NM and SGF - [2014] WASAT 103

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: NM and SGF [2014] WASAT 103

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS F CHILD (MEMBER)

HEARD: 7 AUGUST 2014

DELIVERED : 7 AUGUST 2014

PUBLISHED : 27 AUGUST 2014

FILE NO/S: GAA 458 of 2014

BETWEEN: NM
Applicant
AND
SGF
EF
Respondents

Catchwords:

Enduring power of attorney Intervention in enduring power of attorney Records and accounts kept by enduring attorneys Practice and procedure Civil and criminal enforcement of Tribunal's nonmonetary orders Tribunal made order requiring enduring attorneys to file with Tribunal and serve on applicant all records and accounts kept by them of dealings and transactions in connection with enduring power Enduring attorneys filed records and accounts with Tribunal but did not serve them on applicant Whether order to file and serve records and accounts should be varied to no longer require service on applicant Whether Tribunal has power to order that records and accounts be filed with it but not served on applicant Whether Tribunal has power to review, amend or vary its final order Whether confidentiality agreement should be imposed on applicant Whether applicant should have to inspect records and accounts at Tribunal Whether certificate should be issued to enable civil enforcement of order Whether declaratory order should be made so that offence would be committed upon further failure to comply with order

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A, s 17A(2), s 109(1), s 109(1)(a), s 112(4)
State Administrative Tribunal Act 2004 (WA), s 9, s 73(1), s 83, s 86(2)(c), s 95(1), s 95(3)(b)

Result:

Enduring attorneys ordered to serve records and accounts on applicant within seven days
If enduring attorneys do not serve records and accounts on applicant within seven days, the Tribunal is to provide copies of records and accounts filed with it to applicant at enduring attorneys' expense

Summary of Tribunal's decision:

The Tribunal previously made an order under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) requiring the donees under an enduring power of attorney to file with the Tribunal and serve on the applicant copies of all records and accounts kept by the donees of dealings and transactions made by them in connection with the enduring power of attorney. The donees filed copies of the documents with the Tribunal, but did not serve copies of the documents on the applicant.
The Tribunal convened a directions hearing before a judicial member and the member who made the order for the filing and service of the copies of the documents in order to consider whether the judicial member should issue a certificate under s 86(2)(c) of the State Administrative Tribunal Act 2004 (WA) to enable civil enforcement of the order in the Supreme Court of Western Australia and whether a declaratory order should be made under s 95(3)(b) of the State Administrative Tribunal Act 2004 which would have the consequence that…

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 NM and SGF

Details

AGLC: NM and SGF [2014] WASAT 103
Case: [2014] WASAT 103
Decision Date: 27 AUGUST 2014

CaseChat Overview and Summary

NM and SGF is a case involving an application for review of an order made by the Tribunal under s 73 of the State Administrative Tribunal Act 1994 (Qld). The dispute concerns an enduring power of attorney and the records and accounts kept by the attorneys in relation to their dealings and transactions under the power. The applicants sought orders to have the Tribunal's decision reviewed, amended or varied, and to impose a confidentiality agreement on the applicant and require the applicant to inspect the records and accounts at the Tribunal. The applicants also sought the issuance of a certificate to enable civil enforcement of the order and a declaratory order so that an offence would be committed upon further failure to comply with the order.

The central legal issues were whether the Tribunal had the power to order that records and accounts be filed with it but not served on the applicant, whether the Tribunal had the power to review, amend or vary its final order, whether a confidentiality agreement should be imposed on the applicant, whether the applicant should be required to inspect the records and accounts at the Tribunal, whether a certificate should be issued to enable civil enforcement of the order, and whether a declaratory order should be made so that an offence would be committed upon further failure to comply with the order.

The Tribunal held that, while the donees had failed to comply with the order to serve the records and accounts on the applicant, it was not appropriate to issue a certificate to enable civil enforcement of the order. Instead, the preferable course was to extend time for compliance with the order by seven days and, if the applicant notified the Tribunal of non-compliance, to require the documents filed with the Tribunal to be copied by the Tribunal at the donees' expense and provided by the Tribunal to the applicant. The Tribunal also held that it had the power to review, amend or vary its final order, but that it was not appropriate to impose a confidentiality agreement on the applicant or require the applicant to inspect the records and accounts at the Tribunal. The Tribunal found that it did not have the power to make a declaratory order so that an offence would be committed upon further failure to comply with the order.

The Tribunal varied the order of 2 April 2014 by extending the time for compliance with the order for seven days and, if the applicant notifies the Tribunal that there has been non-compliance with the order after that period, then for there to be an order under s 73(1) of the SAT Act requiring the documents filed with the Tribunal to be copied by the Tribunal at the donees' expense and provided by the Tribunal to the applicant. The Tribunal dismissed the applicants' application for review to the extent that it sought orders to impose a confidentiality agreement on the applicant, require the applicant to inspect the records and accounts at the Tribunal, issue a certificate to enable civil enforcement of the order, and make a declaratory order so that an offence would be committed upon further failure to comply with the order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 95 of the SAT Act states as follows:Failing to comply with decision(1)A person who fails to comply with a decision of the Tribunal commits an offence. Penalty: $10 000.(2)Subsection (1) does not apply if, or to the extent that, the decision is a monetary order.(3)Subsection (1) does not apply in relation to a decision unless (a)the Tribunal, in the decision, declares that subsection (1) applies; or(b)after a person fails to comply with the decision, the Tribunal makes an order declaring that subsection (1) applies and the failure continues after notice of that order is served on the person.(4)If the Tribunal made the decision without giving a person an opportunity to be heard, subsection (1) only applies to that person on the person being given personally or in accordance with subsection (5) (a)a copy of the decision that a judicial member or the executive officer has certified to be a true copy; and(b)a copy of this section.(5)If the Tribunal is satisfied that it is not possible or appropriate for a person to be personally given the documents referred to in subsection (4), the Tribunal may specify another method for service of the documents on the person under that subsection. The donees have failed to comply with the order of the Tribunal made on 2 April 2014 insofar as it requires them to serve on the applicant all records and accounts kept by them of dealings and transactions made by them in connection with the power from the date of execution of the enduring power of attorney until 2 April 2014. They have failed to comply with the order for two months. However, although this is a case in which a certificate could be issued under s 86(2)(c) of the SAT Act by a judicial member stating that the decision is appropriate for filing in the Supreme Court to enable its civil enforcement as though it were a decision of the Supreme Court, in our view, that would be not a preferable outcome in all the circumstances. Given that the donees have filed, as they have said to the Tribunal in their evidence, all records and accounts kept by them of dealings and transactions made by them in connection with the enduring power of attorney, and having regard to the Tribunal's statutory objectives in s 9 of the SAT Act and, in particular, to minimise the costs to the parties and to act as speedily and with as little formality and technicality as is practicable, the preferable course is to extend time for compliance with the order made on 2 April 2014 by seven days and, if the applicant notifies the Tribunal that there has been noncompliance with the order after that period, then for there to be an order under s 73(1) of the SAT Act requiring the documents filed with the Tribunal to be copied by the Tribunal at the donees' expense and provided by the Tribunal to the applicant. Section 73(1) of the SAT Act states as follows:A power of the Tribunal to make an order or give a direction (the primary power) includes the power to make the order subject to conditions and the power to make any ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power.

Ratio Decidendi

Legal Principle Established

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