Perpetual Trustees (WA) Limited and BW - [2012] WASAT 106

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PERPETUAL TRUSTEES (WA) LIMITED and BW [2012] WASAT 106

MEMBER: MS D TAYLOR (SENIOR MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)

HEARD: 29 JUNE 2011

DELIVERED : 21 MAY 2012

FILE NO/S: GAA 265 of 2011

BETWEEN: PERPETUAL TRUSTEES (WA) LIMITED
Applicant
AND
BW
Represented Person
PUBLIC TRUSTEE
Other Party

Catchwords:

Administration Trustee company appointed administrator at previous hearing Application by administrator for authority to make payments from represented person's estate for the benefit of family members Application granted Whether administrator's legal costs relative to the proceedings should be paid from represented person's estate Application for costs refused

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(4), s 70, s 70(1), s 70(2), s 70(2)(e), s 71(5), s 72, s 72(3)(a), s 76, s 76(1), s 80, s 80(1), s 80(3), s 117, s 118, s 118(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 87

Result:

Application for costs refused

Category: B

Representation:

Counsel:

Applicant:     Mr Fatharly
Represented Person      :     No appearance
Other Party                  :     Mr N Stanton (Acting as Agent)

Solicitors:

Applicant:     Kott Gunning
Represented Person      :     N/A
Other Party                  :     Public Trustee

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

BW [2008] WASAT 82
LC and JS [2007] WASAT 127
Perpetual Trustees and BW [2008] WASAT 146
Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253
Re The Full Board of Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal refused an application for costs to be paid from a represented person's estate to his administrator, a trustee company, that had incurred legal costs relative to an application for authority to make payments from the estate of a benevolent nature for the benefit of members of the represented person's family.
The administrator's decision to engage a law firm to prepare the application and appear at the hearings was made because of company policy at odds with its duty to act, at all times, in the best interests of the person whom it had been appointed to represent.
The application for authority to make payments from the estate was neither complex nor contentious. The application was supported by the interested parties and not opposed by the Public Trustee. The Tribunal's inquisitorial approach ensured that the information necessary to determine the application was presented.
Three previous applications for costs in proceedings concerning the represented person had been refused. The issues in the present application did not give rise to any new or other complexity that would justify the Tribunal making a decision regarding costs that was not in line with its previous decisions.
The Tribunal held that the administrator's application for an order that its costs incurred relative to the application be paid from the represented person's estate fell to be determined under s 16(4) of the Guardianship and Administration Act 1990 (WA). The Tribunal's decision to dismiss the application did not prevent the administrator from exercising a discretion to reimburse himself for expenses reasonably incurred in or about the performance of his functions, as provided for by s 118 of the Guardianship and Administration Act 1990 (WA). The Public Trustee would decide whether any reimbursement made in this context was justified by reference to the overarching requirement that any decision made by an administrator must be taken in the best interest of the represented person.

Introduction

This application to recover legal costs incurred by a trustee company appointed to administer the estate of the represented person (BW), under the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act), arises in the context of proceedings concerning him that were commenced by his daughter (KB) in November 2007.
The proceeding to which the current application for costs relates commenced on 24 January 2011, when the administrator, Perpetual Trustees (WA) Limited (Perpetual Trustees), applied to the Tribunal for permission to make payments from BW's estate to meet the costs of education for his children and grandchildren.
The application was supported by the interested parties and not opposed by the Public Trustee.
On 7 April 2011, the Tribunal granted the application.
Subsequently, the administrator applied for orders authorising the payment of its legal costs in relation to the application out of BW's estate.

Background

In November 2007, when BW was 90 years of age and in hospital suffering from short term memory loss and confusion, among other ailments, KB applied to the Tribunal to be appointed his administrator.
BW had been a well known and successful retailer in Perth prior to his retirement. He was a man of significant personal wealth, with a family that included KB, her three children (grandchildren) and two children (children) from his third marriage. He had survived the holocaust and come to Australia after the war. He regarded his family as including the wives from whom he had been divorced.
In December 2007, KB made a further application to be appointed BW's guardian, as it had become clear that he was suffering from moderately severe cognitive impairment that was likely to be caused by dementia.
On 16 January 2008, when the matter came before the Tribunal for hearing, an independent limited guardian was appointed to make treatment and lifestyle decisions on BW's behalf. The hearing of the application for the appointment of an administrator was adjourned part heard, to enable the parties to provide the Tribunal with information regarding the fees charged by Perpetual Trustees and the Public Trustee for their services as administrators, as KB had indicated that if she were considered suitable to be appointed administrator for BW, she would request the appointment of a trustee company.
A reading of the transcript of the hearing on 16 January 2008 shows that Perpetual Trustees was being proposed as administrator of choice by KB, and that there were live issues about the outsourcing of work and fees charged by it and its competitor, the Public Trustee.
On 16 January 2008, the following submission (T:54; 16.01.08) was made on behalf of Perpetual Trustees by Mr Fatharly:
One of the main differences is that Perpetual Trustees do everything in house. The same team of people deal with the daytoday matters for administering the estate and they deal with the investment aspects of things internally, whereas as I understand it, the [P]ublic [T]rustee outsource a lot of those investmenttype decisions and other types of decisions. So whereas the [P]ublic [T]rustee might comment that their fee structure is something, there are addon costs there that may not be as obvious in their upfront fee structure. …
The issue was addressed further by a representative from Perpetual Trustees, who attended the hearing with three of his colleagues, and said the following about the Public Trustee's tendency to outsource its investment management as follows:
So we have got a lot of expertise which is all in house and we are able to deliver that in a comprehensive manner. …
On 27 February 2008, the Tribunal made an order appointing Perpetual Trustees as plenary administrator of BW's estate, with all the powers and duties conferred by the GA Act. It made a further order expressly authorising the administrator to receive remuneration for the administration of the estate from the date of the order (27 February 2008) at its published rate of fees.
After the hearing, KB and BW's third wife (KW) applied for their legal costs to be met from BW's estate. Each of them had been separately represented at the two day hearing.
The Tribunal dismissed the application. Its written decision: see BW [2008] WASAT 82, was delivered on 16 April 2008. Regarding the nature of Tribunal proceedings, Member Dean said the following at [88]:
The Tribunal aims to make proceedings as accessible as possible to the parties generally making legal representation unnecessary in preparation for, or attendance at, guardianship and administration hearings because the Tribunal's inquisitorial and investigative processes are generally sufficient for it to gather adequate information for a determination to be made. If the matter is complex and additional information is required the Tribunal is able to refer an application to [Office of the Public Advocate] under s 97(1)(b) of the GA Act for independent investigation and advocacy.
The Tribunal rejected KB's submission that she 'would have found it too difficult to investigate her father's affairs and instigate and follow through with these proceedings'. Member Dean said the following at [89]:
… The Tribunal accepts that KB was acting in what she saw as her father's best interests in making the application to the Tribunal for guardianship and administration orders but the application forms are designed to be completed by lay persons and do not require input from, or the supervision of, a legally trained individual. In the opinion of the Tribunal, there is nothing in this case, in the applications or the submissions, to indicate complexity requiring legal assistance and nothing in the process of the hearings to indicate that an outcome consistent with the best interests of BW would not have been achieved without legal representation.
In dismissing the applications for their respective costs to be paid from the estate, at [92] Member Dean said the following:
The Tribunal has a statutory obligation to act in the best interests of the represented person. The Tribunal is not satisfied in this case that the estate and family relationships are of sufficient complexity to warrant the need for legal representation for KB, BW's daughter and KW, BW's exwife, in relation to the hearings and finds that it is not in the best interests of BW that the legal costs incurred by his daughter and former wife are borne by his estate. There was nothing about the conduct of the hearings to suggest that legal representation was necessary to ensure the best outcome for BW.
The Tribunal provided the parties with a copy of the decision delivered on 16 April 2008. The parties were in possession of a clear and concise summary of the Tribunal's views about several matters relevant to the current application.
After receipt of a copy of the decision delivered on 16 April 2008 dismissing KB's and KW's applications for costs in connection with the two day hearing in January 2008 and February 2008, Perpetual Trustees applied for an order for its costs to be paid out of the estate in relation to the same two day hearing.
The Tribunal dismissed the application: see Perpetual Trustees and BW [2008] WASAT 146. It found that there was nothing about the conduct of, or preparation for, either of the two hearings to suggest that legal representation was necessary to ensure the best outcome for the represented person: see [3] of Perpetual Trustees and BW [2008] WASAT 146.
Member Dean drew a distinction between the obtaining of legal advice in respect of matters in issue and the decision to be legally represented in the proceedings, and said the following at [18] [23]:
As outlined in the reasons for decision in respect of the hearing of the applications for guardianship and administration for BW, I accept that it was not unreasonable for some parties to seek legal advice in this case: BW [2008] WASAT 82. As stated previously, proceedings in the Tribunal are conducted with as little formality as possible and generally do not warrant or necessitate the need for legal representation.
I accept that, given the proposal to appoint Perpetual Trustees they have the right to legal representation, but I do not accept that it was necessary, or necessarily in the best interests of the represented person, for Perpetual Trustees to have legal representation in presenting their case for taking on the role of administrator of the estate of the represented person.
Given the inquisitorial nature of the Tribunal processes and the availability of the Public Advocate in an investigatory role if required, the Tribunal is, in most cases, able without input from legal representatives of the parties, to gather the information required to make a decision in the best interests of the represented person. This case was no different from most others in that respect.
With regard to the request by the Tribunal for information in relation to the fees of both the Public Trustee and Perpetual Trustees, it should have been a relatively simple procedure for Perpetual Trustees to procure a list of fees from the Public Trustee and to provide a comparison of these with those of Perpetual Trustees to the Tribunal. I do not accept that this warranted legal involvement.
The Tribunal has a statutory obligation to act in the best interests of the represented person. I am not satisfied that it is in the best interests of the represented person for his estate to bear the cost of the legal representation of Perpetual Trustees at the hearings, for communicating with other parties or for the preparation of written material in relation to the hearings.
In my opinion there was nothing about the conduct of either of the hearings to suggest that legal representation was necessary to ensure the best outcome for the represented person.
The two written decisions dismissing the three applications for legal costs to be paid from BW's estate provided the parties with guidance as to the informal and inquisitorial nature of proceedings before the Tribunal under the GA Act. The decisions made clear that, in proceedings before the Tribunal, each party should expect to bear its own costs and that it did not consider the proceedings concerning BW to be complex or exceptional so as to warrant legal representation in order to ensure that he received the best outcome.

The costs of education for BW's children and grandchildren

In the proceedings before the Tribunal in 2008, reference was made to BW's practice of meeting the costs of education for his children and grandchildren prior to the deterioration in his mental state. BW was said to place great importance on the benefits of good, mainstream education for his family members. For many years, he had underwritten the costs incurred in connection with the education of his children and grandchildren, whose ages were about the same.
This practice stopped with the appointment of Perpetual Trustees as BW's plenary administrator, as its functions were proscribed by the provisions of the GA Act. However, the issue remained a live one and was discussed amongst the family and with BW's administrator.

The application in 2011

In its capacity as administrator for another represented person, Perpetual Trustees had erred in making payments of a benevolent or ex gratia nature from the estate for the benefit of third parties without the prior authority of the Tribunal. The decision in Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253 saw the Public Trustee's decision upheld to issue a certificate of loss against Perpetual Trustees in respect of the payments made from an estate, because the Tribunal's prior authority to make the payments had neither been sought nor granted. Section 72(3)(a) of the GA Act states:
(3)Notwithstanding this section or section 71, an administrator shall not without the authority of the State Administrative Tribunal under section 71(5)
(a)make a payment or disposition of a charitable, benevolent or ex gratia nature[.]
In view of this decision, on 24 December 2011, Perpetual Trustees lodged the application for prior authority to make payments from the estate for the benefit of the children and grandchildren, in respect of which they now seek to recover from BW the costs they incurred in bringing the application. A bundle of documents was submitted in support of the application that comprised some 105 pages. It included information about the nature and extent of BW's estate that was available in the annual accounts submitted to the Public Trustee: see s 80 of the GA Act. It also included a number of receipts for costs connected with education incurred by KP, KW and the children and grandchildren that would be relevant if the application was granted.
However, the bundle did not include material essential to the determination of the issues. The Tribunal called for this material in the course of its inquiry. The material included handwritten statements from members of BW's family. He was a firm believer in 'proper' education. It also included copies of documents that contained clear and cogent information about BW's wishes and views about supporting his children and grandchildren financially in education. These documents comprised his will and a set of final orders concerning the children, made in financial settlement proceedings between BW and KW in the Family Court of Western Australia. Perpetual Trustees had these documents in its possession as BW's administrator, but did not submit them in the bundle of documents lodged in support of the application.
During the hearing, the Tribunal was told that Perpetual Trustees retained the services of a law firm to make the application and to appear at the hearings in line with company policy. To that end, it had entered into a written client service agreement to pay solicitor's costs that it expected to recover.
The Tribunal was reminded that its original order appointing Perpetual Trustees as BW's administrator had authorised payment of additional service fees of up to $300 per hour beyond the general portfolio management.
It is not necessary for the purpose of these reasons to set out in detail the basis of the Tribunal's decision to grant the application. The application was supported by BW's family members (who would benefit directly and indirectly if authority to make payments was given), and it was not opposed by the Public Trustee. The hearings were not contentious. The Tribunal's inquisitorial process ensured that it was provided with the evidence needed to determine the application to permit payments in the nature of gifts to third parties to be made from the estate.
At the conclusion of the hearing, the parties were reminded of the general rule that, in proceedings before the Tribunal, each party bears its own costs: see s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Following the hearing, Perpetual Trustees made an application for costs to be paid to them from the estate in the sum of $19,768.01 to defray the account rendered by the law firm for the costs incurred in connection with the proceeding. This did not include a sum of $450 for Sydney based in house legal counsel time and attendance in relation to the application, charged by way of additional service fees.

The submissions (in summary) of Perpetual Trustees

The written submissions made by Perpetual Trustees began as follows:
Application for Costs
1.Perpetual Trustees (WA) Limited ('Perpetual') applies for orders authorising the payment of its legal costs in relation to the application GAA 265/2011 out of the estate of the represented person should the Tribunal consider it necessary and appropriate to make such orders in the circumstances.
2.To the extent that the Tribunal may consider that such orders may be unnecessary, the Tribunal's attention is drawn to the provisions of sections 76, 177(3) and 118(1) of the Guardianship and Administration Act …
Perpetual Trustees submitted that the application was necessary in view of the decision in Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253, and appropriate because BW loves the children and grandchildren and had contributed substantially to the costs of their education in the past.

It was unsure whether or not an application for costs needed to be made, because the terms of s 76 of the GA Act permitted an administrator to employ an agent, and s 118 permitted him to reimburse himself out of the estate for all expenses reasonably incurred in or about the performance of his functions.
Perpetual Trustees submitted that the making of one consolidated application was better for BW and the Tribunal, because it ensured that all relevant information could be put before the Tribunal in a timely way.
Perpetual Trustees rely upon the provisions of s 76 and s 118(1) of the GA Act as providing authority for it to instruct solicitors to act on its behalf in relation to any aspect concerning the administration of BW's estate.
Perpetual Trustees submits that the provisions of s 76 and s 118(1) of the GA Act are not subject to the provisions relating to costs that arise under s 16 of the GA Act, outlined above.

The submissions (in summary) of the Public Trustee

The Public Trustee notes that Perpetual Trustees and BW are separate parties in this proceeding.
The Public Trustee submits that the specific provisions of s 16(4) of the GA Act, that relate to costs of Tribunal hearings, do not override the general words of s 117, that relate to remuneration of an administrator generally. He submits however, that costs under s 16(4) of the GA Act relate primarily to legal fees and are to be distinguished from the sort of costs that an administrator may recover under a remuneration order (s 117 of the GA Act) or by way of reimbursement for costs incurred in engaging an agent (s 118 of the GA Act). He submits that the remuneration order made on 27 February 2008 allows Perpetual Trustees to charge for services at an hourly rate, and that those services need not be performed by lawyers. The Public Trustee envisages circumstances in which the in house staff of a professional administrator will be required to prepare for and attend a Tribunal hearing, and that the costs incurred in so doing will be recovered under the terms of the remuneration order. To that end, the Public Trustee considers that the sum of $450 charged for the work of the in house lawyers does not appear to be excessive.
The Public Trustee submits that as the provisions of s 16(4) of the GA Act do not override the provisions of s 118, the Tribunal does not have jurisdiction to authorise payment of Kott Gunning's fees.
The Public Trustee submits that Perpetual Trustees should be left to decide whether or not to deduct the legal fees as expenses reasonably incurred in or about the performance of its functions as administrator. If it did so, the deduction would be considered by the Public Trustee as scrutineer of BW's annual accounts: see s 80(1) and s 80(3) of the GA Act. If the Public Trustee decides that the expenses were not reasonably incurred in or about the performance of the administrator, he can disallow the payment or determine that a loss has occurred: see s 80 of the GA Act.
The Public Trustee went on to consider whether it was reasonable for Perpetual Trustees to engage lawyers to make the application. He noted the provisions of s 70(1) of the GA Act that require an administrator to act according to his opinion of the best interests of the represented person, and the decision in Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253, where it is said at [57] that 'the GA Act allows a large amount of latitude to both the administrator and the Tribunal in dealing with what they may see as the best interests of the represented person …'.
The Public Trustee also drew attention to the Tribunal's decision in LC and JS [2007] WASAT 127, where at [56] it listed a number of situations in which it might be reasonable to have legal costs paid by a represented person:
•it is unlikely that an application would have been made to the Tribunal and the proposed represented person benefit from the protection of an order had not legal advice been sought by the applicant;
•there are serious allegations that the proposed represented person is suffering from abuse, and legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
•conflict between significant parties is of such magnitude that it is unlikely they could present a coherent case to the Tribunal in respect of the history and needs of the proposed represented person without legal assistance;
•the application is of such complexity that legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
•the application is contentious and unique, for example, sterilisation; and
•the application raises a special point of law.
The Public Trustee submitted that this application did not come within any of the situations outlined and that it did not appear to have raised any significant issues.

The issues

The application for costs raises a novel question about the Tribunal's jurisdiction to make an order that the costs incurred by a party relative to a proceeding be paid from the represented person's estate, when the party seeking the costs is the administrator of the estate with permission to charge fees under the terms of a remuneration order and to reimburse himself for costs incurred in or about his functions. It also raises questions about the autonomy of a professional administrator to administer an estate in a manner of its choosing at the expense of the estate, in circumstances where it is likely that a more cost effective approach could have been taken.

Discussion

Section 16(4) of the GA Act provides:
The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
Section 76 of the GA Act provides:
(1)An administrator may, instead of acting personally, employ and pay an agent, whether a solicitor, accountant, bank, stockbroker or other person, to transact any business or do any act required to be transacted or done in the management or administration of the estate, including the receipt and payment of money, and the keeping and audit of accounts.
(2)An administrator is not liable for any default on the part of an agent employed under subsection (1) in good faith and without negligence.
(3)Nothing in this section affects sections 50 and 53 of the Public Trustee Act 1941.
Section 118(1) of the GA Act provides:
(1)An administrator may reimburse himself for or pay out of the estate of the represented person all expenses reasonably incurred in or about the performance of his functions.
In view of the decision in Perpetual Trustees WA Limited and the Public Trustee [2009] WASAT 253, it is settled law that an administrator requires prior authority from the Tribunal to make payments of a benevolent or ex gratia nature from the estate of a represented person. An application for permission to make payments from BW's estate was essential if his plan to support the education of his children and grandchildren was to be implemented in his lifetime. Any one of the family members could have initiated the process and lodged the application.
The Tribunal's view that legal representation was unnecessary in proceedings concerning BW's estate was clear to the parties as a result of the decisions in BW [2008] WASAT 82 and Perpetual Trustees and BW [2008] WASAT 146.
The Tribunal considered the nature and extent of the powers vested in an administrator in Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253. At [54] the Tribunal said:
The powers given to administrators under Div 2 of the GA Act are broad and allow for a large amount of latitude for a plenary administrator to act, as long as it is in the best interests of the represented person. Further, s 71(5) of the GA Act allows the Tribunal, in exercising its jurisdiction under Pt 6 of the GA Act, to take a liberal view of the best interests of the represented person.
The Tribunal went on to say at [58] that:
It is an accepted principle of statutory interpretation that when considering legislation such as the GA Act, which we note is protective legislation, we look at the objects of the GA Act and at the Act as a whole, bearing in mind the 'scheme' created by it. Consideration of the objects and the Act as a whole, assists us to understand and apply provisions of the GA Act so as to ensure our interpretation reflects the meaning intended by Parliament. …
It seems, to the Tribunal, that Perpetual Trustees' decision to initiate the application to make payments to meet the costs of education from BW's estate falls within the ambit of its appointment. The real issue for consideration, whether by the Tribunal under the provisions of s 16(4) of the GA Act or by the administrator and the Public Trustee at a later stage, is whether Perpetual Trustees can justify, and so, recover, the significant costs incurred as a result of the manner by which it determined the application would be made.
The protective nature of the jurisdiction and the need to ensure that expenditure from an estate is necessary and justifiable was made clear by Heenan J in Re The Full Board of Guardianship and Administration Board [2003] WASCA 268, when he said at [44]:
… The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the GA Act can be seen to have meaning and effect as leaning towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see if it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person who's estate is under administration.
At the time of its appointment in 2008, Perpetual Trustees told the Tribunal that it had a comprehensive team of people in house to administer an estate. In the proceeding in 2011, the Tribunal was told that company policy had changed so that all aspects of the application concerning BW were outsourced to a firm of solicitors. The comments made by Member Dean in the two previous decisions remain relevant. It should have been a relatively simple procedure for the administrator to complete and lodge an application form for directions from the Tribunal as to the payment of the costs of education for BW's children and grandchildren.
The GA Act imposes a high duty on all administrators to act in the best interests of the represented person. Section 70 of the GA Act provides some guidance as to how this duty is to be discharged. It states:
(1)An administrator shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible
…
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions[.]
It is likely that BW would have wished the application to be made if it meant that payments to meet the costs of education could be made to his children and grandchildren. It is also likely that he would have wished the application to be made in the most cost effective manner.
Section 71(5) of the GA Act affords an administrator a measure of protection as to his judgment about what constitutes the best interests of a represented person. It states:
In exercising its jurisdiction under this Part the State Administrative Tribunal may take a liberal view of the best interests of the represented person as mentioned in section 4(2), and in particular may, if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the represented person.
Section 72, s 80 (accounts) and s 117 (remuneration) of the GA Act make it clear that an administrator's decisionmaking is subject to direction by the Tribunal and scrutiny by the Public Trustee.
Whilst the GA Act permits an administrator to employ agents to perform skilled tasks required in the management or administration of the estate, the tenor of the section foreshadows the employment of agents with specific skills to ensure proper management of the estate. Section 76 of the GA Act provides:
(1)An administrator may, instead of acting personally, employ and pay an agent, whether a solicitor, accountant, bank, stockbroker or other person, to transact any business or do any act required to be transacted or done in the management or administration of the estate, including the receipt and payment of money, and the keeping and audit of accounts.
(2)An administrator is not liable for any default on the part of an agent employed under subsection (1) in good faith and without negligence.
(3)Nothing in this section affects sections 50 and 53 of the Public Trustee Act 1941.
Section 76(1) of the GA Act confers a discretionary power on an administrator. He is not required to employ anyone to perform his duties, but he has the discretion to do so. Should he decide to exercise the discretion, it must be done in accordance with the requirements of the GA Act, and be done in the best interests of the represented person.
Perpetual Trustees appreciated that an application for prior authority to make payments to meet the costs of education needed to be made. It is unfortunate, however, that it went about the application in a way more suited to litigation before a court. As a result, the many cost effective advantages afforded parties who appear in proceedings before the Tribunal were overlooked.
The law allows an administrator considerable choice in the way in which he decides to discharge his duties. However, in the context of a protective jurisdiction designed to ensure that vulnerable people are protected from exploitation by everyone, including those charged with the responsibility of managing their financial affairs, the choice is not unbridled.

Proceedings before the Tribunal

This proceeding highlights the need for all parties to bear in mind the main objectives of the Tribunal set out in s 9 of the SAT Act:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.

Conclusion

This application for costs falls to be determined by the Tribunal under the provisions of s 16(4) of the GA Act or not at all. This is because s 16(4) is the only section in the GA Act that vests in the Tribunal power to make an order that costs be paid out of the estate of a represented person. The power to make an order is discretionary and subject to the Tribunal having formed a view that the party seeking to recover its costs has acted in the best interests of the person, and that the costs have been incurred relative to those proceedings.
The Tribunal accepts the submission of the Public Trustee that the provisions of s 16 of the GA Act do not override the provisions of s 117 or s 118. However, an administrator's ability to charge remuneration for his services, and the terms on which it may be charged, arise only by an order made under the terms of s 117. This is to be contrasted with the provisions of s 118 of the GA Act, which permit an administrator to reimburse himself for expenses incurred in connection with the performance of his functions. Whilst the observation of the Public Trustee is that the provisions of s 16 of the GA Act are, more often than not, directed to the payment of legal fees is one reflected by the Tribunal's experience, the costs referred to in the section are not limited in any way.
The Tribunal accepts the Public Trustee's further submission that the Tribunal does not have jurisdiction to authorise payment of Kott Gunning's fees from BW's estate. This is because the lawyerclient relationship is between Perpetual Trustees and BW, and not because the Tribunal does not have jurisdiction to make an order that a sum be paid to Perpetual Trustees from BW's estate, that could account for some or all of the fees charged by the firm.
Nothing in the terms of s 76, s 80, s 117 or s 118 of the GA Act constrain the Tribunal's jurisdiction to make an order under s 16(4). Nothing in the wording of any of the sections indicates that the provisions are mutually exclusive and incapable of coexisting. However, the Tribunal considers the provisions of s 16(4) of the GA Act to be fundamental to its ability to determine proceedings before it. It considers that the lack of any fetter on the terms of s 16 reflect Parliament's intention that the section be applied to all parties who appear before it. Had Parliament intended an administrator not to be subject to the provisions of the section, the Tribunal considers that it would have made specific and unambiguous provisions in this regard.
The Tribunal considers it necessary and appropriate to determine the application for costs made by Perpetual Trustees pursuant to the provisions of s 16(4) of the GA Act and in the light of the two previous decisions regarding costs concerning BW. Whilst the Tribunal accepts that the application was made in the best interests of BW, it does not accept that the means by which the administrator went about the application were sensible in all the circumstances of the case.
The Tribunal accepts the submission made by the Public Trustee that the principles outlined in LC and JS [2007] WASAT 127 apply in this matter, and that the application neither fell within the range of possible situations outlined or raised any significant issues.

Order

The Tribunal, for the reasons above, makes the following order:
The application for costs is refused.
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D TAYLOR, SENIOR MEMBER