OR - [2024] WASAT 2 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   OR [2024] WASAT 2
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   24 AUGUST 2023, 31 OCTOBER 2023 AND 27 NOVEMBER 2023
DELIVERED          :   18 JANUARY 2024
FILE NO/S:   GAA 3472 of 2023
GAA 3841 of 2023
OR
Donor
VR
Donee

Catchwords:

Enduring power of attorney - Donor with capacity - Application for records and accounts - Application for audit - Concurrent proceedings in Family Court of Western Australia - Obligations of an attorney - In connection with the power - Reasonable diligence - Protect the interests of donor - Conflict of interest - Separation - Costs - Duty of disclosure in Family Court

Legislation:

Family Court Rules 2021 (WA), Pt 13, r 197, r 199(2)
Family Law Act 1975 (Cth), s 79, s 121
Guardianship and Administration Act 1990 (WA), s 107(1), s 107(1)(a), s 109(1), s 109(1)(a), s 109(1)(b), Pt 9
State Administrative Tribunal Act 2004 (WA), s 62(1)(c), s 62(3), s 87(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Donor	:	In Person
Donee	:	Solicitor A

Solicitors:

Donor	:	N/A
Donee	:	Law Firm A

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

AI & Anor and OF [2008] WASAT 87
BFO & ORS and KPW [2014] WASAT 68
DW and JM [2006] WASAT 366
EW [2010] WASAT 91
KS [2008] WASAT 29
Medical Board of Western Australia and Kyi [2009] WASAT 22
PHQ and LPQ [2015] WASAT 5
PT [2020] WASAT 147
SMM [2020] WASAT 85
Stanford v Stanford [2012] HCA 52

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

OR has the capacity to make his own decisions. He appointed his then wife, VR, as his attorney under an enduring power of attorney dated 5 October 2016 (EPA). OR alleges that VR later used the EPA to conduct four significant financial transactions, without his consent or knowledge, that were against his interests.
OR filed this application with the Tribunal on 2 August 2023 to seek orders requiring VR to file a copy of all records and accounts kept of the dealings and transactions made in connection with the EPA,[1] and an order requiring an audit of those accounts and records.[2]
[1] Guardianship and Administration Act 1990 (WA) (GA Act), s 109(1)(a).
[2] GA Act, 109(1)(b).
OR was arrested and incarcerated in early 2018. As the parties were married, OR believed that VR was managing their assets in their joint best interests. From the period of OR's arrest until mid-2021, VR continued to pay joint bills and manage the parties' finances.
VR gave evidence that she considered that the marriage was over at the time of the arrest in 2018. She communicated this to OR in 2021 by arranging for him to be served with applications for divorce and financial settlement in the Family Court of Western Australia (Family Court).
Around five months after OR's arrest in 2018, VR used the EPA to transfer around $96,500 from OR's bank accounts into a bank account controlled by her. She also directed OR's tax refunds for three years and the rental income from one of the parties' three properties to be deposited into her account (First Transaction).
In late 2020, a month after OR was convicted of the charges, VR used the EPA to cause OR to resign his position as sole director and secretary of the corporate trustee (Company) of the parties' discretionary family trust (Trust). VR appointed herself as a sole director and secretary of the Company, which gave her the legal authority to make decisions as the guiding mind of the Company and as the trustee of the Trust (Second Transaction).
One week later, VR caused the trust deed of the Trust to be varied by removing OR as the appointor and guardian of the Trust and appointing herself in those roles (Third Transaction). The Second and Third Transactions had the effect of putting the assets of the Trust, currently valued at around $1 million, into the sole control of VR.
OR became aware of the First, Second and Third Transactions in mid2021 following receipt of a letter from VR's family law solicitor [Solicitor A] of [Law Firm A], disclosure documents and service of the Family Court applications. One month later at a conciliation conference at the Family Court, VR resigned as OR's enduring attorney and undertook not to use the EPA.
Later in 2021, VR provided the bank which held the Trust's bank account with the ASIC documents that confirmed her position as sole director of the Company and the varied Trust deed to have OR's name removed from the Trust's bank account[3] (Fourth Transaction). VR was then able to control the Trust's bank account and use those funds to purchase a new vehicle and pay part of her legal fees to Law Firm A in respect of the Family Court proceedings.
[3] This account is held in the name of the Company.
A directions hearing was held on 24 August 2023 and the application was heard on 31 October 2023 and 27 November 2023. OR attended the hearings by video-link from prison and was selfrepresented. VR and Solicitor A attended the hearings by telephone.
Because OR and VR are parties to proceedings in the Family Court, I have anonymised all identifying information in order to maintain the confidentiality of the Family Court proceedings.[4] For the same reasons, I will also make an order pursuant to s 62(1)(c) and s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) prohibiting the publication of any information which would identify OR and VR.
[4] Family Law Act 1975 (Cth), s 121.

The law in relation to enduring powers of attorney

Enduring powers of attorney are created by Pt 9 of the Guardianship and Administration Act 1990 (WA) (GA Act). The Tribunal has the power to supervise the conduct of donees of the power to ensure that they fulfill their obligations to act diligently and protect the donor's interests.[5] This jurisdiction is available to the Tribunal whether the donor of the power is living or not, and whether they have capacity or not.[6]
[5] KS [2008] WASAT 29 (KS) at [26] and [47]; EW [2010] WASAT 91 (EW) at [17]; SMM [2020] WASAT 85; GA Act, s 107.
[6] KS [31] – [37] and [47] – [59]; EW at [18].
As an EPA is a private agreement between the donor and donee, the case law sets out the clear requirement the Tribunal will only scrutinise the transactions undertaken pursuant to the power if there is something that requires an inquiry, or there is a sufficient basis for making an order for an audit of the accounts and records.[7] Mere suspicion is not enough.[8]
[7] EW at [94] and [101].
[8] PT [2020] WASAT 147 at [33].
The relationship between donor and donee is an agency relationship which is fiduciary in nature.[9] A fiduciary is defined as:
A person who is under an obligation to act in another's best interests to the exclusion of the fiduciary's own interest. A fiduciary cannot use his or her position, knowledge or opportunity to the fiduciary's own advantage, or have a personal interest in, or inconsistent engagement with, a third party, unless fully informed and free consent is given[.][10]
[9] Dal Pont, Powers of Attorney (Third edition) 2020 Chapter 1.
[10] Butterworths, Australian Legal Dictionary (1997) at 471, cited in DW and JM [2006] WASAT 366 (DW and JM) at [29].
Section 107(1) of the GA Act prescribes the obligations of donees as follows:
(1)The donee of an enduring power of attorney —
(a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;
(b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
Penalty applicable to paragraph (b): $2 000.
Thus, the donee must diligently act to protect the donor's interests. The donee cannot act in their own interests and must avoid conflict with the donor's interests. This is known as the 'conflict rule'.
The donee must not use their position to advance their own interests or profit from a transaction, although a donee can profit from a transaction only if the donor has provided their fully informed consent.[11] This is known as the 'profit rule'. The duty to avoid conflict and not profit are hallmarks of the fiduciary relationship.[12]
[11] DW and JM at [5] and [40], KS at [52]; AI & Anor and OF [2008] WASAT 87 at [125].
[12] DW and JM at [5] and [40].
This application was made under s 109(1)(a) and s 109(1)(b) of the GA Act. Section 109(1) relevantly provides:
(1)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;
(b)requiring such records and accounts to be audited by an auditor appointed by the Tribunal and requiring a copy of the report of the auditor to be furnished to the Tribunal and the applicant for the order; or
(c)revoking or varying the terms of an enduring power of attorney, appointing a substitute donee of the power or confirming that a person appointed to be the substitute donee of the power has become the donee.
The orders the Tribunal can make under s 109(1)(a) and (b) can only compel a party to produce documents and records that already exist,[13] and if there is a sufficient basis, to order that an audit of the information contained in those documents occur. Therefore, the powers of the Tribunal are limited and any remedy or cause of action that might arise from the records or accounts, such as for a breach of fiduciary duty, must be pursued in another jurisdiction.
[13] BFO & ORS and KPW [2014] WASAT 68 (BFO & ORS and KPW) at [31].

Does OR have a proper interest in the matter?

Section 109(1) requires the applicant to have a 'proper interest' in the matter in order to seek an order pursuant to that section. Any person who raises a genuine concern that an attorney has failed to comply with their obligations is likely to be deemed to have a proper interest.[14]
[14] BFO& ORS and KPW at [28].
In this matter, OR has capacity, is the donor of the EPA and transactions were undertaken by the donee without his knowledge.[15] I find that OR has a proper interest in the matter and is entitled to seek orders pursuant to s 109(1)(a) and (b).
[15] KS at [48] – [49] and [58].

Were the four transactions made 'in connection with the power'?

The First and Second Transactions were clearly made in connection with the power as VR gave evidence that she used the EPA to affect those Transactions.[16]
[16] ts 5 and 6, 27 November 2023.
I have not reviewed the varied Trust deeds so I cannot be certain whether or not VR used the EPA to vary the Trust deeds. However, I am satisfied that the Third Transaction was made in connection with the power, as it was only possible to conduct the Third Transaction after the Second Transaction was completed.
The Fourth Transaction was undertaken using the ASIC documents created following the Second Transaction and the varied Trust deed resulting from the Third Transaction. VR was only able to undertake the Fourth Transaction because she had completed the Second and Third Transactions.
I therefore find that the First, Second, Third and Fourth Transactions were made in connection with the power.

Evidence and material before the Tribunal

I have had regard to and considered the following documents filed in the proceedings:
(a)the application filed by OR on 2 August 2023 and the attached submissions;
(b)enduring power of attorney document dated 5 October 2016 appointing VR as the sole attorney and the parties' son as the substitute attorney;
(c)letters from OR to the Tribunal containing submissions dated 26 August 2023, 4 September 2023 and 24 November 2023;
(d)submissions and chronology filed by OR on 26 October 2023;
(e)letter from Solicitor A dated 30 August 2023, which attaches a letter dated 11 June 2021 to advise that VR and the parties' son resigned from their positions as attorney and substitute attorney;
(f)letter from Solicitor A dated 4 October 2023; and
(g)letter from Solicitor A dated 26 October 2023 which enclosed:
(i)VR's schedule of disclosure documents dated 26 October 2023 which is 20 pages in length and listing around 400 documents (Disclosure List);
(ii)an asset and liability schedule dated 16 October 2023;
(iii)copies of the lease agreements for the parties' two investment properties;
(iv)copies of the certificates of title for the three properties owned by the parties; and
(v)authority to provide information signed by VR on 31 October 2023.
I also had regard to the oral evidence and submissions given during the course of the hearings by each of:
(a)OR; and
(b)VR and Solicitor A.

Evidence at hearings

OR and VR were married for 44 years. Their current joint matrimonial asset pool is valued at $2.8 million.[17] OR says that VR sent him a letter in 2018 when he was incarcerated to advise that she had found an accountant to look after the Company and Trust, to ensure legal and taxation compliance (Accountant).[18] VR states that she does not recall telling OR this information.[19]
[17] ts 44, 31 October 2023.
[18] Submissions of OR filed with application, page 2.
[19] ts 3, 27 November 2023.
OR said he did not give the Company and Trust any more thought from that time on the basis that the parties were married.[20] OR says that VR continued to write to him to ask about bank and property details, and he encouraged her to use the EPA if the bank was restricting her access to his accounts.[21]

Separation

[20] ts 7, 31 October 2023.

[21] OR Chronology filed 26 October 2023, page 1.

VR gave evidence that she decided to separate from OR at the time of his arrest.[22] Around two months later, she sought a violence restraining order (VRO). VR gave evidence that obtaining the VRO was not an action on her part as she was advised to do so by the investigating police officers in the event that OR was granted bail.[23]

First Transaction

[22] ts 7 and 8, 31 October 2023 and ts 3, 27 November 2023.

[23] ts 8, 31 October 2023.

Around three months later, VR used the EPA to access two of OR's personal bank accounts and transfer around $96,500 to a bank account in her name.[24] OR says that VR arranged for OR's next three tax refunds to be deposited into her account, along with rental income from one of the parties' three properties.[25]
[24] ts 8 and 9, 31 October 2023.
[25] ts 9 and 10, 31 October 2023.
VR considers the allegations that she removed money from OR's account to be 'difficult' to understand because during their 44 years of marriage, the funds were always considered 'our money'.[26] VR gave evidence that the parties had many bank accounts that were being charged fees and an employee at the bank advised her to close and 'merge' the accounts.[27]
[26] ts 4, 27 November 2023.
[27] ts 17, 31 October 2023 and ts 4, 27 November 2023.
VR said she was advised by the bank that she could merge the accounts using an EPA, so she provided the EPA to the bank and 'they did the rest'.[28] VR gave evidence that she was acting in OR's best interests in closing the bank accounts because bank fees were being charged unnecessarily.[29]
[28] ts 4, 27 November 2023.
[29] ts 19 and 22, 27 November 2023.
OR explained that his review of the statements from VR's account showed some payments were made for joint expenses relating to the Company and the parties' real property. However, there were also many unexplained withdrawals, transactions and transfers to unidentified bank accounts.[30]

Second and Third Transactions

[30] ts 23, 31 October 2023.

In late 2020, VR used the EPA to cause OR to resign as the director and secretary of the Company.[31] OR asserts that VR prepared a resignation letter from himself and created minutes of the directors meeting which was attended by VR and the parties' son.[32] OR says the documents were lodged with ASIC three days later.[33]
[31] ts 5, 27 November 2023.
[32] Submissions of OR attached to application, page 1.
[33] OR Chronology filed 26 October 2023, page 2.
VR gave evidence that the Accountant advised her to use the EPA to undertake the Second Transaction as she needed to take control of the entities.[34]
[34] ts 5 and 6, 27 November 2023.
One week later, VR caused the Trust deed to be varied to remove OR as the appointor and guardian of the Trust and appoint herself in those roles.[35] OR submitted that VR signed his consent to vary the Trust deed using her own signature.[36] VR gave evidence that she used the EPA to undertake the Third Transaction 'on the advice of the accountant and the lawyer'.[37]
[35] ts 6, 27 November 2023, Disclosure list dated 26 October 2023, document 11.2 (Deed of Retirement and Appointment) and document 11.3 (Deed of Retirement and Appointment Variation).
[36] Submissions of OR attached to application, page 1.
[37] ts 6, 27 November 2023.
Solicitor A submitted that the Second and Third Transactions were performed on the advice of the Accountant because OR was not able to maintain and manage the ongoing tax affairs of the Company and the Trust because of his incarceration.[38]
[38] ts 43, 31 October 2023.
I asked VR why, if the Transactions were conducted on the advice of the Accountant, she did not inform OR that the transactions were occurring.[39] VR stated that her assumption was that the Accountant would let Solicitor A know, and then Solicitor A would inform OR.[40]
[39] ts 5, 27 November 2023.
[40] ts 6, 27 November 2023.
Solicitor A explained that while VR did not specifically discuss the Second and Third Transactions with OR before they occurred, for around six months prior, multiple requests were made to OR to provide an authority to allow VR to manage the taxation obligations of the Company and the Trust.[41] OR did not respond, so VR undertook the Second and Third transactions on advice and in the belief that this was in OR's best interests so that he would not acquire a taxation debt or penalties.[42]

Family Court, disclosure documents and resignation of donee

[41] ts 5 and 22, 27 November 2023.

[42] ts 20, 27 November 2023.

Shortly after OR was sentenced in early 2021, VR filed the applications in the Family Court for divorce and property settlement.[43] Over the next few months OR received disclosure documents from Law Firm A in accordance with the Rules of the Family Court.[44]
[43] ts 12, 31 October 2023.
[44] Family Court Rules 2021(WA) (Rules), Pt 13.
I note that parties to Family Court proceeding have an ongoing obligation to the Court and to each other party to provide full and frank disclosure of all information relevant to that party's financial circumstances in a timely manner.[45] The Disclosure List evidences that VR was providing disclosure documents to Law Firm A from March 2018 onwards.
[45] Rules, r 197 and r 199(2).
The parties attended a conciliation conference at the Family Court in mid-2021. OR asked VR to use the EPA to do two things – reverse the Second and Third Transactions[46] and pay the barrister he wished to retain for his appeal against his conviction.[47] VR did not agree to do this and gave evidence that OR 'basically accused [her] of stealing'.[48] She resigned from her position as donee and instructed Solicitor A to send a letter shortly thereafter to confirm the resignation and that she was no longer willing to assist OR with his personal finances.[49]

Fourth Transaction

[46] Submissions of OR attached to application, page 2. OR Chronology filed 26 October 2023, page 3.

[47] ts 10, 27 November 2023.

[48] ts 13, 27 November 2023.

[49] ts 14, 31 October 2023. Letter from Law Firm A to OR dated 11 June 2021.

In late 2021, in order to remove OR's name from the Trust's bank account, VR provided the bank with documents to confirm she was the sole director of the Company and the varied Trust deed.[50] OR gave evidence that shortly after this Transaction, $105,000 was withdrawn from the Trust's bank account and income producing shares owned by the Trust were sold.[51] OR states VR used joint funds for her own personal uses, including the payment of her legal fees.[52]
[50] ts 17 – 19, 31 October 2023.
[51] Submissions of OR attached to application, page 2.
[52] ts 18, 31 October 2023.
VR confirmed that she purchased a new car with these funds, as the parties replaced their vehicles at regular intervals throughout the marriage.[53] Orders were made by the Family Court in March 2023 to regulate VR's access to the Trust's bank account.[54] Solicitor A stated that this order was made by consent.[55]
[53] ts 18, 31 October 2023.
[54] ts 19, 31 October 2023.
[55] ts 19, 31 October 2023.
When OR realised in early 2022 that he was no longer receiving the statements for the Trust's bank account, he wrote to the Bank to ask why. The following occurred in respect of this Transaction:
(a)in late 2021, VR provided the ASIC documents and varied Trust deed to the bank to remove OR's name from the Trust's bank account;[56]
(b)since that time, VR is the only party who has received statements directly from the bank starting from statement number 9.[57] Statement number 9 recorded transactions for the six months from 1 July to 31 December 2021;
(c)OR wrote to the bank in early 2022 as he had not received a statement;
(d)in August 2022, the bank responded to OR's query to advise that VR had provided the documents to the bank to remove OR's name from the Trust's bank account;[58]
(e)in October 2022, OR was provided with statement number 10 by Law Firm A by way of disclosure. This statement recorded the transactions on the account dated 1 January to 30 June 2022;[59]
(f)in January 2023, OR was provided with statements number 9 to 11 (recording transactions from 1 July 2021 to 31 December 2022) by way of disclosure;[60] and
(g)in October 2023, just prior to the first hearing, OR was provided with statement number 12, which recorded transactions from 1 January to 30 June 2023.[61]
[56] ts 14, 31 October 2023.
[57] Disclosure List, 1.3.5.
[58] ts 14, 31 October 2023.
[59] Disclosure List, 1.3.4.
[60] Disclosure List, 1.3.5.
[61] Disclosure List, 1.3.6.
The result of the Fourth Transaction was that OR is no longer entitled to receive the statements directly and he is now dependent on the provision of disclosure. OR was not aware of the transactions that occurred on the Trust's bank account from 1 July to 31 December 2021 until he was provided with statement number 9 in January 2023, 18 months after the transactions occurred.

Ongoing effects of Transactions

OR expressed frustration about the 'flow on' effects of the transactions made by VR.[62] Specifically, his lack of access to joint funds to pay legal fees and the up-to-date and timely provision of relevant information.[63]

Lack of timely disclosure

[62] ts 22, 31 October 2023.

[63] ts 22, 31 October 2023.

As OR was no longer entitled to receive information directly from the Accountant following his removal as a director of the Company, VR granted an authority to OR to allow him to request information and documents directly from the Accountant after the first hearing.[64] OR reported at the second hearing that he was happy with the level of information that he was receiving.[65]
[64] ts 32 and 35 – 40, 31 October 2023 and ts 3, 27 November 2023.
[65] ts 3, 27 November 2023.
OR also had concerns about the shareholdings owned by the Trust, as he said that from his review of the documents he had received, he identified eight shareholdings that were missing.[66] In the interval between the first and second hearing, VR filed a further affidavit in the Family Court to explain the changes in the shareholdings that had occurred.[67] OR reported that he had no further questions about the shareholdings after reading the affidavit.[68]
[66] ts 14, 27 November 2023.
[67] ts 15, 27 November 2023.
[68] ts 16, 27 November 2023.
VR's view is that OR's claims about a lack of disclosure or information is frustrating because she has provided all documents and she has responded to all requests for information.[69] However, it was not until this application was filed and further information was provided to OR in the interval between hearings that OR was provided with the information he sought.
[69] ts 15, 31 October 2023.
OR expressed frustration at the first hearing that he did not become aware of the First, Second and Third Transactions until mid-2021. Solicitor A alleged that OR was attempting to mislead the Tribunal as the initial disclosure schedule was prepared and sent to OR on 7 September 2018 and had been updated frequently after that point.[70]
[70] ts 10, 31 October 2023.
I reviewed the Disclosure List and identified that VR provided disclosure documents to Law Firm A from March 2018 onwards. However, the earliest date that disclosure documents were provided to OR was mid-2021. I find that OR first became aware of the First, Second and Third Transactions in mid-2021, and this is evidenced in the Disclosure List.
The Fourth Transaction occurred nine months into the Family Court proceedings and the parties were required by the Rules to provide full and frank disclosure of all relevant information in a timely manner.[71] VR made changes to the details on a joint bank account without notice, and as a result, OR now has to wait up to three months following the issue of the statement to receive it from Law Firm A.
[71] Rules, r 197.
I find that OR's claims about the lack of disclosure of relevant documents have merit and exist as a direct result of VR's actions made in connection with the EPA. OR has therefore provided a reason why the Tribunal would scrutinise the transactions undertaken pursuant to the EPA, as his concerns rise above mere suspicion.[72]

Funds for legal fees

[72] EW at [94] and [101]. PT at [33].

OR has been unable to access funds to pay for legal advice for the Family Court proceedings and legal representation in his appeal in the Supreme Court.[73]
[73] ts 42 and 45, 31 October 2023 and ts 10, 27 November 2023.
I note that VR made an offer by letter of 11 June 2021 that if OR retained a private family lawyer and provided confirmation of same, VR would transfer $5,000 to the solicitors' trust account. However, OR gave evidence that he has been unable to engage a family lawyer, largely due to issues with communication and ongoing payment.[74] Further OR had actually asked VR at the conciliation conference in mid-2021 to pay a barrister he wished to retain for his appeal against his conviction.[75] No such payment was made[76] and OR was self-represented at his appeal.
[74] ts 45, 31 October 2023.
[75] ts 10, 27 November 2023.
[76] ts 22, 31 October 2023.
OR does not qualify for a grant of Legal Aid in the Family Court proceedings.[77] Solicitor A stated that they were 'surprised' that OR had not obtained Legal Aid, as he had received Legal Aid for his criminal trial so 'he does clearly qualify for Legal Aid'.[78] I noted that I would be surprised if OR would qualify for Legal Aid, in the context of a family law financial matter, in circumstances where the joint asset pool was approximately $2.8 million.[79]
[77] ts 45, 31 October 2023.
[78] ts 9, 27 November 2023.
[79] ts 9, 27 November 2023.
VR's proposal for the issue of paying legal fees was that OR should prepare a new EPA to allow an attorney to access OR's available personal funds and appoint a solicitor, but he was resisting doing this.[80] OR has around $17,000 in a bank account and around $250,000 in superannuation which he is unable to access because he is incarcerated.[81]
[80] ts 8, 10, 11, 12 and 19, 27 November 2023.
[81] ts 11, 27 November 2023.
Solicitor A confirmed that total legal fees VR had paid to Law Firm A was just over $72,000.[82] VR gave evidence that she had used joint funds and she has accessed her superannuation/pension to pay her legal fees.[83] VR did not agree for OR to be provided with joint funds for his legal fees because VR has had to 'dip into her pension' to contribute to the payment of her legal fees, so there is no reason why OR 'shouldn't be dipping into his as well'.[84] VR's view was that OR was 'drawing a line' between the funds held in his personal name and which were under his control,[85] and was pursuing access to joint funds when he should use the funds he was 'entitled to'.[86]
[82] ts 8, 27 November 2023.
[83] ts 8, 27 November 2023.
[84] ts 19, 27 November 2023.
[85] ts 19, 27 November 2023.
[86] ts 18, 27 November 2023.
Solicitor A confirmed that OR had applied to the Family Court requesting access to joint funds to pay legal fees (Cost Application). The next hearing on that issue is scheduled for April 2024.[87] Solicitor A explained that four separate hearings had already occurred in relation to the Cost Application.[88] Solicitor A stated that further hearings were required because OR's application had not provided sufficient detail, so he had been afforded additional opportunities to clarify the orders he is seeking.[89]
[87] ts 9, 27 November 2023.
[88] ts 9 and 11, 27 November 2023.
[89] ts 9, 27 November 2023.
The parties are also scheduled to attend a Readiness Hearing at the Family Court in April 2024. This type of hearing involves each party filing the detailed, comprehensive evidence they intend to rely upon at Trial. This evidence is often prepared with the assistance of a solicitor to ensure that the party has included all relevant information to support their case and the final orders they are seeking.
It may be difficult for OR to have his Trial documents filed in time for the Readiness Hearing if the Cost Application hearing is also scheduled in April 2024. He may have to file his Trial materials without the benefit of legal advice.

Using reasonable diligence to protect the interests of the donor

Section 107(1)(a) of the GA Act requires the donee to exercise their powers with reasonable diligence to protect the interests of the donor.[90] The donee cannot act in their own interests and must avoid conflict with the donor's interests.[91]

Did VR protect OR's interests or did she act in her own interests?

[90] GA Act, 107(1)(a).

[91] DW and JM at [5].

VR considers that she has acted in OR's best interests, and she was continuing to use 'our money' as they always had.[92] However, VR's evidence is that she considered that the marriage was over in early 2018 when OR was arrested. While her decision to separate at this time was not communicated to OR, her decision caused her interests to diverge from his from that point onwards.
[92] ts 4, 12 and 13, 27 November 2023.
As set out by the High Court in Stanford v Stanford:[93]
… the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship[.][94]
[93] Stanford v Stanford [2012] HCA 52 (Stanford v Stanford).
[94] Stanford v Stanford at [42].
By way of example, in 2019 when OR had no knowledge that the First Transaction had occurred or that VR considered that they were separated, OR voluntarily transferred a property owned in his sole name into VR's sole name.[95] That transaction was undertaken upon OR's assumption that the existing arrangements of the use of marital property continued, as he still considered at that time that it was 'our money'.
[95] ts 6 – 7, 27 November 2023.
Once VR decided in her mind that the marriage was over, the existing common use and enjoyment of the joint assets, or 'our money', was brought to an end, and the conflict of interest arose. VR then made the series of Transactions in connection with the EPA that I find were against OR's interests.

How were the transactions against OR's interests?

Solicitor A submits that OR has not demonstrated, in the Family Court or in the Tribunal, that anything negative has occurred as a result of the four Transactions. The shares have increased in value,[96] there has been no loss,[97] there is no evidence of missing funds,[98] the asset pool has been preserved,[99] and is now more valuable than what OR thought it was.[100]
[96] ts 19, 27 November 2023.
[97] ts 22, 27 November 2023.
[98] ts 19, 27 November 2023.
[99] ts 22, 27 November 2023.
[100] ts 19, 27 November 2023.
However, whether or not 'anything negative' occurred is not the test for whether the Tribunal will exercise the discretion to make orders under s 109(1) of the GA Act. For the Tribunal to become involved in scrutinising transactions undertaken pursuant to the power, there must be something that requires an inquiry, or a sufficient basis for making an order for an audit of the accounts and records.[101]
[101] EW at [94] and [101].
In this case, the EPA was used in connection with the transfer of $96,500 out of accounts in OR's sole name to an account in the control of VR. OR was removed as a director and secretary of the Company, and VR was appointed to those roles. OR was removed as the appointor and guardian of the Trust and VR was appointed. OR lost his right to obtain information and make decisions in relation to the entities.
OR has had his access removed from the Trust's bank account, and now experiences a delay in receiving up-to-date statements. VR had unfettered access to the account for some time, where she purchased a car and paid her legal fees, before the Family Court made orders to regulate her access to that account.
Rather than allow OR to use joint funds to pay legal fees like she has, VR has instead decided to expend legal fees and incur the costs of preparing for and attending four hearings, so far, at the Family Court in order to resist OR's Cost Application.
If OR is unable to obtain legal advice to adequately defend the claim for property settlement sought by VR in the Family Court, there is a risk that she will further profit from her use of the EPA in that she may obtain a more favourable financial outcome in the Family Court than she would if OR had access to competent legal advice and representation.
I am satisfied on the evidence before me, and I find, that the Transactions conducted by VR in connection with the EPA did not protect OR's interests, and they were against OR's interests. This is a further basis upon which the Tribunal would exercise the discretion to make the orders sought by OR.

Did VR act with reasonable diligence?

When giving evidence about the First Transaction and the advice she says she received from the bank that she could close the accounts if she had an EPA, VR stated:[102]
I feel really stupid here but I had no idea what an enduring power of attorney was. You know, I just said 'Yes, I've got one I think'. And I went home and I found it. So you know, I know that might sound naïve, but that's how it was.
[102] ts 13, 27 November 2023.
I note that at the time VR is referring to, she had engaged Law Firm A at least four months prior, as evidenced by the Disclosure List.
VR says that she took the steps she did because she was following the advice of her professional advisers. Specifically:
(a)the Accountant advised her to use the EPA to conduct the Second Transaction as it was necessary that she control the Company;[103] and
(b)the Accountant and Solicitor A advised her to conduct the Third Transaction.[104]
[103] ts 5, 27 November 2023.
[104] ts 6, 27 November 2023.
When I asked VR why she did not inform OR about the Transactions, she said that the VRO prevented her from doing so[105] and that her assumption was that the Accountant would tell Solicitor A, and Solicitor A would advise OR.[106]
[105] ts 5, 27 November 2023.
[106] ts 6 and ts 12, 27 November 2023.
VR's actions in respect of the Fourth Transaction occurred when the Family Court proceedings had been on foot for around nine months. The Family Court Rules require full disclosure in a timely manner, but VR did not tell OR or instruct Solicitor A to tell OR about the Fourth Transaction when it occurred. VR did not provide the first statement she received, number 9, to Solicitor A to add to the Disclosure List when she received it, which would have been in early 2022.
VR only disclosed statement number 10 after OR became aware of the Fourth Transaction from the information provided to him by the bank in August 2022 through his own enquiries. VR provided statement number 10 to Law Firm A on 18 September 2022,[107] almost a full year after VR undertook the Fourth Transaction. Statement number 10 was promptly disclosed to OR by Law Firm A. VR did not provide statement number 9 to Law Firm A until 6 January 2023.[108]
[107] Disclosure List, 1.3.4.
[108] Disclosure List, 1.3.5.
I do not accept VR's evidence as credible, and I find that she has sought to separate herself from conduct that is damaging to her case. She has tried to cast responsibility for those decisions or steps onto others, particularly the Accountant and Solicitor A.
VR's evidence, that she assumed that the Accountant would tell Solicitor A about the Second and Third Transactions, and Solicitor A would tell OR, implies that VR's view was that OR should be told about the transactions, but she relied on professional advisors who failed to meet their obligations. This is not consistent with her actions in respect of the Fourth Transaction and disclosure of the Trust bank account statements.
I therefore find that VR did not act with reasonable diligence when exercising the power pursuant to the EPA to protect OR's interests. On her own evidence given at the hearing of 27 November 2023, she does not understand how the four Transactions were against OR's interests.[109]
[109] ts 12, 27 November 2023.
OR is a donor with capacity. There is an expectation that transactions pursuant to a power of attorney would be discussed with a capable donor, and at the very least, an update provided as soon as possible following a transaction. VR did not discuss the four Transactions with OR prior to them occurring and she took no action to ensure that he was informed promptly after the fact.
VR withheld information from OR, and while she has provided the relevant documents and information now, a significant period of time, at least five months but often more, passed between each Transaction occurring and when OR was notified. It is likely that he has only been made aware of the Transactions and other actions because of the rules of disclosure in the Family Court and through this application to the Tribunal.

Will the Tribunal exercise the discretion to make the order?

The only orders the Tribunal has been asked to consider, and the only orders that can be made under s 109(1)(a) and (b), is whether to order VR to file a copy of all records and accounts kept of the dealings and transactions made in connection with the EPA,[110] and an order requiring an audit of those accounts and records.[111]
[110] GA Act, s 109(1)(a).
[111] GA Act, s 109(1)(b).
The reason the Tribunal will not exercise its discretion to make orders is because the remedy sought is no longer required at this point. In the course of these proceedings, OR has received all the information he requires from VR, without the Tribunal having to make orders pursuant to s 109(1)(a). OR has the benefit of the continuing obligation of full and frank disclosure due to the proceedings in the Family Court.

In terms of an audit, any complaints OR may have about VR's use of joint funds and assets, can and should be addressed in the Family Court. Regardless of whether or not OR knows how VR disbursed the funds or their current location, the Family Court has extensive powers to alter the property interests of the parties,[112] and is the appropriate forum to address OR's concerns about VR's use of joint funds.
[112] Family Law Act 1975 (Cth), s 79.
I will therefore dismiss the application.

Costs

VR's view, as expressed by Solicitor A, is that the application to the Tribunal was a means for OR to harass her and cause her financial loss by making frivolous and vexatious claims, and she says this has been the case throughout the Family Court proceedings.[113] VR has therefore sought the costs of Solicitor A's attendance at the two-hour hearing of 31 October 2023.
[113] Letter to the Tribunal from VR's solicitor dated 30 August 2023.
While the Tribunal has a discretion to award costs,[114] the established practice in the Tribunal in proceedings under the GA Act is that each party pays its own costs. Generally, a costs order will only be made where a party has acted unreasonably and has, by that party's unreasonable conduct, caused another party to incur costs.[115]
[114] SAT Act, s 87(2).
[115] Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73] – [74] and PHQ and LPQ [2015] WASAT 5 at [33].
OR's application properly enlivened the supervisory jurisdiction of the Tribunal, as there is a clear public policy reason to ensure that attorneys act diligently to protect the interests of the donor. I have exercised my discretion not to make the orders sought by OR only because there is no need for an audit and there is no longer a need for the production of documents, not because of any unreasonableness in OR's application or his conduct in this matter.
VR's application for OR to pay her costs of the hearing therefore fails.

Orders

GAA 3472/2023
The Tribunal orders:
1.Pursuant to s 62(1)(c) and s 62(3) of the State Administrative Tribunal Act 2004 (WA) the Donor's and Donee's names, and any information that might enable them to be identified, is not to be published.
2.The application made in GAA 3472/2023 is dismissed.
3.There be no order as to costs.
GAA 3841/2023
The Tribunal orders:
1.Pursuant to 62(1)(c) and s 62(3) of the State Administrative Tribunal Act 2004 (WA) the Donor's and Donee's names, and any information that might enable them to be identified, is not to be published.
2.The application made in GAA 3841/2023 is dismissed.
3.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R BUNNEY, MEMBER

19 JANUARY 2024

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: OR [2024] WASAT 2 (S)
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   14 FEBRUARY 2024
PUBLISHED           :   8 APRIL 2024
FILE NO/S:   GAA 3472 of 2023
GAA 3841 of 2023
OR
Applicant

Catchwords:

Records and accounts kept by donee of enduring power of attorney - Access to documents held by the Tribunal - Application for access to transcript - Use of Tribunal documents in another jurisdiction - Best interests of person concerned - Tribunal's discretion to allow access to documents - Each request for access determined on particular circumstances of the case - Concurrent proceedings in the Family Court of Western Australia - Summary of factors considered when exercising discretion

Legislation:

Family Court Rules 2021 (WA), Pt 13
Family Law Act 1975 (Cth), s 79, s 121
Guardianship and Administration Act 1990 (WA), s 3, s 3(1), s 4(2), s 4(7), s 17A, s 84, s 85, s 86, s 109(1)(a), s 112, s 112(1), s 112(2), s 112(3), s 112(4), s 113
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal 2004 (WA), s 32(1), s 32(4), s 73(1), s 100

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant

N/A

Solicitors:

Applicant

N/A

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

AB and Public Trustee [2015] WASAT 68
CD [2020] WASAT 41
EML [2009] WASAT 191
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
KN [2015] WASAT 104
KWD [2011] WASAT 4
LFG and Public Trustee [2015] WASAT 71
MB [2004] WAGAB 25
OR [2024] WASAT 2
PJB [2008] WASAT 190
Public Trustee [2022] WASAT 63
Re MM (2001) 28 SR (WA) 320
Re WA and IA; Ex parte AA [2011] WASAT 60
SH and EJH [2013] WASAT 176

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

OR applied to the Tribunal in 2023 to seek orders that his former wife VR file the accounts and records of transactions she made in connection with the enduring power of attorney by which OR appointed her as his attorney (EPA). OR also sought an audit of those accounts and records.
I dismissed the applications because OR and VR are parties to proceedings in the Family Court of Western Australia (Family Court). I found that OR did not require the Tribunal to make the orders sought due to the strict disclosure requirements of the Family Court Rules2021 (WA)[116] and the power of the Family Court to alter the property interests of OR and VR.[117] My reasons for decision are published in OR [2024] WASAT 2 (OR).
[116] Part 13 of the Family Court Rules 2021 (WA).
[117] Family Law Act 1975 (Cth) (FLAct), s 79.

The current application

In a letter received by the Tribunal in late January 2024, OR asked to use the transcripts of the hearings (Transcripts)[118] and my written decision in OR as evidence in the Family Court proceedings. OR's letter was taken as an application made pursuant to s 112(4) of the Guardianship and Administration Act1990 (WA) (GA Act).
[118] A directions hearing occurred on 24 August 2023 and the matter was heard on 31 October and 27 November 2023.
A decision to allow, or refuse to allow inspection or access to documents held by the Tribunal is a 'determination' of the Tribunal.[119] These are the reasons for my decision to allow OR to use the Transcripts in another jurisdiction.[120]
[119] GA Act, s 3(1).
[120] It was not necessary that the Tribunal grant access to the published decision as it was already in the public domain.

Documents held by the Tribunal

Sections 112 and 113 of the GA Act establish and regulate the inspection and confidentiality regime in relation to the often highly personal and private documents held by the Tribunal in respect of proceedings commenced under the GA Act.
The personal information and evidence about the proposed represented person/represented person/donor of an enduring power of attorney (Person Concerned) may include (but is not limited to):
(a)their medical history and functional capacity, consisting of hospital discharge summaries and reports from medical specialists, allied health professionals, service providers, the NDIS or aged care providers;
(b)financial information in respect of their assets, liabilities, income and expenses, which may include documents from financial institutions or reports prepared by the Public Trustee if appointed as administrator; and
(c)documents produced by the Tribunal itself in the form of transcripts, orders, and written decisions that may or may not be published for public dissemination.
Evidence given during hearings and recorded in the transcripts, particularly from the Person Concerned, can be extremely sensitive, noting that the Tribunal is required to ascertain the views and wishes of the Person Concerned.[121] It is inevitable that the evidence will extend to the Person Concerned's family members and others close to them, and often the evidence is conflicting or denied.[122] This is particularly so in matters involving the transfer or control of assets, claims of gifting or the preparation of a new will, in circumstances where the capacity of the Person Concerned is in doubt.
[121] GA Act, s 4(7).
[122] The Tribunal is not bound by the rules of evidence and may inform itself on any matter pursuant to s 32(1) and s 32(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The Tribunal's ability to exercise its functions under the GA Act is dependent upon the willingness of the Person Concerned, the parties and the professionals involved in proceedings to provide their opinions and give evidence willingly.[123] There is a reasonable expectation that the information provided to the Tribunal will only be used in GA Act proceedings,[124] so the candour with which those opinions are expressed would be jeopardised if the confidentiality of such information was unable to be protected by the Tribunal.[125]
[123] CD [2020] WASAT 41 (CD) at [37].
[124] EML [2009] WASAT 191 at [26].
[125] CD at [37].

Factors considered by the Tribunal

When deciding whether or not to exercise the discretion to allow inspection or access to documents, the Tribunal will have regard to the following factors, as relevant, set out in the GA Act and distilled from the case law of the Tribunal:
(a)the best interests of the Person Concerned, which is the primary concern of the Tribunal;[126]
(b)the views and wishes of the Person Concerned as expressed, in whatever manner, at the time, or as gathered from their previous actions;[127]
(c)the class of the person making the application for access, any conditional entitlement they may have to documents pursuant to s 112(1) or s 112(2) of the GA Act and whether the party now seeking access to a document was entitled to access the document during earlier proceedings;[128]
(d)the protection of the privacy of the Person Concerned;[129]
(e)the public interest in the integrity of the Tribunal processes which relies on the ability to obtain sensitive information from a variety of sources;[130]
(f)whether the party seeking access has provided very cogent reasons as to why the discretion to allow access should be exercised and has demonstrated a particular need as to why the inspection should be allowed;[131]
(g)whether allowing access to documents could contribute to ongoing conflict, particularly in the Person Concerned's family;[132]
(h)whether the purpose for which access is sought is closely related to the Tribunal proceedings;[133]
(i)whether the request is from persons charged by law with the responsibility to conduct investigations or take other actions in the public interest;[134] and
(j)in circumstances where the Tribunal requests that legal documents be provided to the Tribunal on the understanding that the document will not be made public, ensuring that the information or document will not routinely find its way into other arenas of conflict.[135]
[126] GA Act, s 4(2). KWD [2011] WASAT 4 (KWD) at [11]. SH and EJH [2013] WASAT 176.
[127] GA Act, s 4(7). KN [2015] WASAT 104.
[128] PJB [2008] WASAT 190 (PJB) at [46].
[129] Re MM (2001) 28 SR (WA) 320 (Re MM) at [332], cited in KWD at [10].
[130] Re MM at [332], cited in MB [2004] WAGAB 25 at [34]. KWD at [10].
[131] Re MM at [332].
[132] Re WA and IA;Ex parte AA [2011] WASAT 60 at [4].
[133] ReMM at [332].
[134] MB at [66], cited in KWD at [42].
[135] PJB at [46] – [47].
In terms of cogent reasons and the particular need for access, the standard Tribunal form filed to apply for access to documents requires the applicant to provide the reason for the request.[136] The form states that access will generally be refused if the reason consists of:
(a)a general desire to be informed;[137]
(b)furtherance of the applicant's own personal benefit, unrelated to the best interests of the Person Concerned;
(c)the applicant being the executor or administrator of a deceased estate; or
(d)inheritance matters.
[136] Request for access to transcripts and or documents under the Guardianship and Administration Act 1990 (WA).
[137] Re MM at [332]; CD at [43].
Convenience or cost savings alone are usually not sufficient to satisfy the test of cogent reasons,[138] but there may be instances where access is granted for that reason.[139]
[138] AB and Public Trustee [2015] WASAT 68 at [29] and [30]. LFG and Public Trustee [2015] WASAT 71 at [32]. Cited in Public Trustee [2022] WASAT 63 (Public Trustee) at [29] and [35] CD at [43].
[139] Public Trustee at [48].

The inspection and confidentiality regime

Section 112 of the GA Act describes three classes of persons and their respective entitlements to access information and records held by the Tribunal. Sections 112(3) and 113 govern the confidentiality of documents held by the Tribunal.
Sections 112(1) and 112(2) refer to persons involved in the proceedings, where their access to and use of the documents is to accord procedural fairness and facilitate a proper hearing of the application before the Tribunal.[140] In marked contrast, section 112(4) concerns a request from any person for access to any document for use in any application.
[140] MB at [55]; KWD at [74]; CD at [39] cited in Public Trustee at [35].
Regardless of who is applying, all applications for access to documents are taken as applications under s 112(4).[141] This subsection provides the Tribunal with the power to order that 'any person' have access, which includes the persons contemplated by s 112(1) and s 112(2). Further, there is a right of review of a decision made under s 112(4) pursuant to s 17A of the GA Act, but not under s 112(1) and s 112(2).[142]
[141] Public Trustee at [62].
[142] The definition of 'determination' in s 3 of the GA Act includes a decision to make or refuse to make an order under s 112(4). Section 17A of the GA Act states that where the Tribunal 'consisting of one member makes any determination, a party who is aggrieved by the determination may request the President to arrange for a Full Tribunal to review the determination'.
Section 112(3) of the GA Act strictly limits access to the documents and personal information held by the Tribunal. This section creates an offence punishable by imprisonment of 9 months or a fine of $2,000 for any person[143] to inspect or otherwise have access to information held by the Tribunal unless authorised by order of the Tribunal. Section 113 of the GA Act imposes strict confidentiality on the personal information obtained in the course of proceedings under the GA Act, punishable by a fine of $5,000.
[143] Save for a member of the Tribunal or a member of the staff of the Tribunal.

Section 112(1) – request from the Person Concerned

Section 112(1) of the GA Act states:
(1)A represented person, a person in respect of whom an application under this Act is made or a person representing any such person in any proceedings commenced under this Act is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to —
(a)any document or material lodged with or held by the Tribunal for the purposes of any application in respect of that person;
(b)any accounts submitted under section 80 by the administrator of the estate of that person.
The Person Concerned is entitled, subject to any conditions imposed by the Tribunal, to access documents both as a general right to know what information the Tribunal holds about them and to have that knowledge for the conduct of any application that relates to them.[144]
[144] KWDat [72] and [86].
The 'general right to know' is consistent with the rules of natural justice[145] and is particularly important when the Tribunal is being asked to make orders that would deprive the Person Concerned of their decision-making autonomy.
[145] SAT Act, s 32(1). KWD at [70] and [74].
Re MM was a decision published in 2001 by the Guardianship and Administration Board (Board), whose role is now performed by the Tribunal, concerning a periodic review of guardianship and administration orders. MM sought copies of documents held by the Board for use in her proceedings before the Mental Health Review Board (MHRB) where orders had previously been made to involuntarily detain her under the mental health legislation in force at that time.
In the preceding three and a half years, five applications had been filed with the Board to seek guardianship and/or administration orders in respect of MM and seven reviews had occurred before the MHRB, as well as an appeal to the Supreme Court of Western Australia in respect of one of the decisions of the MHRB. In early 2001, the MHRB held a further review of MM while the reserved decision of the Board was pending and discharged her as an involuntary patient, which significantly changed MM's circumstances to be considered by the Board.
Both sets of proceedings related to essentially the same issue and in addition to the stress on MM of having concurrent proceedings, there was a possibility that inconsistent decisions could be reached by each Board. The Board allowed MM to use her documents in the next MHRB review as it was in her best interests to do so because those proceedings were 'closely related' to the Board proceedings.[146]
[146] Re MM at [332].

Section 112(2) – request from 'a party'

Section 112(2) provides:
(2)Any other party to any proceedings commenced under this Act, or a person representing any such party, is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purpose of those proceedings, other than a document or material that is or contains a medical opinion not being an opinion concerning that party.
The parties' conditional entitlement to inspect or access documents only relates to documents filed as part of the specific proceedings to which they are a party, reflecting the requirement of procedural fairness. The conditional entitlement does not extend to medical opinions and ends when the final orders are made in those proceedings.
In KWD, after a new administration order was made following a s 84 periodic review (New Order), the Person Concerned's son filed an application to review the New Order under s 17A of the GA Act. The son then applied for access to a report prepared by the Public Trustee as part of the s 84 review so that he could 'obtain legal advice with respect to what [he believed] would be in the best interests of the [Person Concerned] …'.[147]
[147] KWDat [20].
Because the s 17A review was on foot, the son submitted that the s 84 review proceedings were not at an end. However, the Tribunal found that the son's conditional entitlement for access to the report, which was available to him during the s 84 periodic review proceedings, ended when the New Order was made.[148] Thus, a conditional entitlement for access is not revived by a subsequent review, whether that be pursuant to s 17A, s 84, s 85 or s 86 of the GA Act.[149]
[148] KWDat [100].
[149] However, it is usual that the hearing book for a s 17A review would contain the documents that were filed in respect of the decision under review.

Section 112(4) – request by any person for purposes of any application

Section 112(4) regulates the access of 'any person' who applies to inspect or have access to 'any document or material' held by the Tribunal in respect of proceedings under the GA Act for the purposes of 'any application'. Under this subsection, the Tribunal can grant access to documents or materials that relate to pending or concluded applications.[150]
[150] MB at [63] and [65], cited in CD at [45].
Section 112(4) reads:
(4)The State Administrative Tribunal may on the application of any person —
(a)by order, authorise any person, whether conditionally or unconditionally, to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purposes of any application; and
(b)make any other order contemplated by this section.

There is no entitlement, conditional or otherwise, for anyone to inspect or have access to documents for the purposes of 'any application'. The applicant is required to provide cogent reasons and to demonstrate the particular need as to why access should be granted.[151]
[151] ReMM at [332]. KWD at [90].
When exercising the discretion to grant access to documents pursuant to this subsection, the Tribunal should act cautiously.[152] There are competing interests and tensions inherent in the operation of s 112(4), such as between the best interests of the Person Concerned and the public interest in the integrity of the Tribunal's processes which relies on the ability to obtain sensitive information from a variety of sources.[153] It is therefore a matter of judgment in any particular case as to how the discretion available to the Tribunal under s 112(4) should be exercised.[154]
[152] KWD at [89].
[153] Re MM at [332].
[154] PJB at [44] – [45].
That said, the Tribunal's power to grant access to relevant documents should not be interpreted narrowly as:
… [It] is possible to envisage a number of circumstances in which, for example, persons charged by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with and are held by the [Tribunal] for the purposes of an application. The [Tribunal] should be able to determine on an application-by-application basis whether the request for access by a person should be granted[.][155]
[155] MB at [66], cited in KWD at [42].
This could include, among others, an application by a police force, a vocational regulation Board, the Public Advocate or the Public Trustee.
It is worth noting that prior to the Tribunal being established, s 112(4) included an authorisation that allowed the Board, on its own initiative, to allow inspection or access to documents.[156] While that discretion has been removed,[157] the Tribunal has the power under s 73(1) of the SAT Act to make ancillary orders to achieve the purpose of an order made by the Tribunal.
[156] Re MM at [332].
[157] KWD at [55] as per the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA).
This means that if the Tribunal formed a view that it was necessary and appropriate to grant access to a document held or produced by the Tribunal in order, for example, for a guardian to make decisions and protect the best interests of the Person Concerned, or for a medical professional to accurately assess the Person Concerned, the Tribunal can, on its own initiative, make an order pursuant to s 73(1) of the SAT Act to allow access to documents held or produced by the Tribunal for that purpose.

Conditions upon which access is granted

If inspection or access to documents is granted, the Tribunal will determine the appropriate conditions to be placed on access to retain strict control over the use of the information or documents.[158] The Tribunal will routinely include an order to specify the purpose for which the documents or information can be used, which is often limited to proceedings under the GA Act. Any breach of the conditions imposed carries serious consequences, including the matter being dealt with as a contempt of Court.[159]
[158] CD at [51].
[159] SAT Act, s 100.
A person who is not legally represented will usually only be permitted to inspect documents.[160] A condition will be imposed that no copies be made, and the information is not disclosed to any other person except for the purpose of obtaining legal advice.
[160] Either by making an appointment to inspect the documents at the Tribunal, or at a local police station or courthouse if they are outside of the Perth metropolitan area.
If a person is legally represented, copies of documents are provided to their solicitor. The Tribunal will impose conditions on the solicitor that require that no copies are to be made and no part of any document is to be disclosed to anyone except their client. The orders will often include a requirement that the documents provided to the solicitor be destroyed within 28 days after the proceeding is concluded. In these circumstances, the conditions in respect of disclosure, copying and destruction of documents are directed at and bind the solicitor.
When access is permitted, the Tribunal expects parties and their legal advisors to conscientiously observe the conditions placed on the use of documents. If there is any doubt about the authorised use of documents, an application should be made to the Tribunal to vary the s112(4) order or to seek for permission to use the documents prior to doing so.[161]
[161] CD at [157], [159], [164] and [169].

Consideration of OR's request

In consideration of the ten factors set out in [9], I am satisfied, and I find, that it is in OR's best interests to allow him to have access to the Transcripts for use in the Family Court proceedings.
OR is the Person Concerned. He has a conditional right to access documents as a general right to know what information the Tribunal holds about him. As OR has capacity, he is able to weigh up the pros and cons of waiving the confidentiality of the information disclosed about him in the Tribunal proceedings and decide to use that information in the Family Court.
The Tribunal holds no sensitive medical information about OR, by virtue of there being no dispute about him having capacity. The only parties that participated in the hearings are OR, VR and VR's solicitor, so no one else provided evidence who may be concerned about confidentiality or the integrity of the Tribunal processes.
While OR did not specify a cogent reason or a particular need as to why the discretion should be exercised, I am satisfied, and I find, that it is appropriate to exercise the discretion for two reasons on the basis that the substance of the Tribunal proceedings under s 109(1)(a) of the GA Act and the Family Court proceedings are 'closely related'.
The first reason is that the Family Court and Tribunal proceedings relate to the same parties. The second reason is that the evidence given in the Tribunal hearings in respect of the dealings and transactions conducted by VR in connection with the EPA and the 'flow on' effects of those transactions is directly relevant to the consideration of the Family Court when finalising the financial relationship between OR and VR.[162]
[162] FL Act, s 79.
I will impose conditions on access to ensure that the Transcripts are only used in the Family Court proceedings and provided to specific relevant people, as the Transcripts are not anonymised and contain personal financial information of VR. As the Transcripts will likely be annexed to an affidavit or handed up to the Judge during a hearing, they will become part of the Court record, so it is not appropriate to make an order that the documents be destroyed by a specific time.
Once part of the record of the Family Court, the information in the Transcripts will be protected by the implied undertaking to the Court that documents will only be used for the purposes for which they were disclosed.[163] The information will be further protected by the confidentiality provided to parties to Family Court proceedings pursuant to s 121 of the Family Law Act 1975 (Cth).
[163] And not for a collateral or ulterior purpose unrelated to the proceedings in which the information was obtained as per Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125.

Orders

The Tribunal orders:
1.The letter from [OR] dated 23 January 2024 is treated as an application pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA).
2.[OR's] application for access to the transcripts of the hearings of 24 August 2023, 31 October 2023 and 27 November 2023 (Transcripts) is granted.
3.A copy of this order must be provided to all parties to whom notice of the Tribunal proceedings is given.

Conditions upon which access is granted for specific purpose

4.Access is granted to [OR] to the Transcripts only for the purpose of use in proceedings PTW [XXX] in the Family Court of Western Australia (Proceedings).
5.[OR] is authorised to provide copies of the Transcript to the following parties for this purpose:
(a)Judicial Officers;
(b)legal representatives; and
(c)other parties involved in the Proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R BUNNEY, MEMBER

9 APRIL 2024