Ricetti v Registrar of Titles
[2000] WASC 98
•17 APRIL 2000
RICETTI -v- REGISTRAR OF TITLES [2000] WASC 98
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 98 | |
| Case No: | CIV:1587/1999 | 13 APRIL 2000 | |
| Coram: | MILLER J | 17/04/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Summons dismissed | ||
| PDF Version |
| Parties: | CHARLES RICETTI REGISTRAR OF TITLES |
Catchwords: | Power of attorney Registration of enduring power of attorney under Transfer of Land Act 1893 Whether more than two donees can be appointed under Guardianship and Administration Act 1990 |
Legislation: | Guardianship and Administration Act 1990, s 102, s, 104, s 106 Interpretation Act 1984, s 10 Transfer of Land Act 1893, s 143 |
Case References: | Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658 Drew v Nunn (1879) 4 QBD 661 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
REGISTRAR OF TITLES
Defendant
Catchwords:
Power of attorney - Registration of enduring power of attorney under Transfer of Land Act 1893 - Whether more than two donees can be appointed under Guardianship and Administration Act 1990
Legislation:
Guardianship and Administration Act 1990, s 102, s, 104, s 106
Interpretation Act 1984, s 10
Transfer of Land Act 1893, s 143
Result:
Summons dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr J W Butler
Defendant : Mr J A Thomson
Solicitors:
Plaintiff : Butlers
Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658
Drew v Nunn (1879) 4 QBD 661
Case(s) also cited:
Nil
(Page 3)
1 MILLER J: By originating summons the plaintiff seeks a declaration that a power of attorney dated 5 May 1998 and made between the plaintiff as donor and Dorothy May Ricetti, William Charles Ricetti and Andrew Mark Ricetti as attorneys is a valid and subsisting enduring power of attorney within the meaning of s 102 of the Guardianship and Administration Act 1990 ("the Act"). An order is also sought that the defendant register the enduring power of attorney pursuant to s 143 of the Transfer of Land Act 1893.
2 The power of attorney made on 5 May 1998 was in simple terms. The plaintiff appointed his wife and two sons as joint and several attorneys and authorised them to do on his behalf anything that he could lawfully do by an attorney. It contained a declaration that the power of attorney should be in force only during any period when a declaration by the Guardianship and Administration Board that the plaintiff did not have legal capacity was in force under s 106 of the Guardianship and Administration Act. The power of attorney was accepted by each of the persons appointed to be the donees of the power of attorney.
3 When the plaintiff sought to register the power of attorney as an enduring power of attorney under s 143 of the Transfer of Land Act, the defendant advised the plaintiff's solicitors (who had lodged the power of attorney) that registration could not be effected by reason of the fact that an enduring power of attorney is limited to two donees only. The defendant clearly interpreted the provisions of s 102 of the Act as meaning that there could be one or, at most, two donees in an enduring power of attorney. That section is in the following terms:
"102. In this Part, unless the contrary intention appears -
'donee' includes 2 persons appointed, whether jointly or severally, to act under a power of attorney;"
4 Section 104 of the Act deals with the execution of an enduring power of attorney and provides:
"104.(1) An enduring power of attorney may be created by instrument -
(a) that is in the form or substantially in the form of Form 1 in Schedule 3;"
(Page 4)
Form 1
ENDURING POWER OF ATTORNEY
This Enduring Power of Attorney is made on the ………………………………
day of ………………………. 19 …………………, by AB of ………………...
under section 104 of the Guardianship and Administration Act 1990.
1. I APPOINT CD of ………………………………………………………..
(or CD of ……………………………. and EF of …………………… jointly)
(or CD of ……………………………. And EF of …………….…….. jointly
and severally) to be my attorney(s)."
6 The plaintiff's submission is that the use of the word "includes" in s 102 of the Act calls for a broad interpretation of the provision so that there is no limitation upon the number of persons who may be appointed as donees under an enduring power of attorney. Reference was made by counsel for the plaintiff to dictionary definitions of the word "includes", the essence of which are that the word means "to contain, embrace or comprise" (see Oxford English Dictionary (2nd ed); Macquarie Dictionary (3rd ed)).
7 Counsel for the plaintiff urged that the Act was a piece of legislation by which Parliament intended to help people prepare for a time when they would be unable to help themselves and should be liberally interpreted. Reference was made to second reading speeches when the Bill for the Act was introduced into Parliament, a common theme of which was that the government recognised the predicament that many elderly, mentally ill and intellectually disabled people were in and aimed at providing a mechanism for assisting them in a manner which would least restrict their civil liberties. It was put this way by the Minister for Health, Mr Wilson, in the second reading speech in the Assembly on 6 June 1990 (Hansard p 1916):
"This Government recognises the predicament that many elderly, mentally ill and intellectually disabled people are in, and we are providing a mechanism for assisting them in a manner which will least restrict their civil liberties. It includes legislative reform which will improve their lives and give them hope and direction, which is long overdue. Although this Bill has emanated from agencies concerned with the intellectually handicapped it can, and should, be extended to all persons who
(Page 5)
- can benefit from it. Accordingly, I commend this very worthwhile Bill to the House."
8 There is no specific reference to the provisions of s 102 of the Act in any of the second reading speeches or in any of the debates on the Bill.
9 Counsel for the defendant argued that the provisions of the Act relating to enduring powers of attorney must be considered against the background of the common law position, where a power of attorney ceases to have effect where the donor is precluded by law from acting in relation to the matter in which the donee purports to act: Drew v Nunn (1879) 4 QBD 661 at 665 - 667, 668. Part 9 of the Act was said to provide a statutory exception to the common law position by providing for enduring powers of attorney and is unique to Western Australia. The essential submission of counsel for the defendant was that the word "donee" is expressed in the singular, but the term is expressly extended by s 102 to include two persons, with the result that by specifically stating the plural meaning of "donee", Parliament must have been of the intention that "donee" did not include a situation where there is an attempt to appoint more than two persons. This interpretation was said to be borne out by Form 1 of Schedule 3 which provides only for the possibility of two donees - although it was conceded that the enduring power of attorney is, pursuant to the provisions of s 104 of the Act, to be in the form "or substantially in the form" of Form 1 in Schedule 3. It was pointed out by counsel for the defendant that in the absence of the definition of "donee" being extended to include two persons, the provisions of s 10 of the Interpretation Act 1984 would have had the consequence that "donee" being couched in the singular would have included the plural. It was therefore argued that it must have been the intention of Parliament to limit the number of donees in an enduring power of attorney to two and no more than two persons.
10 The word "includes" may or may not, when it appears in a provision of a statute be enacted as a complete and therefore exclusive statement of what the subject expression includes. In Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658, the Full Court of the Supreme Court of Victoria (at 660) put it this way:
"When the word 'includes' is used in a definition section, it is generally used to enlarge the meaning of the word it describes, that is to say to bring within the word something that would otherwise not be within it: Savoy Hotel Co v London County Council [1900] 1 QB 665 at 669. The classic statement is of
(Page 6)
- course to be found in the advice of the Privy Council in Dilworth v Comr of Stamps [1899] AC 99 at 105, which was quoted by the learned trial judge. Yet in a passage that is worth quoting, Kitto J has warned against taking that statement so literally as to reduce the inquiry to a consideration of the meaning of the word 'includes'. In YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at 401-2; [1964] ALR 667 at 670, Kitto J said: 'Unlike the verb "means", "includes" has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v Comr of Stamps [1899] AC 99 at 105, 106, should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word "includes". Strictly speaking, that word cannot be equivalent to "means and includes". But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if "means" had been the verb instead of "includes". The question whether a particular provision is exclusive although "includes" is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole.' "
11 In my view, counsel for the plaintiff is absolutely correct in the submission that the Act was intended to be "helpful" to persons who wished to create enduring powers of attorney. That does not, however, allow of a "liberal interpretation" of the definition of "donee" which is at odds with the plain meaning of the words used by Parliament in s 102 of the Act. In my view, the statement that "donee" includes two persons appointed, whether jointly or severally, to act under a power of attorney means there can only be one or at most two persons appointed as "donees". This may have an unfortunate result as is evidenced in the present case where the plaintiff is anxious to have his wife and two sons act as his attorneys. There will be many cases in which a restriction of the number of donees to two persons may create concern to the donor. The fact is, however, that Parliament has, by the provisions of s 102 of the Act, limited the number of donees to no more than two and this, in my view, is apparent on a plain reading of the section. It is a case in which the word "includes" is enacted as a complete and exclusive statement of
(Page 7)
- what the subject expression includes. I do not consider that the provisions of s 104 of the Act or Form 1 of Schedule 3 govern the question. It is a matter that depends upon a reading of the definition of "donee", the proper reading of which, in my view, is that one or at most two persons may be appointed donees in an enduring power of attorney.
12 It follows that, in my view, the originating summons should be dismissed.
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