PERPETUAL TRUSTEES WA LIMITED and THE PUBLIC TRUSTEE - [2009] WASAT 253

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PERPETUAL TRUSTEES WA LIMITED and THE PUBLIC TRUSTEE [2009] WASAT 253

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR M SPILLANE (MEMBER)
MR K BRADLEY (SENIOR SESSIONAL MEMBER)

HEARD: 23, 24, AND 25 SEPTEMBER 2008

DELIVERED : 22 DECEMBER 2009

FILE NO/S: GAA 198 of 2008

BETWEEN: PERPETUAL TRUSTEES WA LIMITED
Applicant
AND
THE PUBLIC TRUSTEE
Respondent
THE REPRESENTED PERSON TC BY HIS LITIGATION GUARDIAN DAVID RAWLINSON
Represented Person

Catchwords:

Review proceedings - Certificate of loss - Payment of legal fees - Best interests of represented person - Payments made by plenary administrator in good faith - Original jurisdiction - Tribunal's functions - Retrospective payments - Gift - Payment on behalf of represented person's guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 16, s 16(4), s 71(2), s 71(5), s 72(2), s 72(3), s 72(3)(a), s 72(3)(b), s 74, s 74(1), s 80, s 80(3)(b), s 80(3)(c), s 80(4), s 80(6), s 80(6a), Sch 1 Pt B cl°12, Div 2, Pt 6
Guardianship and Administration Act 2000 (QLD), s 37, s 37(1), s 37(2)
Interpretation Act 1984 (WA), s 18, s 56(2)
State Administrative Tribunal Act 2004 (WA), s 40(2), s 87

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant:     Mr M Fatharly
Respondent:     Mr M Bowyer
Represented Person       :     Mr D Rawlinson

Solicitors:

Applicant:     Kott Gunning
Respondent:     Office of the Public Trustee
Represented Person       :     N/A

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

EH [2008] WASAT 222
G v K [2007] WASC 319
Guardianship and Administration Tribunal v Perpetual Trustees Queensland Limited [2008] QSC 49
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Perpetual Trustees applied to the Tribunal for a review of a decision of the Public Trustee that there had been a loss to the estate of the represented person for which Perpetual Trustees, as administrator of the estate, was required personally to make restitution in full.
The Public Trustee had issued a certificate of loss dated 4 December 2007, pursuant to s 80(6) of the Guardianship and Administration Act 1990 and the parties agreed that the issue to be decided was:
1)Should Perpetual Trustees, in its capacity as administrator of the represented person's estate, have paid $29,352.88 from the represented person's estate for legal fees, which payment was disallowed by the Public Trustee under s 80(3)(b) of the Guardianship and Administration Act 1990 and made subject of a determination by the Public Trustee under s 80(3)(c) that a loss had occurred?
At an early stage in the matter, the parties agreed that in addition to that matter, which arose in the Tribunal's review jurisdiction, there were further matters in respect of which the parties wished to obtain the Tribunal's direction. The parties, together with counsel for the represented person, agreed that those further matters were:
2)If, as a question of fact, the Tribunal determines that the legal fees paid by Perpetual Trustees (WA) Ltd were paid on behalf of K or on behalf of the represented person and K jointly, can the Tribunal:
(a)direct the administrator to pay the legal fees under s 74 of the Guardianship and Administration Act 1990.
(b)authorise the payment of the legal fees under s 72(3) of the Guardianship and Administration Act 1990 as an ex gratia payment;
(c)authorise the payment of the legal fees under s 16(4) of the Guardianship and Administration Act 1990; or
(d)otherwise authorise the payment of the legal fees?
3)If the Tribunal finds that it can direct or authorise payment of all or any of the legal fees under s 2(a), s 2(b), s 2(c) or s 2(d), should it direct or authorise the payment of all or any of the legal fees?
4)Can the Tribunal direct or authorise the payment by the administrator of future legal fees from the represented person's estate for a party other than the represented person to legal proceedings?
5)If so, under what provisions of the Act can the Tribunal so direct or authorise and should the Tribunal do so?
6)The decision of the Public Trustee to allow the six asterisked payments in the summary of legal payments.
7)Decision of the Public Trustee to allow the sum of $1,800 paid to K for dental expenses.
8)The decision of the Public Trustee not to determine that an interest loss has occurred to the represented person's estate in relation to the monies wrongfully paid by Perpetual Trustees out of the represented person's estate.
In respect of Issue 1, the Tribunal found that Perpetual Trustees could and should have sought authority from the Tribunal to make the payments referred to and that the Tribunal cannot now retrospectively grant that authorisation, and that Perpetual Trustees should not have made the payments for legal fees in the amount comprising the certificate of loss.
In respect of Issues 2 through to 8, the Tribunal having found in Issue 1 that it had no power to retrospectively grant authorisation under s 72(3) of the Guardianship and Administration Act 1990, further found that the same reasoning flowed through in respect of each of those further matters and the Tribunal was either not in a position to deal with those matters as they would have had to authorise payment retrospectively, or the Tribunal was being asked to proffer an advisory opinion based on a hypothetical question.

Description of the parties

To protect the privacy of the person under guardianship and to ensure compliance with the Guardianship and Administration Act 1990 (WA) (GA Act), (Sch 1, Pt B, cl 12), we have used the following descriptors of people who should not be identified:
BC legal:solicitors in New South Wales who acted for the represented person and K in various proceedings in New South Wales as agents for S lawyers;
BN:a senior solicitor at S lawyers who had some initial involvement in receiving instructions and advising K and the represented person;
DW:solicitor with S lawyers;
EM:solicitor at S lawyers with the primary conduct of the matters, the subject of the legal fees referred to in these proceedings;
G:the represented person's paternal grandmother;
K:the represented person's mother;
LRB:consultant whose costs were paid by Perpetual Trustees;
M:the represented person's father;
NSW:the town in New South Wales where the local court proceedings were filed and conducted;
Represented person: the person the subject of a guardianship order and also an administration order which is the subject of these proceedings;
S lawyers:the Western Australian legal firm located outside of the Perth metropolitan area, whose accounts for legal work are the subject of these proceedings;
We have also used the following defined terms:
'GA Act':Guardianship and Administration Act 1990
'SAT Act':State Administrative Tribunal Act 2004
'review proceedings': the proceedings before the Tribunal with respect to Perpetual Trustees' application under s 80(6a) of the GA Act. The relevant parties are:
•Perpetual Trustees;
•Public Trustee; and
•the represented person by his litigation guardian
'original proceedings': the proceedings before the Tribunal with respect to Perpetual Trustees' application to the Tribunal for authorisation or directions regarding payment of legal fees incurred after March 2007 from the represented person's estate. The relevant parties are:
•Perpetual Trustees;
•Public Trustee;
•the represented person by his litigation guardian;
•G;
•M who declined to be a party; and
•K who did not participate in any way.
'Subsequent review proceedings': the application made by the litigation guardian on 16 October 2008 seeking review by the Tribunal of a number of decisions made by the Public Trustee as set out in the application. The relevant parties are:
•Perpetual Trustees;
•Public Trustee; and
•the represented person by his litigation guardian.

Nature of the proceedings

These proceedings were somewhat complicated and were finalised over a drawn out period when final papers were filed on 16 October 2008. Nonetheless, that does not excuse the lengthy delay in publishing this decision and written reasons. The Tribunal regrets this delay and sincerely apologises to the parties and others involved in the proceedings for the delay and any inconvenience it might have caused.

The applications

On 24 January 2008, the represented person's administrator, Perpetual Trustees, applied to the Tribunal as follows:
Under letter of 2 January 2008, the Public Trustee determined that there had been a loss to the estate of $29,352.88 in regards to the payment of legal fees to [S lawyers] for which the administrator was required personally to make restitution in full, and issued to the administrator a Certificate of Loss dated 4 December 2007, pursuant to s 80(6) of the Guardianship and Administration Act 1990 (WA) in that sum. The administrator seeks to have that decision of the Public Trustee reviewed under s 80(6a), authorising the said payments and setting aside the Certificate of Loss.
During the preliminary stages of the matter, when attempting to identify the particular issues to be decided, it became clear that, in addition to that matter under s 80(6) of the GA Act, which is in the Tribunal's review jurisdiction, there were further matters in respect of which the parties wished to obtain the Tribunal's determination in the exercise of its original jurisdiction.

The issues

The issues were identified by the Tribunal, and it was agreed that all matters should be heard together. On 30 July 2008 the Tribunal made the following orders:
2.[T]he issues to be decided by the Tribunal at the final hearing of these proceedings are;
(a)with respect to the application under s 80(6a) ('review proceedings') of the Guardianship and Administration Act 1990 (the Act):
'1.Should Perpetual Trustees WA Limited in its capacity as administrator of the represented person's estate, have paid $29,353.88 [sic] from the represented person's estate for legal fees which payment was disallowed by the Public Trustee under s 80(3)(b) of the Act and made the subject of a determination by the Public Trustee under s 80(3)(c) that a loss had occurred?';' and
(b)with respect to the application made by Perpetual Trustees WA Limited seeking the Tribunal's authorisation or directions regarding payment of legal fees from the represented person's est[a]te from March 2007 ('original proceedings'):
'2.If, as a question of fact, the Tribunal determines that the legal fees paid by Perpetual Trustees WA Limite[d] were paid on behalf of [K] or on behalf of the represented person and [K] jointly, can the Tribunal:
(c)direct the administrator to pay the legal fees under s 74 of the Act;
(d)authorise [the] payment of the legal fees under s 72(3) of the Act as an ex gratia payment;
(e)authorise the payment of the legal fees under s 16(4) of the Act; or
(f)otherwise authorise the payment of the legal fees?[']
3.If the Tribunal finds that it can direct or authorise payment of all or any of the legal fees under s 2(a), 2(b), 2(d) [sic], or 2(d) should it direct or authorise the payment of all or any of the legal fees?
4.Can the Tribunal direct or authorise the payment by the administrator of future legal fees from the represented person's estate for a party other than the represented person to legal proceedings?
5.If so, under what provision of the Act can the Tribunal so direct or authorise and should the Tribunal do so?;
During preliminary hearings, the Tribunal, constituted by Deputy President Judge Eckert and Member M Spillane, came to the view that it was in the best interests of the represented person that a litigation guardian be appointed. The Tribunal appointed Mr D Rawlinson, barrister and solicitor, as the represented person's litigation guardian for the proceedings, pursuant to s 40(2) of the SAT Act.
At the opening of the final hearing, the litigation guardian, with the consent of all other parties, raised further issues for determination. It was agreed that those items should be set out in writing and filed subsequent to the hearing.
Consequently, the Tribunal received a letter from the litigation guardian, dated 16 October 2008, stating:
Pursuant to S 80 (6a) of the Guardianship and Administration Act [1990 (WA)], I hereby make application that the Tribunal review the decisions of the Public Trustee;
1)to allow the payments asterisked in the Summary of Legal Payments attached to this letter;
2)to allow the sum of $1,800 paid to [K] for dental expenses; [and]
3)not to determine that an interest loss has occurred to [the represented person's] estate in relation to the monies wrongfully paid by Perpetual Trustees [WA] out of [the represented person's] estate.
The 'Summary of Legal Payments' referred to at (1) above is reproduced in full below, following the chronology of agreed facts.

Agreed facts

As the payments, the subject of the proceedings were paid by Perpetual Trustees over an extended period and concerned a number of different legal proceedings and issues, the parties were directed to file an agreed statement of facts, in chronological order, identifying all the relevant actions, payments and correspondence.
In compliance with that direction, a statement of agreed facts for the original proceedings was filed with the Tribunal, dated 22 July 2008, and subsequently updated on 20 August 2008 which stated as follows:
24 December 2004      K seeks appointment of Perpetual Trustees as administrator of [the represented person].
1 February 2005         G applies to administer [the represented person's] estate.
17 March 2005           The State Administrative Tribunal ('the Tribunal') appoints Perpetual Trustees as the plenary administrator of [the represented person].
27 July 2006              K applies to the Tribunal for the appointment of a guardian. (M also makes an application, but it is not clear to the Public Trustee when this was. The Tribunal treated G as having made an application.) These applications are referred to as GAA 1448 and 1449 of 2006.
1 August 2006            The Tribunal parthears an application for review of the administration order. There is a telephone link with M, [the represented person], K, G and a lawyer from [S lawyers]. There seems to be an understanding that the guardianship applications are being heard on that day, when in fact they are not.
2 August 2006            By letter, the Tribunal advises Perpetual Trustees, amongst other things, that:
'Applications have … been received for the appointment of a guardian for [the represented person] from both [M] and [K]. The applications have been referred to the Public Advocate for investigation. As the appointed administrator Perpetual Trustees is a party to this proceeding and may wish to make submissions regarding these applications.'
13 September 2006      The Tribunal reappoints Perpetual Trustees as the plenary administrator of [the represented person].
The Tribunal also orders that the guardianship application be adjourned to 28 November 2006 and that the Public Advocate investigate and file a written report to the Tribunal on various matters.
14 September 2006      [S lawyers] invoice [No] 1113805' to K re 'Civil Action by [M]' and 'VRO [M]' for $817.30.
26 September 2006      Perpetual Trustees pays [S lawyers'] account of $4,624.10 dated 21 September 2006 (which has an itemised account dated 14 September 2006) with respect to the 'State Administrative Tribunal Matter'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2006 to 16 March 2007) as 'payment of legal fees for work done in representing [the represented person] and [K] at 3 hearings before the State Administrative Tribunal'.
28 November 2006      The Tribunal orders, amongst other things, that:
-the guardianship application be adjourned to a directions hearing on 7 February 2007 and a substantive hearing on 26 February 2007; and
-copies of various documents 'be released to the legal representatives of applicants'.
7 December 2006        Perpetual Trustees pays consultancy fees of [LRB] of $845.00 with respect to the guardianship application.
20 December 2006      The Tribunal amends its orders of 28 November 2006 in the guardianship application.
2 January 2007           Perpetual Trustees pays $10,992.40 of [S lawyers'] account of $11,837.40 dated 7 December 2006 with respect to the 'State Administrative Tribunal Matter'. The other $845.00 represents the consultancy fees of [LRB] that were already paid. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2006 to 16 March 2007) as 'payment of further legal fees for work done in representing [the represented person] and [K] before the State Administrative Tribunal to determine guardianship of [the represented person]'.
29 January 2007         [S lawyers'] invoice [No] 1114326 to [K] re 'Civil Action by [M]' and 'VRO - [M]'.
7 February 2007         The Tribunal makes further directions in the guardianship application.
21 February 2007        Perpetual Trustees pays [S lawyers'] accounts $817.30 dated 14 September 2006 and $865.75 dated 29 January 2007 (a total of $1,683.05). They are both with respect to 'Civil Action by [M]' and 'VRO - [M]'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2006 to 16 March 2007) as 'payment of legal fees for work done in representing [the represented person] and [K] in proceedings issued by [M] in Local Court [NSW] re matter of detained goods and issue of VRO'.
Perpetual Trustees pays $150.00 (it would seem to [S lawyers]), on account of travel expenses for [DW] to give evidence. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2006 to 16 March 2007) as '[DW] payment of travelling expenses re witness statement re matter of guardianship of [the represented person]'.
Perpetual Trustees pays [BC legal's] account of $2,195.60 dated 17 January 2007 with respect to 'Agency - [S lawyers'] and '[K] & [the represented person]'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2006 to 16 March 2007) as 'payment of legal fees for work done in representing [the represented person] and [K] in proceedings issued by [M] in Local Court at [NSW] re damages claim for detained property'.
26 February 2007        At the guardianship hearing, the Tribunal appoints K and the Public Advocate limited guardians of [the represented person] (with different functions).
(date not known)        G applies to the Supreme Court for leave to appeal the decision of the Tribunal. The Public Trustee is not aware of this at the time.
1 March 2007             [S lawyers] give K a Notice of Withdrawal of Trust Money of $150.00, with respect to 'Appeal of State Administrative Tribunal Determination - [the represented person]', on account of travel expenses for [DW] to give evidence.
7 March 2007             Perpetual Trustees pays [S legal's] account of $13,736.38 dated 2 March 2007 (which has an itemised account dated 1 March 2007 and an account from Stephen G Cohen, clinical psychologist) with respect to the 'State Administrative Tribunal Matter'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2006 to 16 March 2007) as 'payment of final legal fees for work done in representing [the represented person] and [K] before the State Administrative Tribunal to determine guardianship for '[the represented person]'.
Perpetual Trustees pays Steven Jones of counsel's account of $5,665.00 dated 28 February 2007, in the matter of '[K]'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2006 to 16 March 2007) as 'payment of Counsel's fees for work done in representing [the represented person] and [K] before the State Administrative Tribunal to guardianship of [the represented person]'.
21 March 2007 Pursuant to section 80 of the Guardianship and Administration Act 1990, Perpetual Trustees submits to the Public Trustee:
-Account No 2 (dated 21 March 2007); and
-portfolio statement (dated 16 March 2007), for the period 17 March 2006 to 16 March 2007.
2 April 2007              Perpetual Trustees pays [BC legal's] account of $1,455.30 dated 13 March 2007 for '[K] and [the represented person]' 'Agency Matter'). Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of final legal fees for work done in representing [the represented person] and [K] in proceedings issued by [M] in Local Court at [NSW] re damages claim for detained property'.
4 April 2007              Perpetual Trustees pays [BC legal's] account of $653.40 dated 13 March 2007 for 'Agency [M]. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of legal fees for work done in representing [the represented person] and [K] before the Local Court [NSW] to determine guardianship for [the represented person] and subsequently determined by the State Administrative Tribunal'.
Perpetual Trustees pays [S lawyers'] account of $1,218.80 (dated 22 September 2006), for 'Children's Matters'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of legal fees for work done in representing [the represented person] and [K] before the Local Court [NSW] to determine guardianship of [the represented person] and subsequently settled by the State Administrative Tribunal'.
12 April 2007             Perpetual Trustees pays $650.00 and records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as '[M] remittance being payment directed under Order by Local Court at [NSW] in matter re damages claim for detained property and defended by [the represented person] and [K].'
8 May 2007By letter, the Public Trustee asks Perpetual Trustees for a breakdown of one of [S lawyers'] bills.
10 May 2007              The Tribunal delivers reasons for decision in the guardianship application (TJC [2007] WASAT 105).
14 May 2007              By letter, Perpetual Trustees responds to the Public Trustee's query of 8 May.
29 May 2007              Perpetual Trustees pays [S lawyers'] account of $815.45 dated 22 May 2007 with respect to 'Civil Action by [M)' and 'VRO - [M]'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of final legal fees for work done in representing [the represented person] and [K] in proceedings issued by [M] in Local Court at [NSW] re matter of detained goods and issue of VRO'.
Perpetual Trustees pays [S lawyers'] account of $1,331.69 dated 22 May 2007 with respect to '[K] Children's matter' and '[the represented person]'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of further legal fees for work done in representing [the represented person] and [K] before the Local Court at [NSW] to determine guardianship for [the represented person] and subsequently settled by the Sate [sic] Administrative Tribunal for the period September 2006 to April 2007'.
Perpetual Trustees pays [BC legal's] account of $108.90 dated 15 May 2007 for 'Agency [M]'. Perpetual Trustees records this (in its portfolio statement .for the period 17 March 2007 to 16 March 2008) as 'payment of further legal fees for work done in representing [the represented person] and [K] in Local Court at [NSW] re damages claimed for detained property'.
By letter, the Public Trustee asks Perpetual Trustees, amongst other things, whether it was satisfied that the legal expenses paid from [the represented person's] estate (in the period 17 March 2006 to 16 March 2007) did not require the Tribunal's authorisation.
7 June 2007 By letter, Perpetual Trustees replies, stating that, amongst other things, that [sic] it was 'satisfied that the payment of the legal fees [in the period 17 March 2006 to 16 March 2007] were in the best interests of [the represented person]' and that it was 'of a further belief that [its] authority for all the abovementioned payments [was] contained in numerous sections of the Guardianship and Administration Act 1990.' 'However, should you feel that this is not so, we respectfully request that you retrospectively approve of our actions, reiterating that they were in the best interests of [the represented person]. We also seek your approval to meet any future legal costs for a similar nature, should such matters arise'.
27 June 2007              Perpetual Trustees pays [S lawyers'] account of $3,016.68 dated 22 June 2007 (which has an itemised account dated 19 June 2007) with respect to 'State Administrative Tribunal Matter'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of legal fees for work done in representing [the represented person] and [K] in the matter of Appeal to the Supreme Court by [G] in respect of guardianship for [the represented person].
Perpetual Trustees receives reimbursement from [S lawyers] of $1,239.35. Perpetual Trustees had paid this twice: once directly to Steven G Cohen clinical psychologist on 2 March 2007, and once to [S lawyers] on 7 March 2007 as part of their account of 2 March 2007.
4 July 2007By letter, the Public Trustee requests Perpetual Trustees to apply to the Tribunal for authorisation for the payments made to [S lawyers]. [At the time, the Public Trustee was only looking at the payments made in the period 17 March 2006 to 16 March 2007.]
6 August 2007            The Public Trustee writes a reminder letter to Perpetual Trustees.
13 August 2007          By e-mail, Perpetual Trustees says that an application to the Tribunal is being prepared.
12 September 2007      The Public Trustee writes a second reminder letter to Perpetual Trustees.
18 September 2007      By e-mail, Perpetual Trustees says that an application to the Tribunal is being prepared.
20 September 2007      G's application to the Supreme Court for leave to appeal the decision of the Tribunal is heard. The Court reserves its decision.
10 October 2007         The Public Trustee writes a third reminder letter to Perpetual Trustees.
15 October 2007         By e-mail, Perpetual Trustees says that an application to the Tribunal is being prepared.
Perpetual Trustees pays [S lawyers'] account of $4,110.05 dated 27 September 2007 with respect to 'Appeal of State Administrative Tribunal Determination - [the represented person]'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of further legal fees for work done in representing [the represented person] and [K] in the matter of Leave to Appeal and Appeal to the Supreme Court by [G] in respect of guardianship for [the represented person]'.
Perpetual Trustees pays Wendy Buckley of counsel's account of $7,927.00 dated 24 September 2007, for the application for leave to appeal in [the represented person's] matter. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of Counsel's fees for work done in representing [the represented person] and [K] in the matter of Leave to Appeal and Appeal to the Supreme Court by [G] in respect of guardianship for [the represented person]'.
4 December 2007        By letter, the Public Trustee advises Perpetual Trustees, amongst other things, that a Certificate of Loss had been drawn up.
21 December 2007      The Supreme Court delivers its decision ('G' v 'K' [2007] WASC 319). It grants leave to appeal the decision of the Tribunal, allows the appeal and remits the decision to the Tribunal for redetermination. The Court does not make any orders as to costs. One of the orders, however, is: 'There be liberty to apply.'
2 January 2008           The Public Trustee officially issues and forwards the Certificate of Loss to Perpetual Trustees in the amount of $29,352.88. [Although not stated in the certificate, this figure consists of the following payments to [S lawyers]:
-$4,624.10 on 26 September 2006;
-$10,992.40 on 2 January 2007; and
-$13,736.38 on 7 March 2007.
This figure does not include any of the following payments:
-the consultancy fees of [LRB] of $845.00 paid on 7 December 2006;
-[S lawyers'] accounts of $817.30 and $865.75 (a total of $1,683.05) paid on 21 February 2007;
-[BC legal's] account of $2,195.60 paid on 21 February 2007;
-[DW's] travelling expenses of $150.00 paid into trust on 21 February 2007; and
-the counsel fees of Steven Jones of $5,665.00 paid on 7 March 2007.
3 January 2008           Wendy Buckley of Counsel renders an account for $660.00 for taking judgment in the Supreme Court appeal. Perpetual Trustees are to confirm whether this was paid and, if so, when.
14 March 2008           The Tribunal orders, amongst other things, that:
-the guardianship application be adjourned to a further directions hearing on 11 April 2008;
-the Public Advocate is appointed as [the represented person's] litigation guardian; and
-Perpetual Trustees pays the costs of a solicitor up to $5,000, and to seek further directions if it appears that those costs will exceed $5,000.
29 June 2005 to
16 March 2008           Perpetual Trustees collects a total of $156,198.31 in professional fees (including a $30,000.00 establishment fee).
2 April 2008 Pursuant to section 80 of the Guardianship and Administration Act 1990, Perpetual Trustees submits to the Public Trustee:
-Account No 3; and
-portfolio statement,
for the period 17 March 2007 to 16 March 2008.
SUMMARY OF LEGAL PAYMENTS
No.Date paid                 Payee  Amount
Guardianship application in the Tribunal
1.        26 September 2006     [S lawyers]  $ 4,624.10
2.        7 December 2006      [LRB]  $    845.00*
3.        2 January 2007         [S lawyers]  $10,992.40
4.        21 February 2007      [S lawyers]  $    150.00*
5.        7 March 2007           [S lawyers]  $13,736.38
6.        7 March 2007           Steven Jones of counsel         $ 5,665.00*
Guardianship appeal in the Supreme Court
7.        27 June 2007            [S lawyers]  $ 3,016.68
8.        15 October 2007       [S lawyers]  $ 4,110.05
9.        15 October 2007       Wendy Buckley of counsel    $ 7,927.00
10.      (unclear if paid)        Wendy Buckley of counsel    $     660.00
Matters in New South Wales
11.      21 February 2007      [S lawyers]  $    817.30*
12.      21 February 2007      [S lawyers]  $    865.75*
13.      21 February 2007      [BC legal]  $ 2,195.60*
14.      4 April 2007             [BC legal]  $     653.40
15.      2 April 2007             [BC legal]  $ 1,455.30
16.      4 April 2007             [S lawyers]  $ 1,218.80
17.      12 April 2007           'payment directed under Order' $     650.00
18.      29 May 2007            [S lawyers]  $     815.45
19.      29 May 2007            [S lawyers]  $ 1,331.69
20.      29 May 2007            [BC legal]  $     108.90
* not in dispute in the present Tribunal proceedings
Items 1, 3 and 5 were the subject of the certificate of loss.
Items 7 to 10 and 14 to 20 were not the subject of the Certificate of Loss, but are the subject of the application in the Tribunal's original jurisdiction.

The payments asterisked in the above summary of legal payments, although not disputed by the Public Trustee, have been identified as payments to which the litigation guardian objects and seeks review. They are the subject of the additional review proceedings.

Issue 1: Should Perpetual Trustees (WA) Ltd, in its capacity as administrator of the represented person's estate, have paid $29,352.88 from the represented person's estate for legal fees, which payment was disallowed by the Public Trustee under s 80(3)(b) of the Act and made subject of a determination by the Public Trustee under s 80(3)(c), that a loss had occurred?

The amounts making up the sum of $29,352.88, which constitute the payments, the subject of the certificate of loss, paid by the administrator prior to March 2007, are identified as No 1, No 3 and No 5 in the summary, namely:
1)payment of $4,624.10 to [S lawyers] on 26 September 2006;
3)payment of $10,992.40 to [S lawyers] on 2 January 2007; and
5)payment of $13,736.38 to [S lawyers] on 7 March 2007.

Submissions and evidence

In its covering letter to the Tribunal, dated 24 January 2008, requesting that the Tribunal cancel the certificate of loss, Perpetual Trustee summarised the circumstances of the payments as follows:
1.There have been a number of hearings in respect of the represented person in the last 2 years, and in particular there have been hearings on 1 August 2006 (2 hours), 13 September 2006 (5 hours), 28 November 2006 (4.5 hours), 26 February 2007 (6.5 hours) for which the interests of the represented person were in issue. Perpetual, as plenary administrator, formed the view that it was in the interests of the represented person to pay for legal representation out of the estate for [S lawyers] to appear on his behalf and on behalf of his mother, [K], who is his primary carer and who has through the hearings been appointed a limited Guardian for him.
2.The estate is worth in excess of $7,000,000 and there has been substantial dispute between family members over [the represented person's] custody, place of residence, guardianship and rights of access to him, hence there have been many hearings and a large amount of legal costs incurred.
3.[K], we understand is a full time carer for [the represented person] in addition to having 4 other children, 3 of whom are under 18. It is impossible for her to work in those circumstances and impossible for her to afford legal representation so that she herself could arrange for legal representation and pay for it.
4.The payments made by Perpetual were made in good faith and in what was believed to be in the interests of [the represented person]. They were not, however, expressly authorised under section 16 of the Guardianship and Administration Act by directions of the Tribunal prior to the payments being made, and we understand from [S lawyers] that no express costs orders were sought by them at the hearing.
5.We understand that it was the administrator's belief that, they were assisting [K] to act in the best interests of [the represented person] by enabling her to engage solicitors and to act as an advocate on his behalf. In so doing, while it is regrettable that no express directions or orders were obtained authorising the payment to [S lawyers], there are a number of sections of the Act relating to a plenary administrator making payments out of the estate of the represented person.
At the final hearing of these proceedings, the principal witness called to give evidence on behalf of Perpetual Trustees was Mr Kevin Kegg, a senior trust manager who was at all relevant times the person responsible within Perpetual Trustee's organisation to make the relevant decisions as to payments out of the represented person's estate.
In his witness statement he explained his role and the facts leading up to the first request for payment of the disputed funds from the represented person's estate, he states at [5] [18]:
5.The matter involving the estate of [the represented person] matter was business which was originally brought into the office in around 2004. A substantial damages award had been made in NSW in court proceedings but the money itself came from Perth. As that money came in, budgets were prepared and decisions were taken regarding the allocation of those funds. This was a substantial estate of approximately $8,000,000.
6.I was responsible for managing [the represented person's] affairs as the Trust Manager. There are policies regarding the expenditure of funds including the acquisition of property and any needs of the represented person. Some of those more significant decisions were discussed and approved with my Line Manager, Shamal Dass, who was the overall manager of trusts.
7.I personally had no contact with [the represented person] or his mother. We have client relationship managers who deal with all contact with the represented person and his family and any relevant information is then referred to me as the trust manager. I had no role in contact with the family itself, just in the administration of the estate.
8.The Client Relationship Manager, Anton Murphy, had day to day contact with [K] but had no authority to make decisions regarding the application of funds. That was done by the trust managers themselves.
9.I understand that [K] would call Anton regularly. The procedure was that the client would make a request to the relationship manager for funds to be released for a particular purpose and he or she would be asked to put that request in writing. At Perpetual, we always dealt with [K] as [the represented person's] guardian.
10.Part of my role was to approve budgets and to try to anticipate the sorts of requests for funds that we might receive not included within the budget. All major decisions would already have been catered for but there would nevertheless often be one off requests which needed to be confirmed in writing.
11.The court proceedings began, as far as I'm aware, with the guardianship proceedings. [EM] from [S lawyers] telephoned me around September 2006. She wanted to know whether the trust would pay the costs that had been incurred in respect of the various proceedings in respect of which they had been instructed.
12.[EM] wrote to Perpetual Trustees on 21 September 2006. She advised Perpetual in that letter that she acted 'on behalf of [K] and through her [the represented person] in three matters before the State Administrative Tribunal, relating to the Public Trustee review of fees, [K's] application for guardianship of [the represented person] and [M's] application for guardianship.
13.In that letter [EM]:
(a)stated that she had attended hearings with [the represented person] and his mother on 1 August and 13 September;
(b)stated that she considered both [K] and [the represented person's] continued representation at the hearings to be essential;
(c)asked whether Perpetual Trustees could let her know if [K] and [the represented person's] legal costs of preparing for and attending the above hearings would be paid from [the represented person's] estate; and
(d)enclosed a copy of [S lawyers'] account to [K] and [the represented person] for attendance at the Tribunal on 1 August and 13 September 2006.
14.For me, making the decision as the Trust Manager, there was one overriding guiding principle, namely what was in [the represented person's] best interests? This encompassed aspects of both what was directly in his interests and also in his mother's interests and there were clearly going to be circumstances in which their interests overlapped. The general principles applicable in such matters are referred to in Perpetual's 'Policy and Procedure'.
15.It has to be remembered that there was a record of violence from my reading of various documents within the family at that stage and it was my view that [the represented person's] best interests would be served by [K] being the guardian. We therefore agreed to pay all of the costs of the proceedings so far.
16.On 25 September 2006, I wrote via email to [EM] on behalf of Perpetual Trustees informing her that:
(a)I had received her letter dated 21 September; and
(b)Perpetual Trustees were prepared to meet [S lawyers'] costs for [K] and [the represented person] from [the represented person's] trust account.
17.On 26 September 2006, I wrote to [EM] via email informing her that 'The funds will be cleared into your trust bank account on 27/09/06.'
18.Perpetual Trustees subsequently paid [S lawyers'] account dated 21 September 2006 in the amount of $4,624.10 through [the represented person's] trust fund.
This first request relates to the first of three items in the certificate of loss identified as No 1 in the summary of legal payments.
The second item in the certificate of loss was a payment dated 2 January 2007, again to S lawyers, for $10,992 identified as No 3 in the summary of legal payments.
Mr Kegg dealt with this in his witness statement at [19] [28] where he stated:
19.[EM] then wrote a letter to Perpetual Trustees dated 9 November 2006. In that letter, re ['the represented person'], the letter commenced 'As you are aware, we act on behalf of [K]and through her, [the represented person], in relation to matters numbered GAA 1448/2006 and GAA/2006 which are continuing.'
20.The letter pointed out the matters that were to be heard again before the substantive hearing at the Tribunal on 28 November 2006, and that the volume of evidence sought by the Tribunal in their order of 13 September 2006 was considerable. The evidence included at least two files of documents that were too large to photocopy and send to [S lawyers]. [EM's] conclusion was that it would be advantageous to have a local Perth agent to attend to inspection.
21.[EM] suggested in the letter engaging a barrister at an estimated cost of $1,500 per day for 2 days, who would need to be engaged quickly.
22.[EM] asked in that letter whether Perpetual Trustees, as administrator, 'would be prepared to indemnify [K] for the costs of this legal representation out of the Estate'.
23.In that letter, [EM] enclosed a copy of orders made on 13 September 2006 for Perpetual Trustees.
24.By letter dated 15 November 2006, Mr Anton Murphy of Perpetual Trustees wrote to [EM] 'Re [the represented person]' stating that 'In a nutshell we have no objections for [the represented person's] trust meeting the costs of travel, accommodation and legal fees, as detailed, on the understanding that the resolution of the current matters are in the long term best interests of [the represented person]'.
25.On 7 December 2006, [EM] wrote a letter to Perpetual Trustees informing them that:
(a)[G] had filed a formal application to be appointed as guardian; and
(b)The matter had been adjourned for a directions hearing pm 7 February 2007 and a hearing on 26 February 2007.
26.This letter enclosed an invoice of [S lawyers'] costs and disbursements dated 7 December 2006 in the amount of $10,992.40.
27.On 2 January 2007, I wrote to [EM] via email thanking her for her letter dated 7 December 2006 and informing her that. Perpetual Trustees had credited [S lawyers'] account with an amount of $10,992.40 (minus an amount of $845.00 previously paid).
28.On 2 January 2007, Perpetual Trustees subsequently settled [S lawyers'] account dated 7 December 2006 in the amount of $10,992.40.
The third and final item in the certificate of loss is a payment for $13,736.38, dated 7 March 2007, again to S lawyers, identified as No 5 in the summary of legal payments.
Mr Kegg dealt with that payment at [29] [32] of his witness:
29.On 2 March 2007, [EM] wrote a letter to Perpetual Trustees dated 1 March 2007 enclosing [S lawyers'] invoice of costs dated 2 March 2007, in the amount of $13,736.38 and advising of Stephen Jones' fees of $5,656.00 of 28 February 2007.
30.On 7 March 2007, I wrote a letter to [EM] informing that:
(a)Perpetual Trustees had credited [S lawyers'] trust account in the amount of $13,736.38, being payment for [S lawyers'] memorandum of costs dated 2 March 2007; and
(b)a cheque was enclosed in favour of Steven Jones for $5,665.00 in payment of his fees of 28 February 2007.
31.On 7 March 2007, Perpetual Trustees paid [S lawyers'] account dated 2 March 2007 in the amount of $13,736.38.
32.On 7 March 2007, Perpetual Trustees subsequently paid Steven Jones' account dated 28 February 2007 in the amount of $5,665.00.
Mr Kegg made the decision to make the relevant payments that are the subject of the certificate of loss. His reasons for making the first payment are set out at [15] of his witness statement where he stated (our emphasis):
It has to be remembered that there was a record of violence from my reading of various documents within the family at that stage and it was my view that [the represented person's] best interests would be served by [K] being the guardian. We therefore agreed to pay all of the costs of the proceedings so far.
No further detail as to the reasons underlying Mr Kegg's decision are to be found in his witness statement. However, his replies to questions in crossexamination throw further light on the matter; firstly, to counsel for the Public Trustee, and second, in replies to questions from the litigation guardian.
Mr Bowyer:Did you form the view that [the represented person's] best interests were served by having [K] as the guardian?
Mr Kegg:Absolutely.
…
I agreed to pay the costs after going through our policies and procedures as to why we should pay them.
Mr BowyerNow, that document that I've just read to you says that [S lawyers] acted on behalf of [K], and through her they acted for [the represented person]:
Mr Kegg:Yes.
…
Mr Bowyer:Now, if the document had just said that they acted on behalf of [K] and were applying for her to be [the represented person's] guardian … would you have still paid those costs?
Mr Kegg:Absolutely. I have no qualms about that whatsoever.
Mr Bowyer:Did you see any problem in [S lawyers] acting for both [K] and for [the represented person]?
Mr Kegg:No, I did not, solely because it comes back to a question - if I think of this - if I had asked [the represented person] what did he require, one of the Guardianship Administration Act there says that whatever possible, you consult with the patient, you asked the patient what he feels. [The represented person] may not have been cognitive to do so, but nevertheless if I was acting for [the represented person] and her mother was acting in the best interests of [the represented person], I would have said, 'All right, you are still - as far as I'm concerned, mother, you are [the represented person].'
When directed to his state of mind before making the payment arising out of the first request that Perpetual Trustees received on 21 September 2006, there was the following exchange with counsel for the Public Trustee:
Mr Bowyer:… were you aware at the time, Mr Kegg, of any allegations made against [K] concerning her care of [the represented person]? … We're talking here about just before you made that first payment?
…
Mr Kegg:No, I did not. All I saw was an AVO order ultimately.
Mr Bowyer:So you saw that an AVO order had been made against …?
Mr Kegg:Yes, but I understand there were complications with the family from our client relationship manager, Anthon Murphy, who had discussed various matters with [K] [sic]. I understand it was to (indistinct) relationship with the families, but that was not a judgment for me to make.
Mr Kegg was then asked by counsel as to whether he was aware of the provisions of the SAT Act in respect of the power to award costs:
Mr Bowyer:Were you aware in September 2006 that there was a provision in the State Administrative Tribunal Act that said that parties bear their own costs in proceedings?
Mr Kegg:No - no, sir, I did not look at that, sir. I looked at the Guardianship and Administration Act as to how we were appointed, and what we couldn't do as opposed to what we could.
The litigation guardian also put questions to Mr Kegg in relation to his state of mind in these matters, including:
Mr Rawlinson:        Do you recall seeing a provision in the act that said, in effect, that an administrator should not make a payment in respect of a debt or demand that the represented person is not obliged by law to pay without ---?
Mr Kegg:Of course I did.
Mr Rawlinson:        --- without the authority of the State Administrative Tribunal?
Mr Kegg:That, to my opinion, did not cover these circumstances. They're called ex gratia payments and I could not see, sir, how that related to what I was doing directly to meet [the represented person's] costs by his mother.
Mr Rawlinson:        Wasn't it the case that these bills from [S lawyers] were debts or demands that [the represented person] was not obliged by law to pay?
Mr Kegg:No. I can only say no, sir, I do not agree with that.
Mr Rawlinson:        Why don't you agree with that?
Mr Kegg:Because they were in [the represented person's] best interests. In other words, if [the represented person] had not been able - if the mother had not been able to meet these costs, for the benefit of providing the support that [the represented person] had, and also for being appointed again as his carer, I was loathe to think what would have happened to [the represented person's] wellbeing.
…
Mr Rawlinson:        So you considered that all the mother's legal bills - or coverage by Perpetuals of all of the mother's legal bills was in the interests of [the represented person]?
Mr Kegg:Absolutely, sir.
…
Mr Rawlinson:        And that was because the mother didn't have the capacity to pay?
Mr Kegg:Absolutely, sir.
The litigation guardian then put to Mr Kegg that Perpetual Trustees was in fact taking the side of the mother in proceedings where a number of parties, including the mother and the grandmother, were applying to be guardian:
Mr Rawlinson:        You're taking the side of the mother, aren't you?
Mr Kegg:No, sir, I disagree. We’re taking the side of [the represented person] by his mother.
Mr Rawlinson:        You're aware that there are guardianship proceedings on foot in Western Australia and you're aware that there are four competing applications in those proceedings?
Mr Kegg:Absolutely, sir.
Mr Rawlinson:        And those applications are of the mother, the husband, [M]? … the grandmother, [G] … and also the Public Advocate?
…
And you decided to fund one of them?
Mr Kegg:No, we decided to fund the one that requested us to fund as - we're going back to document APP499, which is policies and procedures of Perpetual, that says the existing supportive relationships are to be maintained. [The represented person] was always with the care of his mother, on the understanding - when he came to us, [the represented person] was cared by his mother. Perpetual had a responsibility to maintain that relationship …
It was then put to Mr Kegg by the Deputy President, Judge Eckert in clarifying a question from the litigation guardian as to whether the represented person needed to be represented separately from K:
Judge Eckert: What Mr Rawlinson is asking is, did you at any stage consider whether [the represented person] needed to be represented separately from how [K] was represented?
Mr Kegg:No, your Honour, I did not.
Mr Rawlinson … you made these decisions by yourself. You didn't consult with Schamelle Daas or lawyers within Perpetual or indeed lawyers outside Perpetual?
Mr Kegg:No. I said to you, sir, that I discussed it with [S lawyers] and then the authority I had as the senior trust manager under the delegation of authority gave me the right to make those decisions.

When pressed by the litigation guardian in relation to the proceedings in New South Wales, the following exchange took place:
Mr Rawlinson: Those proceedings had nothing to do with [the represented person], did they?
Mr Kegg:No, they were between mother and father … I was frightened that there could have been some substantial damage and I come back again - I'm sorry if I say this again. One of our policies and procedures is, the person must be protected from neglect, abuse and exploitation. And I thought if I had not paid those costs, it may have turned violent.
And later Mr Kegg states:
As far as I was concerned, those costs were always applicable to [the represented person's] wellbeing and I can't say any more than that.
…
Mr Rawlinson: So it's fair to say that any legal costs that you thought were reasonably incurred by [K] … should be paid out of [the represented person's] estate. Is that fair?
Mr Kegg:Absolutely, sir. Absolutely.
In respect of the $650 damages award paid by Perpetual Trustees from the represented person's estate (which we discuss later), the litigation guardian put to Mr Kegg:
Mr Rawlinson: But that judgment sum of $650 was in effect damages for [K] the mother wrongfully taking the goods of [M] the father?
Mr Kegg:Yes. Yes, it had nothing to do with [the represented person] as such. … But I was concerned about the consequences had it not been paid.
A number of matters of concern arise in respect of Mr Kegg's enquiry and ultimate decision as to what he said was in the best interests of the represented person.
It appears from his evidence, particularly at [15] of his witness statement (set out above), that due to some apprehension of violence that he formed by reading various documents, it was his view that the represented person's best interests would be served by K being the guardian and, based on that, he agreed to pay all of the costs from the represented person's estate.
Mr Kegg and Perpetual Trustees generally did not at any time undertake any real examination of K's own means. Although a passing comment was made to a large payout allegedly received by K some time earlier, no detailed evidence was put before the Tribunal in respect of that matter, and it appears that it was not considered at all by Mr Kegg.
Furthermore, it appears that once Mr Kegg made the decision referred to at [15] of his witness statement that payments for K were in the best interests of the represented person and which he relied on to justify payment of S lawyers' first request for payment, Mr Kegg made no subsequent enquiry regarding the following 11 or more requests for payment. Mr Kegg relied on the decision reached on the first occasion and thought no more about the issue of payment of K's costs from the represented person's estate.
At [8] of his witness statement, Mr Kegg stated that the client's relations manager in Perpetual Trustees, Mr Anton Murphy, although having the daytoday contact with K, had no authority to make decisions regarding the application of funds.
However, it is worth noting that at [24] of his witness statement, when discussing the second request for payment of $10,992 received from S lawyers by letter dated 9 November 2006, Mr Kegg stated:
24.By letter dated 15 November 2006, Mr Anton Murphy of Perpetual Trustees wrote to [EM] 'Re [the represented person]' stating that 'In a nutshell we have no objections for [the represented person's] trust meeting the cost of travel, accommodation and legal fees, as detailed, on the understanding that the resolution of the current matters are in the long term best interests of [the represented person]'.
To put the requests for payment and the decision made by Mr Kegg in context, we refer to EM's evidence, in particular her witness statement, where EM details the circumstances, from her perspective, of the requests for payment of various accounts. EM states at [9] [20] of her statement:
9.When I first took instructions from [K] and from speaking with [BN], it was explained to me that:
(a)There had been medical negligence at [the represented person's] birth and legal proceeding had resulted in a large payout for [the represented person's] past, present and future needs.
(b)[The represented person's] mental capacity was limited. From memory some reports put him at pre-school age and others at lower primary level. My personal observations of [the represented person] indicated limited physical and intellectual capacity.
(c)[K] has been [the represented person's] carer all his life. In [the represented person's] early teens [K] and her other children moved to Western Australia and lived in Perth for a time. [K] and [M] had divorced but in mid 2005 attempted a reconciliation which had not been successful. The reconciliation had involved [K] moving to the Eastern States where she had lived during [the represented person's] pre-teen years. In mid-2006 [K] returned from New South Wales to Western Australia and moved to [a WA regional town] where her sister and niece's families lived.
(d)[The represented person] has 4 siblings. At some point Luke who is slightly younger than [the represented person] moved back to the Eastern States. The remaining 3 siblings all younger than [the represented person] live full time with [K] and appeared to provide a supportive framework for [the represented person]. [K] also has a sister who is strongly supportive and a niece with children of a similar age to [K's] younger children, living in [the town].
(e)At the time I became involved there seemed to be a consensus between the Public Advocate and the other parties that a guardian needed to be appointed.
(f)[K] wished to be appointed as [the represented person's] guardian because she had been [the represented person's] primary carer all his life, she had custody of [the represented person] and [the represented person's] siblings, she was physically fit, she related very strongly to [the represented person's] needs and she was the most experienced person to do the job.
10.In my opinion, [K] had [the represented person's] best interests at heart, she has a very close bond with [the represented person] and spent a lot of time with [the represented person]. [The represented person] has been and is her close companion. [K] did not overly criticise [M] or his mother. Everyone had played a part in his upbringing however [K] was a constant in [the represented person's] life. [K] appeared to be a very constant person in her relationships. Even the reconciliation attempted in 2005 which was much criticised by the Public Advocate was a reflection of her commitment to the father of her 5 children. I saw a person with a very strong commitment to do her best by all her family including [the represented person].
11.Although [K] was instructing [S lawyers] and me personally, it was not possible for me to have any meaningful conversation with [the represented person] given his intellectual disabilities.
12.I found that I could ask [the represented person] a question and he would smile, but not give you an answer. If another person laughed, he would also laugh, or if another person frowned he would also frown.
13.I concluded that it was not possible for me to have any meaningful conversation with [the represented person] and there was no way he could possibly have provided me with any meaningful instructions by himself.
14.My initial meetings with [K] and [the represented person] led me to believe that [the represented person] would not have been able to understand questions such as 'where do you want to live?' or 'with whom do you want to live?'.
15.At all times, I considered [the represented person's] interests to be of paramount importance.
16.I arrived at the view that, given the circumstances explained to me by [K], particularly her having been [the represented person's] primary carer all his life and [the represented person] living with [K] and his siblings, that it was in [the represented person's] interest that [K] be appointed as his guardian. I still believe that today.
17.I believed that [S lawyers] was acting for [K] and, through her, [the represented person].
18.[S lawyers] arranged for [K] to enter into a client service agreement with us regarding guardianship matters. [BN] wrote to [K] [sic] on 21 September 2006 about the issue of costs and enclosed with that letter a client service agreement.
19.[The represented person] did not have capacity to sign such a document, and [K] was therefore referred to as the client in the agreement. However, it was signed by [K] 'for and on behalf of: [the represented person]' on 16 October 2006.
20.The client service agreement with [K] refers to representation of her and [the represented person] in relation to guardianship hearings relating to [the represented person].
21.[BN] took initial instructions and created a file. On 28 July 2006 [BN] first reviewed the file content as it then existed with a view to representing [K] and [the represented person] at the first hearing in the State Administrative Tribunal on 1 August 2006.
22.Subsequent to [BN] taking instructions from [K], [BN] helped prepare an application for guardianship for [K] to be appointed guardian for [the represented person].
23.There were also separate applications filed by [M], [the represented person's] father, and later by [G], [the represented person's] paternal grandmother.
24.There were a number of different hearings in relation to both guardianship and administration matters. I recall that there were essentially 3 initial applications being dealt with:
(a)An application brought by the Public Trustee in relation to review of the fees charged by Perpetual Trustees.
(b)The application by [K] for her appointment as guardian.
(c)An application by [M], [the represented person's] father, for his appointment as guardian.
Further, at [72] and [79] of her witness statement EM says:
72.My role in the SAT proceedings was to advise [K] in assisting her retaining guardianship of [the represented person] which I also believed to be in [the represented person's] best interests.
79.When [K] first came for legal advice she was concerned about the prospect of losing [the represented person]. I reviewed all of the evidence and in my view she was the best person to care for [the represented person]. I didn't perceive there was a conflict in acting for [K] and, through her, [the represented person]. …
In its statement of contentions, filed with the Tribunal, Perpetual Trustees submits that the answer to the question posed in Issue 1 is, 'Yes', because:
Perpetual made the payments in accordance with the opinion they had formed in their capacity as plenary administrator as to what was in the best interests of [the represented person], given the relative size of the estate. As far as possible, Perpetual sought to ensure that [the represented person] was able to [be] free from any jeopardising influence:
(i)maintain the primary supportive relationship in [the represented person's] life, being the relationship with his mother [K], his primary full-time carer, thereby maximising the level of care and support he enjoyed.
(ii)live in an environment that was familiar to him and in his general community free of any distraction in the form of legal proceedings or otherwise and with the maximum level of support and attention from his mother.
The payments provided a justifiable benefit for [the represented person] In spite of the Public Trustee's decision, no 'loss' has been suffered by [the represented person's] estate.
Conversely, if the payments have not been made, this would have resulted in a catastrophic level of disruption to the level of care that [the represented person] would have received and would have exposed his mother, primary carer, to financial disaster.
Perpetual, acting with both the immediate and longterm best interests of [the represented person] in mind, had no alternative but to make the payments disputed.
Further, Perpetual, in its capacity as plenary administrator, had the authority to make the payments of legal fees which were disallowed by the Public Trustee.
The payments were made in good faith, having formed the opinion that it was in the interests of the represented person to pay for the legal representation in question out of the estate.
The opinion was reasonable and in accordance with the duty of the administrator to act 'according to his opinion of the best interests of the represented person' (s 70(1) GA Act).
Perpetual Trustees submits that the decision to issue the certificate of loss should be set aside and the Tribunal should substitute its own decision, allowing the payments from the represented person's estate.
From the evidence we heard and the submissions made, it is clear that Mr Kegg made a decision when the first request for payment of legal fees was made. He says he made that decision to pay K and the represented person's legal fees in good faith, based on an apprehension that he formed from reading documents, that there was a history of violence in the family. As K was (and remains) the represented person's primary carer, Mr Kegg thought it appropriate to pay the legal fees so as to keep the represented person's supportive family environment intact. Mr Kegg made no further enquiry at any time, including when the first decision to pay was made and when all subsequent payments were made from the represented person's estate.

Consideration of Issue 1

The three separate amounts totalling $29,353.88, comprising the certificate of loss, all related to proceedings in this Tribunal in respect of matters GAA 1117 of 2006, GAA 1448 of 2006 and GAA 1449 of 2006.
All three matters related in some way to the affairs of the represented person: GAA 1117 of 2006 was an application by the Public Trustee for review of Perpetual Trustees' fees; GAA 1448 of 2006 was K's application to become guardian of the represented person; and GAA 1449 of 2006 was M's application to become guardian of the represented person.
Section 3 of the GA Act defines a 'party' as being:
party in relation to an application under this Act means the applicant, the represented person or person in respect of whom an application is made, a person to whom notice of an application is required by this Act to be given, or to whom such notice is given, and any person who is heard by the State Administrative Tribunal under clause 13(2)(a) of Part B of Schedule 1.
By virtue of that definition, the represented person was therefore a party to each of those proceedings. He was not, however, as is made clear by the findings of her Honour, Jenkins J in G v K [2007] WASC 319, (G v K) a 'represented party' in any of those proceedings. G v K related to the appeal brought by G, seeking review of the Tribunal's decision to appoint K and the Public Advocate limited guardians for the represented person.
Although S lawyers, when writing to Perpetual Trustees requesting payment of their fees, described themselves as acting 'on behalf of [K] and through her [the represented person]', it is clear from Justice Jenkins' findings that although S lawyers described that as being the position, they were in fact acting for K alone and were not representing the independent interests of the represented person.
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.
Mr Kegg in his evidence referred on more than one occasion to Perpetual Trustees' Policy and Procedure document, a copy of which was before the Tribunal and put into evidence.
Although that document refers to the issues raised by Mr Kegg, it specifically states on the first page:
In all of these circumstances Perpetual is in the position of a fiduciary under a trust or quasi trust relationship and must satisfy its obligations under the relevant legislation. This requires special attention to the technical issues associated with the management of such accounts.
Although, as stated earlier, 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, there is one specific qualification to that, which is contained in s 72(3), which states:
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; or
(b)make a payment in respect of a debt or demand that the represented person is not obliged by law to pay.
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. Furthermore, s 18 of the Interpretation Act 1984 (WA) (Interpretation Act) directs the Tribunal to consider 'a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote the purpose or object.
We have borne these principles in mind when considering the relevant sections of the GA Act and how they apply to the issues we must decide.
The overall intention of the GA Act was outlined by his Honour, Justice Heenan in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268, (Full Board decision) as being the protection of the estate for the benefit of the represented person during the lifetime of that person. At [44] he states:
… 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 Act can be seen to have meaning and effect as leading 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 that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration.
Seen in that light, s 72(3) of the GA Act makes perfect sense. Its purpose is, as part of the Scheme of the GA Act, to preserve the represented person's estate, so as to ensure he has adequate means to maintain himself for his lifetime. The GA Act in general, and s 72(3) in particular, are to ensure that the represented person's estate is not 'dissipated' but 'conserved'. Although the GA Act gives a plenary administrator broad powers to act, an administrator must do so, subject to the GA Act and its general primary objective to 'conserve' the represented person's estate, to apply it to the 'needs, welfare and enjoyment' of the represented person, and not to 'dissipate' the estate. In this way, with this restriction on what are otherwise broad powers, an administrator fulfils its duty under the GA Act to ensure, as best as the administrator possibly can, and within the context of the value of the represented person's estate, that the represented person has adequate means for their lifetime.

None of the legal fees, the subject of Issue 2, could be characterised as a 'debt or demand' that the represented person was obliged to pay (see s 72(3)(b) GA Act). Therefore, the simple answer to all of the subissues (a) (d), is that in accordance with our reasoning and findings in Issue 1, and as the legal obligation to pay the legal fees resided in K, and not the represented person, Perpetual Trustees was required to seek and obtain the Tribunal's authorisation for the payment, prior to making any payment of the legal fees. It is now too late to seek that authorisation because the payments have been made and we cannot retrospectively authorise the payment of K's legal fees.
In respect of items 14 through to 20, an examination of the documents, and the evidence put before the Tribunal, shows that all of these payments related to proceedings in New South Wales in respect of which K was a party and in respect of which the represented person was not a party and did not appear to be in any way affected by; although clearly Mr Kegg believed that in his view it was in the represented person's best interests that those amounts be paid.
The Tribunal is satisfied that all of the amounts listed above and raised in respect of Issue 2 were paid on behalf of K solely.
Having made that finding, the following questions are put:

Can the Tribunal direct the administrator to pay the legal fees under s 74 of the GA Act?

Section 74(1) of the GA Act provides:
Any administrator may apply to the State Administrative Tribunal for directions concerning any property forming part of the estate of the represented person, or the management or administration of such property, or the performance of any function, and the Tribunal may on any such application give to the administrator any direction not inconsistent with this Act (our emphasis).
Although s 74 of the GA Act gives the Tribunal a broad power to give directions to an administrator, on the application of the administrator, to assist the administrator to exercise its functions, the Tribunal exercises this power sparingly. The Tribunal has consistently taken the view, particularly with respect to applications under s 74 by plenary administrators, that it should only rarely and with good reason, make directions that relate to the actual management or administration of a represented person's estate, because the GA Act vests all the powers and functions of the represented person in the administrator. The role of the Tribunal is to appoint the administrator where appropriate and to specify if that appointment is plenary or limited in some way. The Public Trustee oversees the conduct of the administrator through the filing of annual accounts and other mechanisms set out in the GA Act. The Tribunal oversees the Public Trustee through provisions such as s 80(6a) of the GA Act. The scheme of the GA Act is to enable administrators to conduct the financial affairs of the represented person with the flexibility and autonomy of a natural person but subject to fiduciary obligations, accountability requirements and various necessary statutory restrictions. The Tribunal should not involve itself in the daytoday administration of a represented person's estate. If any interference of that nature is required, then it falls on the Public Trustee to oversee it. Although s 74 enables an administrator to seek directions from the Tribunal, we would generally not give a direction related to the daytoday management and administration of a represented person's estate. It would be somewhat inconsistent with the scheme and statutory objectives of the GA Act which, although it is protective legislation, must operate within the realities of the needs and abilities of inexperienced private administrators, as well as large professional administrators such as Perpetual Trustees.
The Tribunal does not perceive its role under s 74 as effectively usurping the decisionmaking of an administrator with respect to a difficult or contentious payment. An administrator such as Perpetual Trustees, is well equipped to make appropriate decisions on all matters relating to the administration of a represented person's estate. It cannot come to the Tribunal under s 74 to obtain an advisory legal opinion as to its functions or to shift responsibility for the making of an important decision or to absolve it from an unauthorised act with respect to an estate.
In any event, if we were inclined to give a direction under s 74 of the GA Act, we would not be able to validly direct the administrator, Perpetual Trustees, to pay the legal fees as to do so would be 'inconsistent with this Act'. We have found that the payment of the legal fees had to be authorised by the Tribunal prior to payment. A direction under s 74 could not cure that defect and any attempt to do so is specifically barred by s 74 where it provides that a direction must not be inconsistent with the GA Act.

Can the Tribunal authorise payment of the legal fees under s 72(3) of the GA Act as an ex gratia payment

When considering Issue 1, we made a finding that a payment by an administrator under s 72(3)(b) must be authorised by the Tribunal before any payment can validly be made. This principle applies equally to s 72(3)(a) of the GA Act. We therefore do not need to consider whether the payment of the legal fees is a 'payment or disposition of a charitable, benevolent or ex gratia nature'. Whatever character is attributed to the legal fees, payment of them required prior authorisation of the Tribunal to be valid. It is now too late to consider approving payment as we cannot give retrospective authorisation.
However, although we have not given it close consideration, we have some doubt that the payment of K's legal fees could be clearly classified as an ex gratia payment for the purposes of the GA Act

Can the Tribunal authorise the payment of the legal fees under s 16(4) of the GA Act?

The short answer to this question is no. The costs regime set out under s 16 of the GA Act allows the Tribunal, if it is satisfied that the person seeking a costs order is a party to proceedings commenced under the GA Act and that party has acted in the best interests of the represented person, to order that costs relative to those proceedings be paid out of the assets of the represented person.
However, the time for making such an application is when the matter was originally before the Tribunal; in addition, an application could have been made when the matter was on appeal before the Supreme Court. It appears no application was made on either occasion. The costs referred to are not costs which the represented person was obliged by law to pay and, therefore, fall squarely within s 72(3) unless s 16 applies. A prospective application under s 72(3) could have been made at the appropriate time. In the present circumstances, however, the amounts have already been paid and the proceedings under which they arose are finalised and they cannot now be authorised retrospectively.

Can the Tribunal otherwise authorise the payment of the legal fees?

Again, the short answer is no. The only other provision dealing with legal costs is under s 87 of the State Administrative Tribunal Act 2004 (WA), and applications under that section are also to be made and dealt with as part of the proceedings at the time of the proceedings in question. That time is now well gone.

Issue 3: If the Tribunal finds that it can direct or authorise payments of all or any of the legal fees under s 2(a), s 2(c) or s 2(d), should it direct or authorise the payment of all or any of the legal fees?

Having found, for the reasons outlined, that we cannot direct or authorise the payments of all or any of the legal fees in question, we make no further comment in respect of this issue.

Issue 4: Can the Tribunal direct or authorise the payment by the administrator of future legal fees from the represented person's estate for a party other than the represented party to legal proceeding?

Along with Issue 5, this issue poses a hypothetical question essentially asked by the Public Trustee. The Tribunal does not give advisory opinions as to how it might exercise its discretion in the future. The provision of an opinion by the Tribunal in a factual vacuum is redolent with danger. It would be entirely inappropriate for us to give an answer to the question asked. It would purport to fetter the Tribunal in the future exercise of its discretion and we therefore make no further comment in respect of Issues 4 and 5, other than to reiterate that the Tribunal is very cautious when asked to give directions to an administrator who has all the functions and powers of a represented person.

Issue 5: If so, under what provisions of the Act can the Tribunal so direct or authorise and should the Tribunal do so?

Our comments with respect to Issue 4 apply equally to this issue and we make no further comment.

Litigation guardian

The above five issues deal with the matters raised by Perpetual Trustees, the Public Trustee and G in these proceedings. However, as outlined at the beginning of these reasons, the litigation guardian, by letter of 16 October 2008, raised a further three issues and requested the Tribunal to review the following matters under s 80(6a) of the GA Act (the third proceedings). They are:
Issue 6: The decision of the Public Trustee to allow the six asterisked payments in the summary of legal payments, namely:
2)payment of $845 to LRB on 7 December 2006;
4)payment of $450 to S lawyers, dated 1 February 2007;
6)payment of $5,665 to Steven Jones, counsel, dated 7 March 2007;
11)payment of $817.30 to S lawyers, dated 21 February 2007;
12)payment of $865.75 to S lawyers, dated 21 February 2007; and
13)payment of $2,195.60 to BC legal, dated 21 February 2007.
Issue 7: The decision of the Public Trustee to allow the sum of $1,800 paid to K for dental expenses.
Issue 8: The decision of the Public Trustee not to determine that an interest loss has occurred to the represented person's estate in relation to the amount wrongfully paid by Perpetual Trustees out of the represented person's estate.

Issue 6: The decision of the Public Trustee to allow the six asterisked payments in the summary of legal payments, namely:

2)payment of $845 to LRB on 7 December 2006;
4)payment of $450 to S lawyers, dated 1 February 2007;
6)payment of $5,665 to Steven Jones, counsel, dated 7 March 2007;
11)payment of $817.30 to S lawyers, dated 21 February 2007;
12)payment of $865.75 to S lawyers, dated 21 February 2007; and
13)payment of $2,195.60 to BC legal, dated 21 February 2007.

The principal difference between items 2, 4 and 6 on the summary of legal payments, and items 1, 3 and 5, is that the Public Trustee issued a certificate of loss in respect of the amounts in items 1, 3 and 5 but did not do so for items 2, 4 and 6.
We had a witness statement from Mr Gary Robertson, and we heard oral evidence and crossexamination from him. Mr Robertson is the manager of the Public Trustee's Private Administrator Support Team (PAS). It is his duty to perform the functions identified under s 80 of the GA Act, including examining accounts, allowing accounts and issuing certificates of loss. At [10] of his witness statement, Mr Robertson stated in respect of the third proceedings:
I understand that Perpetual Trustees made other legal payments during the period 17 March 2006 to 16 March 2007 that were not disallowed in the Certificate of Loss. Perpetual Trustees had provided copies of those accounts with its letter of 7 June 2007. It was an oversight not to further explore whether these should form part of the certificate of loss. The payments were:
-the consultancy fees of [LRB] of $845.00;
-[S lawyers'] accounts of $817.30 and $865.75 (a total of $1,683.05) paid on 21 February 2007;
-[BC legal's] account of $2,195.60 paid on 21 February 2007; and
-the counsel fees of Steven Jones of $5,665.00 paid on 7 March 2007.
Although I knew that some payments were made for Tribunal matters and some were made for other matters, I do not recall ever teasing out how these matters would be treated differently.
The Certificate of Loss also does not include [DW's] travelling expenses of $450 on 21 February 2007. That expense was not included in Perpetual Trustee's letter of 7 June 2007, although it was mentioned in the account that Perpetual submitted to the Public Trustee.
That evidence was a candid admission by Mr Robertson that the amounts not covered by the certificate of loss, and the three further sums concerning matters in New South Wales, namely, Nos 11, 12 and 13, both the subject of the third proceedings, were sums in respect of which little or no consideration was given as to their proper characterisation and whether they were sums correctly raised and claimed.
We have heard or received no evidence as to why these sums should be treated any differently to the other amounts in the summary of legal payments. We are unable to find any evidence indicating that they were amounts in respect of which the represented person was obliged by law to pay.
We therefore find that these amounts are sums for which authority pursuant to s 72(3) should have been obtained. That authorisation was not obtained and, therefore, may not now be authorised retrospectively. As with the other amounts, it will be up to the Public Trustee pursuant to s 80(4) of the GA Act as to whether or not it relieves the administrator of liability. It is not a decision for this Tribunal.

Issue 7: The decision of the Public Trustee to allow the sum of $1,800 paid to K for dental expenses

In relation to this item, also, the litigation guardian submitted that there was no proper basis for distinguishing between K's legal expenses and K's dental expenses and accordingly, there was no proper basis for allowing K's dental expenses.
Perpetual Trustees, on the other hand, in its submissions explained that it made the payments in accordance with the opinion they had formed in their capacity as plenary administrator as to what was in the best interests of the represented person.
In a memo dated 21 May 2007 to Mr Neil Stanton, an officer within the Public Trustee (PAS) team, and headed 'Just a couple of small points', Gary Robertson, at item (iii), stated:
The entry on the 9/10/2006 reads; 'Busselton Dental Clinic payment for dental treatment for [K] and [the represented person] $1,800'. Please ask Perpetual's to supply a copy of the dental invoice.
In a memo dated 27 June 2007, Mr Stanton sent a return memo to Mr Robertson, and in relation to item (iii) stated:
I recommend accepting the dental work for the mother [K] because:-
(a)[the represented person] signed a request for the payment in his note dated 25/08/06.
(b)It is not a material amount when you consider that [the represented person] received a payout in excess of $7 million.
(c)Payment was made by Perpetual and not by [K] and Perpetual received no personal benefit for the payment.
(d)It is highly unlikely that SAT would disapprove of such immaterial expenditure.
(e)[K] receives only $2,000 [per month] in carer's fees. Perpetual would be well within their rights to increase this amount.
In a further file note the following day, dated 28 June 2007, Gary Robertson stated:
I have discussed Perpetual Trustee's reply with Sean [Conlon] and he has decided:
1.Dental expenses of mother paid from [the represented person's] personal estate. Sean agrees with your recommendation however, PT will include in the Pass letter a gifting clause with reference to the dental expenses …
It would appear from this exchange that the Public Trustee clearly turned its mind to the issue of K's dental expenses, and although the Tribunal has some sympathy with the arguments outlined, it is clear, as with all of the other amounts being dealt with in this matter, that the $1,800 for K's dental expenses were an amount which the represented person was not legally obliged to pay.
The Tribunal agrees that, if requested, it would likely have consented to an ex gratia payment of that amount, particularly in light of all the circumstances. An application could have been made to the Tribunal.
So, strictly speaking, an application under s 72(3) should have been made and was not made and the payment cannot now be authorised.
As for the statement that Perpetual Trustees would be well within their rights to increase K's carer's fees, the Tribunal finds that in light of its findings in this matter, this may well be something that Perpetual Trustees will need to examine.

Issue 8: The decision of the Public Trustee not to determine that an interest loss has occurred to the represented person's estate in relation to the monies wrongfully paid by Perpetual Trustees out of the represented person's estate

In respect of this item, the litigation guardian submitted that in the event that the Tribunal finds monies must be refunded by Perpetual Trustees to the represented person's estate, then the represented person's estate has suffered a loss of the interest which would otherwise have been earned on those monies from the date of payment out of the represented person's estate to the date of refund to the represented person's estate.
As with any claim for interest, before a decision can be made, the loss itself must crystallise, and although the Tribunal has found in respect of all of the sums in issue, that they are amounts in respect of which applications pursuant to s 72(3) of the GA Act should have been made and were not made, and cannot now be authorised retrospectively, there is still a residual power in the Public Trustee, pursuant to s 80(4) of the GA Act as referred to above. The administrator will be liable to the estate for all loss or diminution, except to the extent that the Public Trustee relieves him of that liability. In the circumstances, that decision, including any decision in respect of interest and whether a loss has occurred and in what amount, is a decision the Public Trustee must make. It is therefore not a decision for the Tribunal and it would be an advisory opinion.

Conclusion

Having made the findings in respect of Issues 1 to 8, as outlined above, the Tribunal makes the following orders.

Orders

1.The application to set aside the certificate of loss, dated 4 December 2007, in the sum of $29,352.88 is dismissed and the respondent's decision to issue the certificate of loss is affirmed.
2.No direction is made in respect of any of the other payments considered as part of these proceedings.

I certify that this and the preceding [137] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT