NA AND JA and WA
[2017] WASAT 151
•24 NOVEMBER 2017
NA AND JA and WA [2017] WASAT 151
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 151 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:47/2017 | 12 JULY 2017 | |
| Coram: | MS L EDDY (MEMBER) | 24/11/17 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Applications struck out | ||
| B | |||
| PDF Version |
| Parties: | NA AND JA WA |
Catchwords: | Enduring power of attorney Application by sons for production of accounts and records, audit of those documents and for revocation of enduring power of attorney executed by their father Living capable donor Donor opposes applications Whether applicants have proper interest Whether applications should be struck out |
Legislation: | Guardianship and Administration Act 1990 (WA), s 40, s 109(1)(a), s 109(1)(b), s 109(1)(c) State Administrative Tribunal Act 2004 (WA), s 47 |
Case References: | HM [2016] WASAT 121 Laurent and Commissioner of Police [2009] WASAT 254 McCully v Whangamata Marina Society Inc and Anor [2006] NZCA 209 Onus v Alcoa Australia [1981] HCA 50; (1981) 149 CLR 27 Re SS; Ex Parte RA [2008] WASAT 218 |
Summary | The applicants, who are sons of WA, applied to the Tribunal seeking that GA, the attorney appointed by WA under an enduring power of attorney executed by WA, provide records and accounts of transactions carried out under the enduring power of attorney and for those documents to be audited. They also sought revocation of the enduring power of attorney. WA opposed the applications. It was not in dispute that WA had the relevant legal capacity to make decisions in relation to his finances and the enduring power of attorney. In circumstances where WA was made aware of the allegations and concerns of the applicants in relation to the actions of GA, and was separately legally represented, WA applied for the applications to be struck out pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA). In all of the circumstances the Tribunal determined that JA and NA are not persons with a proper interest in the matter. As such, the Tribunal determined that the applications should be struck out as requested by WA. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : NA AND JA and WA [2017] WASAT 151 MEMBER : MS L EDDY (MEMBER) HEARD : 12 JULY 2017 DELIVERED : 24 NOVEMBER 2017 FILE NO/S : GAA 47 of 2017
- GAA 48 of 2017
GAA 49 of 2017
- Applicants
AND
WA
Donor
Catchwords:
Enduring power of attorney - Application by sons for production of accounts and records, audit of those documents and for revocation of enduring power of attorney executed by their father - Living capable donor - Donor opposes applications - Whether applicants have proper interest - Whether applications should be struck out
Legislation:
Guardianship and Administration Act 1990 (WA), s 40, s 109(1)(a), s 109(1)(b), s 109(1)(c)
State Administrative Tribunal Act 2004 (WA), s 47
Result:
Applications struck out
Summary of Tribunal's decision:
The applicants, who are sons of WA, applied to the Tribunal seeking that GA, the attorney appointed by WA under an enduring power of attorney executed by WA, provide records and accounts of transactions carried out under the enduring power of attorney and for those documents to be audited. They also sought revocation of the enduring power of attorney. WA opposed the applications. It was not in dispute that WA had the relevant legal capacity to make decisions in relation to his finances and the enduring power of attorney. In circumstances where WA was made aware of the allegations and concerns of the applicants in relation to the actions of GA, and was separately legally represented, WA applied for the applications to be struck out pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA). In all of the circumstances the Tribunal determined that JA and NA are not persons with a proper interest in the matter. As such, the Tribunal determined that the applications should be struck out as requested by WA.
Category: B
Representation:
Counsel:
Applicants : Mr S Blyth
Donor : Mr M Curwood
Solicitors:
Applicants : Lewis Blyth & Hooper
Donor : Lander Hynes Lawyers
Case(s) referred to in decision(s):
HM [2016] WASAT 121
Laurent and Commissioner of Police [2009] WASAT 254
McCully v Whangamata Marina Society Inc and Anor [2006] NZCA 209
Onus v Alcoa Australia [1981] HCA 50; (1981) 149 CLR 27
Re SS; Ex Parte RA [2008] WASAT 218
Introduction
1 In January 2017, NA and JA lodged applications in the Tribunal under s 109(1)(a), s 109(1)(b) and s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking orders in relation to enduring powers of attorney made by their father, WA.
2 WA is legally represented in these proceedings and he has maintained a position of opposition to the applications brought by his sons NA and JA throughout.
3 On 2 June 2017, WA applied to have the applications struck out pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). After hearing from the representative of the applicants and the representative of WA on 12 July 2017, the Tribunal reserved its decision on the strike out application.
Relevant facts
4 Except where stated otherwise, the following material facts are taken from the applicants' Amended Statement of Issues Facts and Contentions dated 19 May 2017. For the purposes of the strike out application, these facts must be taken to be true.
5 WA is 89 years of age and has nine children. He resides on a farm in Western Australia. It is not in dispute that GA, another son of WA, assists WA to run that farm, and has for a significant period of time.
6 It is not disputed by any party that there is no evidence from any medical practitioner before the Tribunal that is capable of rebutting the presumption that WA is a person who can make his own reasonable decisions in relation to his estate. WA's doctor provided a report to the Tribunal in which the doctor indicated that WA did not have any mental disability and is capable of executing an enduring power of attorney.
7 On 13 August 1999, WA executed an enduring power of attorney appointing two of his children GA and VA as his attorneys (1999 EPA). On 19 November 2010, WA executed a further enduring power of attorney appointing only GA as his attorney (2010 EPA). GA has acted as the sole attorney of WA since the 2010 EPA was executed.
8 For a significant period of time after November 2016, GA refused to speak to or otherwise communicate with WA, with the intention that, by so acting, WA would, in order to maintain a relationship with GA, not revoke the 2010 EPA.
9 In February 2017, GA, in his capacity as WA's attorney, sold 187 of WA's yearling steers, utilising the resources of the WA. WA told VA, another of WA’s children, that 120 steers had been sold. On these facts, NA and JA assert that 67 of WA's steers were not maintained or dealt with for the benefit of WA.
10 WA wished to leave each of his children a parcel of land in his Will. GA informed WA that the various land holdings of WA cannot be subdivided so as to enable WA to gift parcels of land to each of his children in his Will. On the basis of that information, WA created a new Will in late 2016 that does not provide for each of WA's children to receive a parcel of WA's land.
11 On 7 March 2017, during a hearing at the Tribunal, WA did not understand the nature or purpose of a proposed adjournment and did not exercise his own free will, and was unable to give consideration to instructions sought from him by his solicitor. Instead, WA simply acted on the advice of his solicitor a representative from his accountants.
12 GA and/or other children of WA have prevented WA from having free and unfettered communications with one of WA's children, MA.
13 In 2014, WA said things to his daughter MA to the effect that WA would not act contrarily to the wishes of GA in relation to a particular decision of GA concerning the farm, because he was worried that GA would 'leave again as he did when he was very young'.
14 After these proceedings were commenced, when talking to VA about the proceedings, WA initially told VA that he had no objection to the proceedings having been filed. However, a few days later, WA spoke to VA's partner and said to him 'stop this or GA has said he will walk off the farm'.
15 There are contentions made on behalf of NA and JA in the 'Contentions' portion of the Amended Statement of Issues, Facts and Contentions dated 19 May 2017 (which was prepared by their legal representative) to the effect that:
a) WA is not aware of, and has not been fully informed by GA of a number of GA's dealings with WA's assets in his capacity as WA's attorney; and
b) Notwithstanding that WA may have legal capacity, WA is not able to understand and appreciate accounts that have been prepared for and on his behalf, at the direction of GA, through a firm of accountants, and WA is unable to make an informed decision acknowledging and accepting those accounts.
16 In addition, in oral submissions on behalf of the applicants, it was contented that part of the reason why the Tribunal should not dismiss the matter, but rather make the orders sought, is that WA's will is in fact overborne by GA such that WA is not in fact making his own free choices in relation to financial matters or in relation to this application.
17 For the purposes of the strike out application, I take the view that I should assume that facts capable of supporting these contentions are able to be established by the applicants.
18 In submissions filed on behalf of WA, it is stated that WA opposes the orders sought by his sons NA and JA. It is also stated that there is no issue between WA and his appointed enduring attorney GA and WA wishes the 2010 EPA to continue in effect.
Principles for strike out
19 In Laurent and Commissioner of Police [2009] WASAT 254, at [19] [23], the general principles applicable to an application made pursuant to s 47 of the SAT Act are summarised as follows:
... Given the absence of formal pleadings, the power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case: see Turner and Maunsell Australia Pty Ltd [2006] WASAT 52 (Turner) at [45] [46] and the cases there cited.
When, as in the present case, an application is made at an interlocutory stage, it is appropriate to assume that all of the factual assertions made by an applicant will be made out, and to consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived, or lacking in substance: Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 (Ambrus) at [16] (Deputy President Judge Chaney, as he then was). Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, or if factual issues are likely to be affected by evidence in the possession of a respondent, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act. In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and crossexamination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged: see Soelberg and Commissioner of Police and Ors [2007] WASAT 214 at [49] (Deputy President Judge Eckert), and Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11].
In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the power of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action. The principles applicable to the exercise of that power have been considered applicable to the exercise of the power in s 47. In Ambrus at [8], Deputy President Judge Chaney observed that:
… the principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed.
See also Turner at [43] [48]. A similar approach has been adopted in relation to s 75 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (VCAT Act): see, for example, Forrester v AIMS Corporation [2004] VSC 506 at [17] [28] (Kaye J), applying State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (Rabel).
In so far as the respondents submit that the proceeding is 'misconceived' or 'without substance', I note that the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact: Rabel at 108 109 (Ormiston JA)
Submissions
20 WA makes the following submissions in support of his application for the proceeding to be struck out.
21 WA is of full legal capacity and engages his own professional advisers including an accounting firm and lawyer. Although the fact that WA has full legal capacity does not prevent a person with a proper interest making an application under s 109(1)(a) and s 109(1)(b) of the GA Act, the circumstances in this case are very different to the circumstances where the Tribunal has made orders under those sections where the donee had full capacity.
22 As examples of the types of circumstances where the Tribunal has made orders under s 109(1) of the GA Act where the donee was of full capacity, WA points to the decisions of the Tribunal in KS [2008] WASAT 29 (KS) and in HM [2016] WASAT 121 (HM).
23 In KS, the donee was deceased at the time of the making of the application under s 109(1) of the GA Act. Relevant circumstances included that KS's son had commenced Supreme Court proceedings in relation to KS's estate. As part of those proceedings, the son was asserting that, despite the fact that KS had legal capacity until the time of his death, the donee of KS's enduring power of attorney had used the enduring power of attorney to transfer some of KS's property out of KS's estate prior to KS's death, and as a result the statement of assets submitted for probate did not properly reflect the value of KS's estate.
24 In HM, the application was brought by the donor of the enduring power of attorney. HM, who was of full legal capacity, was seeking the lodgement of records and accounts in relation to transactions made by the donee under the enduring power of attorney in circumstances where HM had revoked the enduring power and was disputing a particular transaction made by the donee under the power.
25 WA submits that the circumstances in KS and HM are far removed from the circumstances applicable in this case. It is submitted that where the donor of an enduring party is party to the proceedings, has full legal capacity, is represented by his own legal advisers and is in opposition to orders being made under s 109(1) of the GA Act, the circumstances do not require the Tribunal to exercise its jurisdiction under s 109(1) of the GA Act.
26 In oral submissions made on behalf of WA, counsel for WA adopted the written submission lodged on behalf of the donee of the enduring power of attorney, GA, that JA and NA did not have a proper interest within the meaning of s 109(1) of the GA Act, and as such did not have standing to bring the applications.
27 JA and NA make the following submissions in opposition to the strike out application.
28 JA and NA submit that the term 'proper interest' contained in s 109(1) of the GA Act should not be restrictively applied: EW [2010] WASAT 91 at [27] [28] (EW). Relying on the Tribunal's decision in EW, JA and NA submit that they have a proper interest within the meaning of s 109(1) of the GA Act because they are children of WA.
29 It is submitted that WA is dependent on GA to such an extent that there is a power imbalance between them. It is further submitted that when that power is exercised contrary to the interests of WA, as is asserted in the applicants' Statement of Issues Facts and Contentions, the Tribunal ought to act in the best interests of WA and investigate the circumstances in order to determine whether GA is acting in WA's best interests and is a fit and proper person to remain WA's attorney.
Determination
30 It has long been accepted that the Tribunal has a general supervisory jurisdiction, via the GA Act, in relation to enduring powers of attorney: KS at [26]. That jurisdiction is not removed when the donor dies, nor is it necessarily the case that a donor must have lost capacity to enliven the jurisdiction: KS at [29] - [37], [46] [48].
31 Having regard to the statutory context within the GA Act, in KS, His Honour Justice Barker stated that if in the circumstances there was a proper reason to inquire, there was no reason why the power provided by s 109(1)(a) of the GA Act could not be exercised after the donor of the enduring power of attorney was deceased: KS at [34] [37]. Later in the reasons in KS, His Honour explained that it may be that a donor of full legal capacity may not be aware of all of the conduct of the donee and '[t]herefore, should the circumstances require it, the Tribunal may consider making accounting orders against a donee, even at the instance of a donor with full legal capacity'; at [49].
32 In this case, WA has been made aware of the allegations made by JA and NA in relation to the conduct of GA. It cannot be said that, at least at this point in time, that WA may not be aware of the alleged conduct of the donee in relation to the 2010 EPA.
33 JA and NA submit that the combination of the improper conduct of the donee, and WA's dependence on GA causing WA to not be able to fully exercise his own free will in relation to the enduring power of attorney, create sufficient circumstances for the Tribunal to inquire into the conduct of the GA as donee of the 2010 EPA by making the orders under s 109(1) of the GA Act applied for.
34 There are three difficulties with that submission.
35 Firstly, the statutory power given to the Tribunal may only be exercised upon application by a person who has a 'proper interest in the matter': s 109(1) of the GA Act.
36 As JA and NA submit, the Tribunal has stated that the term 'proper interest' should not be restrictively applied: EW at [27] [28]. However, in that same decision, the Tribunal indicated that authorities in relation to similar phrases provide some guidance to the Tribunal in understanding the term 'proper interest': EW at [20] [27]. The authorities referred to in EW provide support for the proposition that to have a 'proper interest' an applicant is required to have a real interest, not a frivolous or vexatious or merely prurient interest: McCully v Whangamata Marina Society Inc and Anor [2006] NZCA 209 (11 August 2006); Onus v Alcoa Australia [1981] HCA 50; (1981) 149 CLR 27.
37 As was noted in Re SS; ex parte RA [2008] WASAT 218 at [59] (Re SS), by contrast with an application for the appointment of a guardian or administrator under s 40 of the GA Act, where 'any person' may make an application, s 109(1) of the GA Act allows an application only to be made by a person with a 'proper interest'.
38 This context indicates an intention to restrict applications under s 109(1) to those with the relevant interest in the particular matter raised by the application.
39 It has been accepted in a number of decisions of the Tribunal that a child of a deceased donor who is a beneficiary of the donor's estate has a proper interest in inquiring in relation to transactions carried out using an enduring power of attorney where it is alleged that those transactions diminished the estate of the donor: see for example KS.
40 As was pointed out on behalf of WA, the Tribunal has also accepted that the donor of an enduring power of attorney is a person who has a proper interest in inquiring into the conduct of a donee of that power of attorney: see for example HM.
41 However, the Tribunal has also stated that in cases where the donor is or was capable, the Tribunal is likely to be reluctant to intervene because the powers of the Tribunal on intervention are or were within the power of a capable donor: Re SS at [50].
42 JA and NA do not have any present interest in WA's estate. In addition, there is no assertion that WA has previously shared financial information with JA and NA such that in the circumstances they might expect to have been given the information sought in their applications.
43 WA, after being made aware of the allegations, being a person who is not disputed to have the relevant legal capacity, and being separately legally represented, opposes the applications.
44 In those circumstances, the Tribunal is not satisfied that JA and NA have a proper interest in being given access to the records and accounts of any transactions undertaken under the enduring power of attorney in relation to WA's estate.
45 The GA Act is an Act with a long title that provides:
An Act to provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs, to confer on the State Administrative Tribunal jurisdiction in respect of guardianship and administration matters, to provide for the appointment of a public officer with certain functions relative thereto, to provide for enduring powers of attorney, enduring powers of guardianship and advance health directives, and for connected purposes.
46 While this shows that one of the objectives of the GA Act is to provide for enduring powers of attorney, it does not expand on the nature of the Tribunal's role in relation to enduring powers of attorney in circumstances where the donor is alive and is relevantly competent.
47 WA's right to autonomy and privacy in relation to his financial affairs is a right that should not be taken as able to be interfered with by any provision of the GA Act unless there is clear express or implied authority to that effect in the GA Act. In my view, there is such authority in the GA Act. As explained by His Honour Justice Barker in KS, the Tribunal is given a general supervisory role in relation to enduring powers of attorney and implicitly, at least in some circumstances, that role must allow interference with a competent person's right to autonomy and privacy. Thus, as has been seen in the examples referred to above, an application may be made in relevant circumstances where a donor is legally competent. However, that is not to say that in all circumstances, just because a person alleges that there is a reason to inquire into dealings carried out under an enduring power of attorney, that person will, without more, have a proper interest in the matter.
48 The important factors in this case that together have led to the conclusion that JA and NA do not have a proper interest are that:
1) they do not allege that WA lacks capacity in matters relating to his estate and to enduring powers of attorney;
2) WA has, through the exchange of statements of issues facts and contentions as well submissions, been made fully aware of the allegations and concerns held by JA and NA;
3) WA is separately represented by a legal practitioner; and
4) WA actively opposes the applications.
49 Concern for their father's financial interests, even if well founded, is not, of itself, in these particular circumstances, sufficient to found, in JA and NA, a proper interest for the purposes of s 109(1) of the GA Act.
50 Secondly, the donor, WA, is accepted by JA and NA to be a person who has the capacity to make his own decisions. It is submitted that WA is subject to undue influence, or is so dependent on GA that his will is overborne by GA. However, the Tribunal is not a body that has any jurisdiction to find that WA has been the subject of any undue influence or that his entering into, or acceptance of, any relevant transaction should not be accepted because in truth his free will was overborne in the legal sense.
51 If there were medical evidence to the effect that WA did not have capacity to make his own decisions in relation to an enduring power of attorney, that is, to require his attorney to account to him, to revoke an enduring power of attorney or to make a new enduring power of attorney, because he could not in fact make an independent decision of that kind, then it could not be said that WA was a person who had relevant capacity. Yet, in this case, JA and NA concede that WA is a person who has capacity. So while they submit that WA's will has been overborne, they do not assert that this has occurred to such a degree so as to effectively render him incapable of making reasonable decisions in relation to matters concerning the 2010 EPA and these proceedings.
52 Thirdly, as WA has legal capacity in relation to his finance and in relation to matters connected with his enduring powers of attorney, the enduring nature of the 2010 EPA has not been activated. The 2010 EPA continues in force after WA loses capacity but before that time it is in effect equivalent to a common law power of attorney. In that context, the Tribunal should be slow to interfere with choices made by a person who has capacity, is fully aware of the allegations and concerns raised in relation to matters concerning his estate and his enduring power of attorney. In this case, WA, who is such a person, has chosen to oppose the applications brought by JA and NA and seeks that the applications be struck out. The circumstances alleged (which are taken to be true for the purposes of this application) do not, in this context, provide a basis for the Tribunal to make the orders sought in the face of WA’s opposition.
53 The Tribunal is satisfied that, even assuming the facts alleged by JA and NA to be true, in the circumstances of this case, the applications of JA and NA under s 109(1)(a) and s 109(b) of the GA Act have no prospect of succeeding. JA and NA are not, in the circumstances, people who have a proper interest in the matter. WA is a person with relevant legal capacity who has been made aware of the concerns and allegations of JA and NA. WA has been represented in these proceedings by a legal representative who does not represent any other person interested in these proceedings. WA is opposed to the orders sought by JA and NA in these applications. The applications are lacking in substance and the proceedings should be struck out pursuant to s 47 of the SAT Act.
Orders
1. The applications are struck out in their entirety pursuant to s 47 of the State Administration Tribunal Act 2004 WA on the basis that the applications are lacking in substance.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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