NM and SGF
[2014] WASAT 103
•27 AUGUST 2014
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 a criminal offence would be committed upon further failure to comply with the order after service of the declaratory order.
At the directions hearing, the donees sought a variation of the order so that they would not have to serve copies of the documents on the applicant or the imposition of a confidentiality agreement on the applicant. One of the donees also contended that the applicant should be required to inspect the documents at the Tribunal, because he was required to inspect the applicant's application and supporting documents at the Tribunal.
The Tribunal determined that it does not have power to vary the order so that the donees would not have to serve copies of the documents on the applicant and that, even if it had this power, it would decline to vary the order in the exercise of discretion. The Tribunal determined that, if it had power to impose a confidentiality requirement on the applicant, it would decline to do so in the exercise of discretion. The Tribunal also determined that the applicant should not be required to inspect the documents at the Tribunal as s 109(1)(a) of the Guardianship and Administration Act 1990 expressly contemplates an order for service, whereas the practice adopted by the Tribunal in respect of applications made under s 112(4) of the Act (pursuant to which the donee was permitted to inspect the application and supporting documents) seeks to ensure the confidentiality of documents concerning a person who is the subject of proceedings under the Act.
The Tribunal determined that although a certificate could be issued by a judicial member enabling civil enforcement of the order, the preferable course, given that copies of all records and accounts had been filed by the donees and having regard to the Tribunal's statutory objectives, is to extend time for compliance with the order for seven days and to make an ancillary order, if the donees failed to comply with the order within the extended time period, for the copying of the documents by the Tribunal at the donees' expense and provision of the copies to the applicant.
Given that the donees had partially complied with the order and are likely to comply with the outstanding part of the order, the Tribunal also determined that it was not appropriate to make a declaratory order with the effect that an offence would be committed upon further failure to comply after service of the declaratory order. However, the Tribunal observed that where a member makes an order under s 109(1)(a) of the Guardianship and Administration Act 1990, the member should also consider at that time whether to declare in the order that s 95(1) of the State Administrative Tribunal Act 2004 applies.
Finally, the Tribunal noted that the procedure adopted in this case of convening a directions hearing before a judicial member and the member who made an order for filing and service of records and accounts, in order to consider whether a certificate by a judicial member should be issued and whether a declaratory order should be made, should be followed by the Tribunal in future cases in which there is a failure to comply with an order for filing and service of records and accounts.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondents : In Person
Solicitors:
Applicant: N/A
Respondents : N/A
Case(s) referred to in decision(s):
KS [2008] WASAT 29
Legal Profession Complaints Committee and Gandini [2013] WASAT 31
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 2 April 2014, Member Felicity Child made an order on an application pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) by Ms NM (applicant) for intervention in an enduring power of attorney dated 9 June 2005 by which the applicant's mother, Mrs MAF (donor), appointed the applicant's brothers, Mr SGF and Mr EF (donees), jointly as her enduring attorneys. The order made by the Tribunal was as follows:
Pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA), [SGF] and [EF] (the attorneys) must by 30 May 2014, file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the attorneys of dealings and transactions made by them in connection with the power from the date of execution of the enduring power of attorney to the date of this order.
The Tribunal also directed that the records and accounts ordered to be produced had to be filed in an indexed and paginated bundle, in chronological or other logical order.
On 30 May 2014, the date for compliance with the order made on 2 April 2014 was extended on the application of the donees to 13 June 2014.
At around the time of the application for the extension of the order, the donor sadly passed away.
Ultimately, the donees filed three lever arch folders of documents with the Tribunal. However, they did not as required by the Tribunal's order of 2 April 2014 serve the documents on the applicant.
The Tribunal listed a directions hearing to take place before the Deputy President Judge Parry and Member Child, originally on 31 July 2014 and subsequently on 7 August 2014. The directions hearing was listed in order to consider two matters. First, whether a certificate should be issued by a judicial member of the Tribunal, pursuant to s 86(2)(c) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), stating that the decision made by the Tribunal pursuant to s 109(1)(a) of the GA Act on 2 April 2014 and varied on 30 May 2014, requiring service on the applicant of a copy of all records and accounts kept by the donees in connection with the enduring power of attorney, is appropriate for filing in the Supreme Court of Western Australia so as to enable enforcement of the decision as though it were a decision of the Supreme Court of Western Australia. The second matter on account of which the directions hearing was listed was to consider whether the decision made on 2 April 2014 should be the subject of an order, pursuant to s 95(3)(b) of the SAT Act, declaring that s 95(1) of the SAT Act applies to the decision so that an offence would be committed by the donees, contrary to s 95(1) of the SAT Act, if the failure to comply with the decision continues after notice of the order is served on the donees.
The donees subsequently indicated to the Tribunal that they would seek a variation of the order made on 2 April 2014 to no longer require them to serve the documents on the applicant. More recently, on 7 August 2014, the donees filed a document dated 6 July 2014 in which they seek that a confidentiality agreement be imposed on the applicant in relation to the records and accounts that they have filed.
At the hearing conducted on 7 August 2014, the donees each gave evidence on affirmation that the documents that they have filed with the Tribunal are, indeed, 'all records and accounts kept by the attorneys of dealings and transactions made by them in connection with the power from the date of execution of the enduring power of attorney to the date of [the] order', as required by the order made on 2 April 2014.
Issues for determination
The following four principal issues arise for determination:
1)Should the order made on 2 April 2014 be varied to no longer require the donees to serve the documents that they have filed with the Tribunal on the applicant?
2)Should a confidentiality agreement be imposed on the applicant in relation to the documents?
3)Should the applicant be required to inspect the documents at the Tribunal?
4)Should a certificate be issued under s 86(2)(c) of the SAT Act enabling civil enforcement of the order made on 2 April 2014 or a declaratory order made under s 95(3)(b) of the SAT Act so that an offence would be committed upon further failure to comply with the order made on 2 April 2014?
We will consider and determine these issues in turn.
Should the order be varied?
As noted earlier, the donees propose a variation to the order made on 2 April 2014, such that they are not required to serve on the applicant a copy of all records and accounts kept by them of dealings and transactions made by them in connection with the enduring power of attorney. The donees indicated to the Tribunal that they have no difficulty with the documents being inspected by the applicant at the Tribunal. However, they are concerned about the confidentiality of the documents.
In our view, the Tribunal does not have power, in the circumstances of this case, to vary the order made on 2 April 2014 so as to remove the requirement for service of the records and accounts on the applicant, for two reasons, and, in any case, even if the Tribunal had the power to do so, we would decline to do so in the exercise of discretion.
The first reason on account of which we consider that the Tribunal does not have power to vary the order lies in the terms of the enabling Act itself. The enabling Act pursuant to which the applicant brought this proceeding is s 109(1)(a) of the GA Act. That provision states as follows:
A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order
(a)requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power[.]
In this case, the Tribunal has already determined that the applicant has 'a proper interest in the matter' and that the discretion to make an order under s 109(1)(a) of the GA Act should be exercised so as to make an order. In our view, where the Tribunal has determined that an applicant has a proper interest in the matter and that an order under s 109(1)(a) should be made, it does not have power to order only that the records and accounts be filed, but not also served upon the applicant. This is because the enabling Act in s 109(1)(a) of the GA Act itself contemplates that the order, if made, will require both the filing of the records and accounts with the Tribunal and service of the records and accounts on the applicant who is a person with a proper interest in the matter.
Secondly, the Tribunal, having made a final decision under s 109(1)(a) of the GA Act, does not have power to review, amend or vary its own order except where it is authorised by law to do so. The Tribunal cannot entertain what is, in effect, an appeal from its own orders. There are only three circumstances in which the Tribunal is authorised to review, amend or vary its final orders.
The first is under s 83 of the SAT Act which enables the Tribunal to correct mistakes and, in particular, a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures, or a material mistake in the description of any person, thing or matter referred to in the decision, or a defect of form.
The second circumstance in which the Tribunal may review, amend or vary its final order, as recognised in Legal Profession Complaints Committee and Gandini [2013] WASAT 31 at [6], is where there has been a denial of procedural fairness in the making of the order.
Neither of these circumstances is said by the donees to exist and there is no basis before us to support such a contention.
The third circumstance in which the Tribunal is authorised to review, amend or vary its final order is where an application for review is made by a Full Tribunal under s 17A of the GA Act. Such an application must be made within 28 days of a decision to which the section applies (see s 17A(2) of the GA Act). No application for review under s 17A has been made, and any such application would be well out of time, although s 17A(2) of the GA Act confers a discretion on a Full Tribunal to extend time if it considers that there is good reason for making the request outside the time.
However, in any case, even if the Tribunal had power to modify or vary the order to remove the requirement for service of the records and accounts on the applicant, it would decline to do so in the exercise of discretion. The application was made by the applicant who is a person found to have a proper interest in the matter. The Tribunal has no independent role, absent an application by a person with a proper interest in the matter, in relation to the regulation or oversight of enduring powers of attorney.
Moreover, contrary to the expectation expressed by the donees in their submissions to the Tribunal, the Tribunal has no role in reviewing records and accounts filed with it under s 109(1)(a) of the GA Act, and no role in taking any action in relation to those records and accounts. To modify the order so as to remove the requirement for service on the applicant would render the order without any practical utility. The Tribunal would not do so in the exercise of discretion.
Should a confidentiality agreement be imposed on the applicant?
As noted earlier, the donees indicated to the Tribunal that they do not oppose the applicant inspecting the records and accounts that they have filed with the Tribunal. However, they are concerned with the applicant having the records and accounts unless a form of confidentiality agreement were imposed on her.
The donees gave evidence that their mother was always very adamant about her financial affairs remaining private. They also gave evidence that the applicant and her husband have 'on many occasions in the past proven that they are incapable of keeping these matters or any other personal family matters private'. They say that this has been an 'ongoing issue from my late mother in the past and over the years has caused issues for all of us siblings'. As examples, the donees said that the applicant has disclosed personal details of their mother's will to three carers of their mother and that the applicant has in recent times been in contact with their mother's lawyer and a cousin demanding that they meet to discuss personal matters, making accusations about the donees', or one of the donee's affairs, including matters to do with their mother's affairs.
The donees also expressed concern about the applicant having contacted the bank manager of their mother after their mother's passing and before they had had the opportunity to notify the bank manager of the donor's passing. They expressed concern that this was not the applicant's responsibility and that 'this caused unnecessary headaches as final bills and funeral payments could not be made'.
The donees submit that, for these reasons, the Tribunal should require the applicant to sign a confidentiality agreement that none of their mother's affairs will be discussed with anyone else. They expressed the view that this is not an unreasonable request in the circumstances of the case.
The applicant denies the allegations made by her brothers that she has disclosed personal matters outside the family. It is unnecessary, in our view, to resolve whether that is or is not the case.
It is not entirely clear to us whether the Tribunal has power to require a person who has a proper interest in the matter and on whom the Tribunal has determined records and accounts kept by donees of dealings and transactions made by them in connection with an enduring power of attorney should be served, to be subject to a confidentiality agreement. However, assuming that the Tribunal has such a power, we would decline to impose a confidentiality agreement requirement on the applicant for the following six reasons.
First, the applicant has been found to have a proper interest in the matter.
Secondly, concerns about the donor's privacy and the confidentiality of her financial affairs are no longer of any great significance since her passing.
Thirdly, and in any case, accepting that the donor was adamant about her financial affairs remaining private, that does not necessarily mean that she wanted her financial affairs to remain private from her children, and certainly it does not mean that she wanted her financial affairs to remain private from her children including the applicant whose stated purpose is to ensure that her mother's enduring power of attorney was properly managed by the donees.
Fourthly, having been found to have a proper interest in the matter, the applicant is entitled to the documents and to obtain whatever advice she considers appropriate in relation to them so as to ensure proper oversight of the operation of the enduring power of attorney. We note in this regard that the applicant wishes to consult a lawyer in relation to the documents and have them reviewed by a lawyer.
Fifthly, having regard to the supervisory role of the Tribunal in relation to enduring powers of attorney even after the death of the donor (see KS [2008] WASAT 29) it is necessary in order to give proper effect to an order under s 109(1)(a) of the GA Act to enable the applicant who has been found to have a proper interest to obtain appropriate advice and take appropriate legal or other action in relation to the financial affairs of the donor.
Finally, none of the matters related by the donees about the conduct of the applicant, if correct, cause the Tribunal any concern or warrant the imposition of a confidentiality agreement requirement. The fact that the applicant has, or may have, discussed her mother's finances or her mother's will with carers, does not bear on these proceedings or warrant a confidentiality requirement for the records and accounts under the enduring power of attorney. The fact that the applicant, if it be the fact, spoke to her mother's lawyer and demanded to meet to discuss personal matters of her mother, and that she made accusations about the conduct of her mother's affairs, hardly demonstrates any inappropriate action on her part. It is entirely to be expected that a person with a proper interest in her mother's affairs would want to satisfy themselves that her mother's financial affairs as managed by the donees were appropriately dealt with, particularly when the financial affairs are significant and the donor had dementia in the later years of her life. In this case, it is apparent that the financial affairs of the donor as managed by the donees were significant, at least in terms of the sale of properties. Contacting the bank immediately after her mother's passing was appropriate and does not warrant a confidentiality requirement. Indeed, it would have been inappropriate and unlawful for the donees to exercise the enduring power of attorney after the donor's passing, even if it caused 'headaches'.
Should the applicant be required to inspect the documents at the Tribunal?
It was submitted by Mr SGF that, because he was required to attend the Tribunal to inspect the application made by the applicant in this matter, the applicant should be required to attend the Tribunal to inspect the documents that he and his co-donee have produced to the Tribunal.
However, the requirement that Mr SGF have access to the application and the documents accompanying it by inspection at the Tribunal, rather than having a copy of those documents sent to him or taken away by him, was made pursuant to s 112(4) of the GA Act at a time when the donor was still alive. The requirement that Mr SGF attend the Tribunal to inspect the documents reflects the contemplation of s 112(4) of the GA Act and the Tribunal's consequent practice of ensuring confidentiality of documents concerning a person who is the subject of proceedings under the GA Act. In contrast, s 109(1)(a) of the GA Act expressly contemplates an order for service, as well as filing, of all records and accounts kept by the donee of dealings and transactions made by the donee in connection with an enduring power of attorney.
The applicant should therefore not be required to inspect the documents at this Tribunal.
Should a certificate by a judicial member be issued or a declaratory order be made?
Section 86 of the SAT Act states as follows:
Decisions (not monetary orders), enforcement of
(1)If, or to the extent that, a decision of the Tribunal is not a monetary order, it may be enforced under this section.
(2)A person seeking to enforce a decision under this section may file in the Supreme Court
(a)a copy of the decision that a judicial member or the executive officer has certified to be a true copy; and
(b)the person’s affidavit as to the non-compliance with the decision; and
(c)a certificate from a judicial member stating that the decision is appropriate for filing in the Supreme Court.
(3)No charge is to be made for filing a copy of a decision, an affidavit, or a certificate under this section.
(4)On filing, the decision is taken to be a decision of the Supreme Court, and may be enforced accordingly.
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.
We consider that an ancillary order operative if the applicant notifies the Tribunal of noncompliance with the order made on 2 April 2014 after a further period of seven days is appropriate for achieving the purpose for which the Tribunal may exercise the primary power, namely, in this case, the making of an order under s 109(1)(a) of the GA Act.
An order should also be made enabling the applicant to inspect the documents filed by the donees, pursuant to the order made on 2 April 2014, so that she may satisfy herself that documents served on her, in accordance with the extended time for compliance with the order made on 2 April 2014, include all documents that have been filed with the Tribunal.
As the donees have complied with the part of the order made on 2 April 2014 requiring them to file copies of all records and accounts with the Tribunal and as they are now likely to comply with the outstanding part of the order requiring them to serve copies of the records and accounts on the applicant, this is not a case in which it would be appropriate for a declaratory order to be made under s 95(3)(b) of the SAT Act. Such a declaratory order would have the effect that a criminal offence would be committed by the donees, contrary to s 95(1) of the SAT Act, if the failure to comply with the order requiring them to serve copies of the records and accounts on the applicant continues after notice of the declaratory order is served on them. It is unlikely that the donees will continue to fail to comply with the outstanding part of the order under s 109(1)(a) of the GA Act and therefore unlikely that any criminal offence would be committed.
Tribunal's procedure where there is noncompliance
Finally, we note that the procedure adopted in this case of convening a directions hearing before a judicial member and the member who made an order under s 109(1)(a) of the GA Act to consider whether a certificate by a judicial member should be issued under s 86(2)(c) of the SAT Act and whether a declaratory order should be made under s 95(3)(b) of the SAT Act, should be followed by the Tribunal in future cases where there is a failure to comply with an order under s 109(1)(a) of the GA Act.
A member making an order under s 109(a)(a) of the GA Act should also consider at the time when the member makes the order whether to declare in the order, under s 95(3)(a) of the SAT Act, that s 95(1) of the SAT Act applies. A member may consider that it is appropriate to make such a declaration in the order where the member considers that it is unlikely that the order will or will otherwise be complied with. For the purposes of s 95(4) of the SAT Act, the Tribunal would always give a donee under an enduring power of attorney 'an opportunity to be heard' in an application for intervention in an enduring power of attorney under s 109(1) of the GA Act by giving the donee notice of the hearing and by hearing evidence and submissions from the donee if the donee attends the hearing.
Orders
For these reasons the Tribunal makes the following orders:
1.By 14 August 2014 Mr [SGF] and Mr [EF] must serve on the applicant a copy of all of the documents filed by them with the Tribunal in accordance with order 1 made on 2 April 2014 and varied on 30 May 2014.
2.Pursuant to s 73(1) of the State Administrative Act 2004 (WA) if the applicant advises the Tribunal that order 1 has not been complied with, the Tribunal is to provide a copy of the documents filed by Mr [SGF] and Mr [EF] pursuant to order 1 made on 2 April 2014 and varied on 30 May 2014 to the applicant.
3.Mr [SGF] and Mr [EF] are to jointly and severally pay to the Tribunal the cost of photocopying the documents referred to in order 2 in accordance with item 2 of schedule 20 of the State Administrative Tribunal Regulations 2004 (WA) within 28 days of an account being sent to them by the Tribunal.
4The applicant may inspect the documents filed by Mr [SGF] and Mr [EF] pursuant to order 1 made on 2 April 2014 and varied on 30 May 2014.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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