| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PUBLIC TRUSTEE and BG [2010] WASAT 195 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : 10 AND 14 DECEMBER 2010 DECISION DELIVERED ORALLY 14 DECEMBER 2010
DELIVERED : 30 AUGUST 2011 FILE NO/S : GAA 3355 of 2010 BETWEEN : PUBLIC TRUSTEE Catchwords: Guardianship and administration - Order to preserve property of represented person - Jurisdiction to make order Legislation: Guardianship and Administration Act 1990 (WA), s 4(2)(a), s 70(2), s 71, s 71(5), s 72, s 72(1), s 72(2), s 113, Sch 2 Pt B
State Administrative Tribunal Act 2004 (WA), s 35, s 90
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Result: Orders made to protect and preserve property Category: A
Representation: Counsel:
Applicant : Mr M Bowyer
Respondent : Unrepresented
Solicitors:
Applicant : Self-represented
Respondent : N/A
Case(s) referred to in decision(s):
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The Tribunal appointed the Public Trustee in the place of administrators previously appointed in respect of the estate of the represented person. After undertaking some initial enquiries, it appeared to the Public Trustee that the previous administrators had improperly expended funds belonging to the represented person on various motor vehicles which had subsequently been damaged or given into the possession of third parties. The Public Trustee then sought orders to assist him in locating and preserving the property of the represented person. 2 The Tribunal considered what jurisdiction it had to make the orders sought. It concluded that the power to make the orders sought by the Public Trustee existed under s 72(1) and Sch 2 Pt B of the Guardianship and Administration Act 1990 (WA).
Introduction 3 On 3 June 2010, the Tribunal made an order appointing joint plenary administrators of the estate of BG. The order was to be reviewed by 3 June 2012. 4 The information before the Tribunal suggested that BG suffered from a lifelong mental illness being chronic paranoid schizophrenia. He was resident in a remote community in the north of Western Australia. BG had inherited a substantial fund from his late father's estate, and it was the need to manage those funds which provided the impetus for the application for the appointment of an administrator. On 28 July 2010, the joint administrators received $198,641.25 as administrators of BG's estate, and that sum was paid into a bank investment account. 5 In November 2010, an application to the Tribunal was made by BG's grandmother for the removal of the joint administrators, and for the appointment of BG's grandfather as administrator in their place. The reason for the application was expressed to be that the joint administrators had been misusing BG's inheritance. The application asserted that the administrators had purchased five vehicles for family members and also white goods and electrical equipment for the home of one of the joint administrators. 6 At the same time, the Public Trustee lodged an application, being the application presently before the Tribunal, seeking a review of the appointment of the joint administrators. That application was based upon (Page 4)
a failure by the joint administrators to respond to certain communications from the Public Trustee, and the Public Trustee's concern as to the treatment of the funds due to BG from his late father's estate. 7 The applications by the grandmother and the Public Trustee were brought on quickly, and on 2 December 2010 the Tribunal made an order revoking the previous administration order and substituting the Public Trustee as plenary administrator of the estate. A direction was given in the order appointing the Public Trustee for it to investigate, as a matter of urgency, the allegation that the former administrators had misused the represented person's funds and, if necessary, to take action to recover those funds. 8 In accordance with the direction of the Tribunal, the Public Trustee carried out urgent investigations as to the application of the inheritance funds. On 10 December 2010, Mr Bowyer, the Principal Legal Officer at the Public Trustee, wrote to the Tribunal outlining the outcome of the Public Trustee's investigations. Those investigations showed that the bank account containing the inheritance funds now had a balance of $5.71. The investigations revealed that on 30 July 2010, there was a withdrawal of $103,400.80 from the account. On the same date, one of the joint administrators bought a Nissan Patrol motor vehicle for $35,990. The Public Trustee understood that other motor vehicles were bought with the funds from the represented person's account, but those motor vehicles were damaged. The Nissan Patrol which had been purchased on 30 July 2010 had mechanical problems and had been taken back to the premises of the dealer, from whom it was purchased, (the dealer) to be repaired. The Public Trustee understood, from information obtained from the dealer, that the joint administrator had sold the Nissan Patrol to a third party. The third party had, apparently, removed the vehicle from the dealer's premises. 9 In the circumstances, the Public Trustee sought an injunction to freeze any bank account held by the joint administrator at the bank at which she was believed to have an account. He also sought an order directing the bank to provide details of bank accounts held by it of which either of the joint administrators was an account holder. Orders to that effect were made on 10 December 2010 as follows: 1. An injunction to freeze any bank account held at the [nominated] Bank, [nominated] Branch of which [the first joint administrator], born [date specified], is an account holder is granted, save for withdrawal of up to $500.00. (Page 5)
2. The [nominated] Bank is to provide by close of business Tuesday 14 December 2010 the names, balances and account numbers of all bank accounts held at the [nominated] Bank, [nominated] Branch of which [the first joint administrator], [date specified], and/or [the second joint administrator] is an account holder. 3. [The first joint administrator] has liberty to apply to set aside or vary the order on notice to the Public Trustee. 4. The proceeding is adjourned to a further directions hearing to commence at 11 am on 21 December 2010 in order to review the necessity to continue this order. 10 On 13 December 2010, the Public Trustee wrote to the Tribunal providing further information as to its ongoing inquiries. Those inquiries had resulted in the Public Trustee identifying the location of the Nissan Patrol and ascertaining that the third party had not yet paid the purchase price of the vehicle. Enquiries of the bank had ascertained that the combined accounts of one of the joint administrators held a total of less than $500. 11 The letter continued that the Public Trustee no longer sought an injunction pursuant to s 90 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), but rather made its application pursuant to s 72(1) of the Guardian and Administration Act 1990 (WA) (GA Act) and Pt B of Sch 2 of the GA Act. The orders which the Public Trustee sought were: • An order restraining [the third party] from removing or permitting the Nissan Patrol to be removed from [the location at which it was stored] except in accordance with these orders. • An order restraining [the dealer] and its employees, servants and agents from releasing any parts of the Nissan Patrol that it may hold, except in accordance with these orders. • An order restraining [the first joint administrator] from selling, charging, transferring, mortgaging or otherwise dealing with the Nissan Patrol or from driving or towing it or causing it to be driven or towed, or from collecting or selling any parts of it. • An order authorising a representative of [a nominated towing company] to enter [the specified premises at which the Nissan Patrol was stored] and to tow it to [the towing company's premises] and to store it there until further order. • An order authorising a representative of [the towing company] to enter the premises of [the dealer] collect the gear box for the (Page 6)
Nissan Patrol and store it at its premises at [the specified address] until further order. 12 In addition, the Public Trustee sought certain orders pursuant to s 35 of the SAT Act seeking from the Department of Transport details of all motor vehicles registered in certain specified names, being the names of persons who were thought to have received motor vehicles as a result of the improper use of the represented person's funds. 13 The Public Trustee's application was listed on an urgent basis to be dealt with on 14 December 2010. At the hearing, the question of the Tribunal's jurisdiction to make the orders sought was raised.
The Tribunal's jurisdiction to make preservation orders 14 Section 72 of GA Act provides: Further provisions as to authority of administrators (1) The State Administrative Tribunal may give any direction, make any order or do any other thing provided for in Part B of Schedule 2. (2) Without limiting this section or section 71, the State Administrative Tribunal may make any other order (whether or not of the same nature as those so provided for) that it thinks necessary or expedient for the proper administration of the estate of the represented person. (3) Notwithstanding this section or section 71, an administrator shall not without the authority of the State Administrative Tribunal under section 71(5) - 15 Paragraphs (e) and (f) of Pt B of Sch 2 provides that the Tribunal may (e) make such orders as it thinks fit for the purpose of preserving the nature, quality, tenure or devolution of any property forming part of the estate and direct that any money be carried to a separate account and declare the notional character which the money in that account bears; (Page 7)
(f) for the purpose of making an order referred to in paragraph (e) of this Part or informing itself for the purposes of section 68(2)(b), exercise its powers to require the production of documents by calling for, and inspecting, any testamentary instrument of the represented person; … 16 The orders sought by the Public Trustee in relation to the various motor vehicles were all directed to the preservation of property forming part of BG's estate. At the hearing we took the view that, on that basis, the orders come within the broad scope of orders which might be made pursuant to s 72(1) and para (e) of Sch 2 Pt B. 17 We recognise that, particularly when read with para (f), para (e) might be interpreted as being more limited to orders declaring the character of certain assets of a represented person's estate. For example, orders might be made under para (e) in order to ensure that a represented person's wishes as contained in their will are not defeated by dealings with property by an administrator. However, in our view, is open to give the paragraph a more extensive scope, as we did in making orders in this case. In taking that approach, we are mindful of s 71(5) of the GA Act which provides: In exercising its jurisdiction under this Part the State Administrative Tribunal may take a liberal view of the best interests of the represented person as mentioned in section 4(2), and in particular may, if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the represented person. 18 We are also mindful of the explanation of the purpose of the GA Act given by EM Heenan J (with whom the four other members of the Court agreed) in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] [44], where his Honour said: In this regard it seems essential to appreciate that the Guardianship and Administration Act isintended to "provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs … and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes" (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or illconsidered (Page 8)
personal decisions or action, or by unscrupulous or illadvised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection. These ends can be achieved, when it comes to dealings with the property and financial affairs of the person in need of assistance, by ensuring that any financial, property or commercial transactions which would, or might, jeopardise the financial security or interests of the disabled person, are only effective when performed by a properly appointed administrator and with the Board's consent. 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 for 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. 19 In our view, the power under s 72(1) to make orders preserving property is designed to assist administrators in performing their proper functions, and should not be read restrictively. 20 The orders are also justified having regard to the breadth of s 72(2) of the GA Act. 21 Section 4(2)(a) of GA Act identifies the primary concern of the Tribunal as being the best interests of any represented person. Section 70(2) identifies that an administrator acts in the best interest of a represented person if, as far as possible, the administrator acts in such a way as to protect the represented person from financial neglect, abuse or exploitation. In this case, the Tribunal specifically directed the Public Trustee at the time of appointing him as administrator, to investigate and report on the apparent misuse of the represented person's funds. It quickly became apparent that steps needed to be taken to protect any of the assets of the represented person which could be identified, and thereby to avoid further losses to his estate. The broad power expressed in s 72(2) empowers the Tribunal to make orders of the type sought by the Public Trustee where they are necessary for the proper administration of a represented person's estate. (Page 9)
22 Section 35 of the SAT Act empowers the Tribunal to make an order for the production by third parties of documents to the Tribunal or to a party to the relevant proceeding. That power is available to facilitate the effective operation of directions and orders made under s 72(1). Thus it is open to the Tribunal to order, as it had in this case, that a bank, the Commissioner of Police or the Department of Transport, produce relevant documents or records under s 35 of the SAT Act.
The power to order 23 The power to make orders under s 72(1) of the GA Act and s 35 of the SAT Act is not limited to a judicial member. This is to be contrasted with s 90 of the SAT Act which deals with interim injunctions, and limits the power to make such orders to a judicial member. Orders made under s 72(1) of the GA Act may operate as injunctive orders. They may require a person to refrain from doing some act, or require that a person do some specific act. While any member of the Tribunal is empowered to make orders under s 72(1) and para (e) of Sch 2 Pt B and s 72(2) of the GA Act, consideration should be given as to whether, in light of the nature and effect of the order sought, the matter should be referred to the President of the Tribunal to consider whether it might be appropriate to reconstitute the Tribunal to include a judicial member to deal with the application. That is what occurred, appropriately, in this case.
The orders 24 It was on that basis that the Tribunal acceded to the request of the Public Trustee, as administrator, to make orders protecting and preserving the represented person's assets, and requesting third parties to produce documents to aid that objective. 25 The orders made (amended to preserve confidentiality as required by s 113 of the GA Act) were as follows: 1. [The third party] of [the specified address] is restrained from removing or permitting the Nissan Patrol [the specified registration number] ('the Nissan Patrol') to be removed from [the location at which it is stored] except in accordance with these orders. 2. [The dealer] [specified ABN number] and its employees, servants and agents are restrained from releasing any parts of the Nissan Patrol that it may hold, except in accordance with these orders. 3. [The first joint administrator], being one of the former administrators of BG, is restrained from selling, charging, transferring, mortgaging or otherwise dealing with the Nissan (Page 10)
Patrol and from driving or towing it or causing it to be driven or towed, or from collecting or selling any parts of it. 4. A representative of [a nominated towing company] is authorised to enter [the specified premises at which the Nissan Patrol has been stored], tow the Nissan Patrol to [the towing company's premises], and to store it there until further order. 5. A representative of [the towing company] is authorised to enter the premises of [the dealer], collect the gear box for the Nissan Patrol and store it at [the towing company's premises], until further order. |