PUBLIC TRUSTEE
[2022] WASAT 63
•28 FEBRUARY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PUBLIC TRUSTEE [2022] WASAT 63
MEMBER: MR J MANSVELD, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 28 FEBRUARY 2022
PUBLISHED : 27 JULY 2022
FILE NO/S: GAA 1460 of 2017
PUBLIC TRUSTEE
Applicant
AN
DI
Interested Party
Catchwords:
Guardianship and administration - Access to documents - Access to accounts filed by administrator - Represented person deceased - Executor seeking access to accounts - Role of Public Trustee - Tribunal discretion to allow access - Cogent reasons required - Each request for access determined on particular circumstances of the case
Legislation:
Freedom of Information Act 1992 (WA)
Guardianship and Administration Act 1990 (WA) (reprinted as at 22 November 2002), s 3, s 80, s 80(1), s 80(3), s 112, s 112(1), s 112(4)
Guardianship and Administration Act 1990 (WA), s 80, s 80(3), s 80(6a), s 112
Guardianship and Administration Regulations 2005 (WA), reg 4(1), reg 4(2)
Public Trustee Act 1941 (WA), s 47(2)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Interested Party | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Interested Party | : | N/A |
Case(s) referred to in decision(s):
AB and Public Trustee [2015] WASAT 68
CD [2020] WASAT 41
DI and DN [2013] WASAT 4
LFG and Public Trustee [2015] WASAT 71
Miller v Taylor [2018] WASC 75
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
DN is deceased. She died on 18 September 2021.
Prior to her death DN was subject to orders made under the Guardianship and Administration Act 1990 (WA) (GA Act).
The relevant history of those orders are as follows:
1)On 1 August 2012 DI, the daughter and JM, the granddaughter) were appointed joint limited guardians of DN. An enduring power of guardianship made by DN on 13 December 2010 appointing her son AN was revoked.
2)On 14 December 2012 DI was appointed plenary administrator of DN's estate. An enduring power of attorney made by DN on 16 June 2009 appointing AN was revoked.
3)On 21 July 2017 upon periodic review of the guardianship and administration orders, the orders made on 1 August 2012 and 14 December 2012 were confirmed for five years.
The reasons for the administration order made on 14 December 2012 were published in my decision in DI and DN [2013] WASAT 4 (DI and DN).
The current application
In February 2022, the Public Trustee made an application under s 112(4) of the GA Act seeking authorisation to provide a copy of the accounts filed by the administrator to the executor of DN's estate. The executor is AN.
On 28 February 2022 the Tribunal made an order granting the application.
What follows are the reasons for that decision.
Legislative framework
Prior to the establishment of the Tribunal, the Guardianship and Administration Board (Board) had the jurisdiction of the Guardianship and Administration Act 1990 (WA) [reprinted as at 22 November 2002] (former GA Act) including, relevantly, the appointment of guardians and administrators. For the purposes of the current matter before the Tribunal the Board was also given functions under s 80 and s 112 of the former GA Act.
Under s 80(1) of the former GA Act, an appointed administrator was required to submit accounts to the Board unless exempted from doing so. The role of the Board was to examine those accounts and determine whether to allow them, disallow any amount paid and determine that any amount or asset had been omitted, or that any loss had occurred (s 80(3) of the former GA Act.)
Under s 112(1) of the former GA Act a represented person (a person under guardianship and/or administration orders), a person in respect of whom an application was made under the former GA Act or their legal representative in any proceedings, were entitled, unless the Board otherwise ordered, to inspect or otherwise have access to:
a)any documents or material lodged with or held by the Board for the purposes of any application in respect of that person;
b)any accounts submitted under s 80 by the administrator of the estate of that person.
Under s 3 of the former GA Act, an application relevantly meant an application to the Board under the former GA Act.
Under the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (SAT Conferral Act), the Tribunal took over most of the functions of the Board.
Relevantly s 80 was amended to replace the Board with the Public Trustee such that administrators would submit accounts to the Public Trustee as required or prescribed by regulations.
It became the role of the Public Trustee to examine the accounts as formerly done by the Board under s 80(3) of the former GA Act.
Section 112(1) of the former GA Act was relevantly amended to insert after 'proceedings', 'commenced under this Act'.
Section 112(1)(b) referring to accounts submitted under s 80 was not repealed notwithstanding that the Public Trustee would now receive accounts from appointed administrators rather the Tribunal and as the Board had done previously.
Section 112(4) of former GA Act stated that on the application of any person or on the Board's own motion, the Board by order could authorise any person, whether conditionally or unconditionally, to inspect or otherwise have access to:
a)any document or material lodged with or held by the Board for the purposes of any application; and
b)make any other order contemplated by s 112.
By way of the SAT Conferral Act, s 112(4) was amended to replace the Board with the Tribunal and deleting the reference to the Board's ability to make an order under s 112(4) on its own motion.
The GA Act [reprinted as at 1 July 2022] will be referred to as the GA Act for the purposes of these reasons.
The GA Act has regulations that refer to estate management (Guardianship and Administration Regulations 2005 (WA) (Regulations)).
Relevantly, for current purposes, an administrator, unless the Public Trustee otherwise allows, must within a specified time, lodge accounts in a form approved by the Public Trustee (reg 4(1) of the Regulations).
Under reg 4(2), an administrator must retain documents relating to the financial transactions of the estate and submit them to the Public Trustee if so required.
The submissions of the applicant
The applicant's submissions are as follows:
Read together s 112(1) and s 112(4)(b) of the GA Act give the Tribunal power to allow or refuse access to accounts submitted under s 80 to a represented person.
AN, as executor of the estate of DN, has the same rights of access under s 112(1) as DN would have had in her own right.
Alternatively s 112(4)(a) enables the Tribunal to allow any person to have access as contemplated under s 112.
The decisions of the Tribunal by the then President, Justice Curthoys, in AB and Public Trustee [2015] WASAT 68 (AB) and LFG and Public Trustee [2015] WASAT 71 (LFG) should not be relied upon or should be distinguished.
In particular, where in AB at [20] it was held that as s 112(1) does not apply once the person is deceased and that access can only be decided under s 112(4) of the GA Act, it is submitted that there is nothing in s 112(1) that states that the powers of the Tribunal to decide access cease upon the death of the person.
In LFG, it was held (as in AB) that very cogent reasons must be present to allow access. The convenience of the executor or cost savings were not considered cogent reasons and the application to allow access to the accounts filed under s 80 of the GA Act in that instance was refused. His Honour directed the parties to the probate jurisdiction of the Supreme Court to assist an executor in gathering the assets of an estate even if it is more costly than seeking access through the GA Act ((AB at [30] and (LFG at [32])).
The applicant refers to a later decision by His Honour, Miller v Taylor [2018] WASC 75, in which criticism is said to have been levelled at amongst others, executors who do not take reasonable steps to minimise the costs to a deceased estate.
Further to reg 4(1) of the Regulations, the Public Trustee specifies the form in which administrators must file accounts. Regulation 4(2) refers to documents that inform the accounts which the Public Trustee might require to be filed. The applicant questions whether these supporting documents are to be included in what constitutes accounts subject to access under s 112(1)(b) of the GA Act.
The applicant submits that the Public Trustee does not have the power to release the records under s 47(2) of the Public Trustee Act 1941 (WA) as that section deals with records held by the Public Trustee in the course of dealing with an estate which is not its particular function under s 80 of the GA Act.
The applicant questions whether the accounts remain the property of the Tribunal despite being held by the Public Trustee and submits that the Public Trustee may not be able to release the accounts under the Freedom of Information Act 1992 (WA).
Section 112 of the GA Act
The operation of s 112 of the GA Act is usefully summarised in CD [2020] WASAT 41 at [32] to [45].
Relevantly for the present purposes the following can be taken from Her Honour's reasons.
1)The jurisdiction of the Tribunal under the GA Act is one in which very sensitive, personal information is received.
2)The importance of confidentiality of proceedings is reflected not only in s 112 and s 113 of the GA Act but more generally in its other provisions.
3)Confidentiality of information in the GA Act jurisdiction reinforces two important policies. The first is the protection of privacy of the persons involved in proceedings before the Tribunal, in particular the represented person or a person in respect of whom an application has been made under the GA Act. Second is the public interest in the Tribunal's processes which relies on the ability to obtain sensitive information from a variety of sources.
4)In respect to access to documents, s 112 of the GA Act creates a distinction between three classes of persons: first is the represented person or the person for whom an application has been made which is addressed under s 112(1); secondly, any other party to the proceedings is addressed by s 112(2); and thirdly, any other persons who may apply for access under s 112(4).
5)The entitlement to inspection under s 112(1) of the GA Act applies only for the purposes related to proceedings before the Tribunal.
6)The entitlement under s 112(2) reflects the need to accord procedural fairness to the parties to the proceedings. Once the proceedings have concluded, a party to those proceedings no longer has an entitlement to access documents under s 112(2).
7)The entitlements under s 112(1) and s 112(2) of the GA Act are conditional on the Tribunal making a contrary order.
8)Applicants under s 112(4) have no anticipatory entitlements to access.
9)The Tribunal has a broad discretion under s 112(4) of the GA Act. That power is not limited in its terms and in an appropriate case may include inspection or access to documents for purposes other than proceedings before the Tribunal (CD at [42]).
10)An applicant who seeks access under s 112(4) of the GA Act must provide very cogent reasons and demonstrate a particular need for access.
11)It is not sufficient for the applicant to have a general desire to be informed. Convenience or cost savings alone are not sufficient to satisfy the test of cogent reasons.
12)The Tribunal should act cautiously in deciding whether to grant access under s 112(4). It is for the Tribunal in every case to decide if there are very good reasons to permit inspection or access having regard to the facts and circumstances of the application before it (CD at [44]).
Disposition
Prior to the establishment of the Tribunal, administrators were required to submit accounts to the Board which had the further task of the examination of those accounts. The accounts were in the physical possession of the Board.
Section 112(1) of the GA Act was understandably divided between documents arising out of applications and accounts which arise after an application has been determined. The timing of the filing of documents meant that they needed to be treated separately for the purposes of access.
When the Tribunal took over the functions of the Board, the GA Act was amended to give the Public Trustee the role of collecting accounts from administrators and their examination. The Tribunal's role was limited, upon application by an administrator, to a review of a decision by the Public Trustee to allow the accounts, disallow any amount paid or determine that any amount or asset had been omitted, or that any loss occurred (s 80(3) and s 80(6a) of the GA Act).
Despite the Public Trustee taking over the functions concerning accounts filed by administrators and therefore having possession of those accounts, s 112(1)(b) was not repealed.
It may be interesting to speculate why but that is not the role of the Tribunal. The plain reading of s 112(1)(b) gives the Tribunal the discretion to grant access to the accounts to a represented person, a person in respect of whom an application has been made under the GA Act or his or her legal representative.
Moreover s 112(4) of the GA Act gives a broad discretion to allow access when the proceedings are completed and is not limited in its terms.
The cases cited in these reasons condition that discretion but ultimately each case must be decided according to its particular circumstances.
In the present case it is not necessary for me to depart from the decision in AB which appears to have been accepted in CD. Accordingly, the application should be decided as one made under s 112(4) rather than s 112(1) of the GA Act.
I have decided to allow access in this case for the following reasons.
The role of an executor of a deceased estate is weighty. He or she is the person named in a will to carry out the wishes of a person after he or she dies which includes the collection of the assets of the deceased, the payment of debts and the distribution of the property of the deceased set out in his or her will (Legal Aid Western Australia: Duties of an executor).
The collection of the assets of the deceased by an executor can be a difficult exercise. Using the probate processes of the Supreme Court to crystallize the assets of the deceased is not necessarily a simple exercise.
Accounts filed by administrators in the GA Act jurisdiction are unique documents. They initially come about after the proceedings are completed. They summarise at a point in time the assets and liabilities of the represented person and also summarise over time the transactions that give rise to those assets and liabilities and the changes in the represented person's financial position.
Although the convenience of executors is not of itself sufficient reason to allow access under s 112(4) of the GA Act (AB, cited with approval in CD), there may be particular instances where access is granted.
No doubt in the majority of cases families are as one in their understanding of the deceased's estate and the distribution set out in the will. In those cases access to the accounts filed by the administrator is unnecessary even if sought say as confirmation of information otherwise gathered by executor in his or her role of collecting the deceased's assets.
In some instances though that understanding is not present and there may be a lack of knowledge and disquiet over important transactions made or purportedly made prior to the deceased's death.
In those cases access to accounts filed by administrators may be one way by which those issues can be dealt with by way of documents already in existence (the accounts themselves). It is not so much for the convenience of executors that access might be given, rather the accounts, in providing that unique summary of financial transactions over time, may be the best means by which financial information can be made available.
In the present case the reasons in DI and DN relevantly reveal complexities around a conflict of interest and a fracture in the family of DN leading to the making of an administration order. It seems to me to be in the best interests of the now deceased DN that her family as a whole to have clarity concerning the financial events that took place subsequent to the making of the administration order.
I have decided therefore to authorise the Public Trustee to allow access to the accounts filed by DN's administrator.
The authorisation is general in nature and will allow the Public Trustee to determine the particular accounts to which access is to be given noting reg 4 of the Regulations which has the Public Trustee determine what form the accounts should take.
Orders
The Tribunal orders:
1.Pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) and on the application of the Public Trustee, AN, the executor of the deceased represented person's Will is entitled to inspect or otherwise have access to any accounts submitted under s 80 of the Guardianship and Administration Act 1990 (WA) by the administrator of the estate of the deceased represented person.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, SENIOR MEMBER
27 JULY 2022
0
5
6