NA AND JA and WA [2017] WASAT 151

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 151
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:47/2017	Heard:	12 JULY 2017
Coram:	MS L EDDY (MEMBER)	Delivered:	24/11/17
No of pages:	13	Judgment Part:	1 of 1
Result:	Applications struck out
Category:	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

BETWEEN : NA AND JA

Applicants

AND

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…

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.

Continue reading NA AND JA and WA

Details

AGLC: NA AND JA and WA [2017] WASAT 151
Case: [2017] WASAT 151
Decision Date: 24 NOVEMBER 2017

CaseChat Overview and Summary

The case of NA AND JA and WA involved the sons of an elderly man who had executed an enduring power of attorney. The applicants sought an order for the production of accounts and records, an audit of those documents, and for the revocation of the enduring power of attorney. The father opposed these applications, arguing that the applicants did not have a proper interest in the matter and that the applications should be dismissed. The court was tasked with determining whether the applicants had the requisite standing to bring the applications and if the matter should proceed or be struck out.

The primary legal issues the court had to address were the standing of the applicants and the validity of the enduring power of attorney. The father contended that the applicants did not have a proper interest in the matter, and thus, the court should not entertain their applications. The applicants argued that they had a legitimate interest in ensuring that their father's affairs were being managed properly and that they had grounds to believe that there was mismanagement. The court had to weigh the applicants' right to seek judicial review against the father's autonomy to manage his own affairs.

The court found that the applicants did not have a proper interest in the matter. The court reasoned that the father was living and had the capacity to manage his own affairs. The applicants had not provided any evidence that there was any mismanagement or that their father's welfare was at risk. The court held that the applicants had not demonstrated a legitimate interest in the proceedings, and therefore, the applications should be dismissed. Consequently, the court struck out the applications.

Orders

Orders of the court

Applications struck out

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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