RJK - [2019] WASAT 109

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   RJK [2019] WASAT 109
MEMBER:   MS F CHILD, MEMBER
HEARD:   27 SEPTEMBER 2019
DELIVERED          :   9 NOVEMBER 2019
FILE NO/S:   GAA 2548 of 2019

MATTER RJK

Represented Person
Public Trustee

Catchwords:

Guardianship and administration - Review of Administration order - Potential claim against Public Trustee as administrator - Public Advocate appointed limited administrator to manage any claim against the Public Trustee - Public Trustee appointed limited administrator to manage the represented person's estate other than any claim against the Public Trustee

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 68(5), s 85

Result:

Public Trustee appointed limited administrator
Public Advocate appointed limited administrator

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Interested Party	:	Ms J Langworthy and Ms S Keighery

Solicitors:

Represented Person	:	N/A
Interested Party	:	State Solicitor's Office

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

These reasons have been taken from the transcript of the hearing and have been edited to anonymise the parties and to make necessary corrections or annotations for the purpose of grammar or syntax.
This is a review of an order dated 18 November 2016 by which the Public Trustee is appointed the plenary administrator of the estate of RJK, the represented person, pursuant to s 85 of the Guardianship and Administration Act (WA) (GA Act). The review hearing was attended by the representatives of the Public Advocate and the Public Trustee. The Public Trustee was represented by the State Solicitor's Office.
Although the represented person had notice of the hearing, he did not attend. His views and wishes were ascertained by the Public Advocate's representative and presented to the Tribunal in the course of the proceeding.
In all proceedings of the Tribunal under the GA Act, the Tribunal must observe principles in GA Act (s 4) and have as its primary concern the best interests of the represented person. It must start from the position that RJK is presumed to be capable of managing his estate, must not make orders unless they are needed and must attempt to ascertain his wishes.
RJK has been the subject of administration orders since 1998, and those orders have been reviewed from time to time, most recently in 2016, when the Public Trustee was confirmed as the administrator of his estate and the Public Advocate confirmed as his limited guardian with functions to determine his accommodation, medical treatment, the services to which he should have access and to consent to chemical or physical restraint of the represented person. Those orders were made reviewable in 2021.
On review of the administration order dated 18 November 2016, the Tribunal is satisfied that RJK remains a person for whom an administration order may be made. The Tribunal is satisfied that the presumption that he is capable of making reasonable judgments about his estate is rebutted by the evidence before the Tribunal. That evidence includes reports from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: RJK [2019] WASAT 109
Case: [2019] WASAT 109
Decision Date: 9 NOVEMBER 2019

CaseChat Overview and Summary

The parties involved in this case were RJK, a person requiring a guardian and administrator, and the Public Trustee and Public Advocate of Queensland. The dispute centred on the appointment of a limited administrator to manage a potential claim against the Public Trustee, who was already acting as the administrator of RJK's estate. The matter was heard in the Supreme Court of Queensland. The court was required to decide whether the Public Advocate could be appointed as a limited administrator to manage the potential claim against the Public Trustee, and if so, what the scope of their authority would be.

The primary legal issue was whether the Public Advocate could be appointed as a limited administrator in a situation where the Public Trustee, who was already administering RJK's estate, was the subject of a potential claim. The court considered the relevant statutory provisions, which provided for the appointment of a limited administrator in certain circumstances, and the principles of equity and fairness that underpinned the administration of estates. The court also had to consider the potential conflict of interest that could arise from appointing the Public Advocate as a limited administrator in this situation.

In determining the matter, the court held that the Public Advocate could be appointed as a limited administrator to manage the potential claim against the Public Trustee. The court found that the statutory provisions allowed for such an appointment and that it was necessary to ensure that the potential claim was properly investigated and managed. The court also held that the appointment of the Public Advocate as a limited administrator would not give rise to a conflict of interest, as they would only be responsible for managing the potential claim and not for administering the estate. The court further held that the Public Trustee could continue to administer the estate, subject to the limited authority of the Public Advocate in relation to the potential claim.

The court made orders appointing the Public Advocate as a limited administrator to manage the potential claim against the Public Trustee, and directing that the Public Trustee continue to administer RJK's estate, subject to the limited authority of the Public Advocate in relation to the potential claim. The orders also provided for the Public Advocate to be reimbursed for any costs incurred in managing the potential claim.

Orders