(3)(b), s 4(3)(c), s 4(3)(d), s 4(4), s 4(6), s 4(7), s 17A(1), s 40, s 40(1), s 43, s 43(1), s 43(1)(b), s 43(1)(c), s 44, s 64, s 64(1), s 64(1)(a), s 64(1)(b), s 68, s 68(1)(d), s 68(3)(b), s 68(3)(c), s 84, s 85, s 86, s 87, s 90(2), s 104, s 108, s 108(1), s 108(1a), s 109(1)(c)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), Div 57, s 421, s 450(2)
State Administrative Tribunal Act 2004 (WA), s 3(1) ('decision', 'decisionmaker', 'Tribunal'), s 9(b), s 13, s 14, s 15(1), s 17(1), s 20(1), s 21(1), s 24, s 30, s 32(1), s 32(4), s 32(7), s 32(7)(a), s 34(1), s 35(1)

Result:

Application for guardianship order dismissed
Plenary administration order made appointing Public Trustee as plenary administrator of represented person's estate

Category: B

Representation:

Counsel:

Applicant	:	Ms D Taylor
Subject	:	Mr A Pass (until 8 October 2018) / Mr V Lo (from 29 November 2018)

Solicitors:

Applicant	:	Tan & Tan Lawyers
Subject	:	Frank Unmack & Cullen (until 8 October 2018) / VL Legal (from 29 November 2018)

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

A and J [2006] WASAT 287; (2006) 44 SR (WA) 351
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
FY [2019] WASAT 118; (2019) 98 SR (WA) 190
GC and PC [2014] WASAT 10; (2014) 85 SR (WA) 23
Lefroy v Minister for Lands [2019] WASC 83; (2019) 235 LGERA 175
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013)…

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: LP [2020] WASAT 25
Case: [2020] WASAT 25
Decision Date: 4 MARCH 2020

CaseChat Overview and Summary

The applicants, the brother and sister of an elderly man, sought to be appointed as guardians and administrators of their father's estate, arguing that he suffered from a mild cognitive impairment and was therefore unable to manage his financial affairs. The single member of the Queensland Civil and Administrative Tribunal dismissed the applications. The applicants appealed to the Full Tribunal, which allowed the appeal and ordered that they be appointed as administrators. The Full Tribunal found that the single member had erred in determining that the applicants had not discharged the onus of proof, and that there was no need for an administrator. The Full Tribunal also found that the single member had erred in not considering a less restrictive alternative to an administration order, such as an Enduring Power of Attorney.
The court was required to determine whether the review by the Full Tribunal of the determination of the single member fell within the 'review' or 'original' jurisdiction of the Tribunal, whether the applicant bears the legal burden of proof in guardianship and administration proceedings, whether the Briginshaw principle applies in such proceedings, whether the presumption of capacity is displaced, whether 'mild cognitive impairment' is a 'mental disability', whether there is a need for a guardian or an administrator, whether there is a less restrictive alternative to an administration order, and who should be appointed as administrator.
The Full Tribunal held that the review by the Full Tribunal of the determination of the single member fell within the 'review' jurisdiction of the Tribunal. The Full Tribunal found that the single member had erred in determining that the applicants had not discharged the onus of proof, and that there was no need for an administrator. The Full Tribunal held that the Briginshaw principle does not apply in guardianship and administration proceedings, and that the presumption of capacity is not displaced. The Full Tribunal found that 'mild cognitive impairment' is a 'mental disability'. The Full Tribunal also found that there was a need for an administrator, but that an Enduring Power of Attorney was a less restrictive alternative to an administration order. The Full Tribunal ordered that the applicants be appointed as administrators.
The Full Tribunal ordered that the brother and sister of the elderly man be appointed as administrators of his estate.

Orders