SAL and JGL
[2016] WASAT 63
•10 MAY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SAL and JGL [2016] WASAT 63
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
DR B DE VILLIERS (MEMBER)
MS D QUINLAN (MEMBER)
HEARD: 10 MAY 2016
DELIVERED : 10 MAY 2016
PUBLISHED : 30 MAY 2016
FILE NO/S: GAA 1054 of 2016
BETWEEN: SAL
Applicant
AND
JGL
Represented Person
Catchwords:
Administration Review by Full Tribunal of determination of single member to dismiss application for administration order Proposed represented person lived in Western Australia for 30 years until mid1990s and now resides in Queensland Proposed represented person has significant cognitive impairment Proposed represented person has significant debts Son of proposed represented person appointed as financial administrator of his estate in Queensland by Queensland Civil and Administrative Tribunal Son received legal advice that proposed represented person should seek voluntary bankruptcy Debtor's Petition and Statement of Affairs not accepted because Queensland administration order does not specifically allow for bankruptcy proceedings Whether Queensland administration order 'recognised' in Western Australia Whether administration order can be made for proposed represented person in Western Australia Whether 'estate' of proposed represented person includes liabilities as well as assets Whether administration order should be made for proposed represented person in Western Australia Words and phrases: 'estate'
Legislation:
Bankruptcy Act 1966 (Cth)
Guardianship and Administration Act 1990 (WA), s 3(1), s 17A, s 40, s 64, s 64(1), s 67(1), s 68, s 68(3), s 70(3), s 71, s 71(3), s 83D, s 83D(1), Sch 2, Pt A
Guardianship and Administration Act 2000 (Qld)
Result:
Application for review allowed
Plenary administration order made
Summary of Tribunal's decision:
The son of a proposed represented person sought review by a Full Tribunal of the decision of a single member to dismiss the son's application for an administration order appointing him as his father's administrator. The proposed represented person had lived in Western Australia for 30 years until the mid1990s and since then has had an unclaimed money account in the amount of 45 cents from an inoperative TAB betting account in this State. The proposed represented person lives in Queensland and has significant cognitive impairment.
The son was appointed as financial administrator of his father's estate in Queensland by the Queensland Civil and Administrative Tribunal. The son received legal advice that because his father has significant debts, he should apply for voluntary bankruptcy. However, the Debtor's Petition and Statement of Affairs was not accepted, because the Queensland administration order does not specifically allow for bankruptcy proceedings. The son therefore applied for an administration order in Western Australia.
The Full Tribunal determined that the Queensland administration order is not 'recognised' in Western Australia, because the proposed represented person has not 'entered' this State. It could not therefore be said that there is no need for an administration order to be made in Western Australia, because of the Queensland administration order.
The Full Tribunal determined that an administration order can be made for the proposed represented person in Western Australia, because he is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate and is in need of an administrator of his estate. Although an administration order for a person not resident or domiciled in Western Australia is limited to the person's 'estate within Western Australia', the Full Tribunal determined that the proposed represented person's estate in Western Australia includes not only the small asset, in terms of the unclaimed money account, but also his significant debts.
The Full Tribunal also determined that it is in the best interests of the proposed represented person for there to be an administration order of his estate in Western Australia in order for an application for voluntary bankruptcy to be made. The Tribunal exercised its discretion to make an administration order, in the circumstances of this case, because of the represented person's longstanding connection with Western Australia and the fact that he has had an asset in this jurisdiction for the past 20 years.
Category: B
Representation:
Counsel:
Applicant: In Person
Represented Person : N/A
Solicitors:
Applicant: N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Orix Australia Corporation Limited v McCormick [2005] FCA 1032
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
SAL seeks a review by a Full Tribunal, pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act), of a determination made by a single member of the Tribunal, Mr D McLean, on 3 February 2016 to dismiss SAL's application for an administration order appointing him as the administrator of the estate of his father, JGL, in Western Australia.
Factual background
On 3 May 2015, JGL, then aged sixty one and a half years old, suffered a brain haemorrhage secondary to an aneurysm. He subsequently suffered a series of strokes. These events have resulted in significant cognitive impairment.
JGL currently resides in a rehabilitation facility in a suburb of Brisbane.
JGL lived and worked in Western Australia for 30 years until the mid1990s. He then moved to Queensland and has remained resident and domiciled there ever since.
On 16 October 2015, SAL, who is one of JGL's four children, was appointed as his father's financial administrator of his estate in Queensland by the Queensland Civil and Administrative Tribunal (QCAT) under the Guardianship and Administration Act 2000 (Qld) (Queensland Act).
On 18 January 2016, SAL made an application to the State Administrative Tribunal under s 40 of the GA Act for an administration order in respect of his father's estate in Western Australia, principally because he had obtained legal advice that it is in his father's best interests to make an application for voluntary bankruptcy and he had been informed that the QCAT administration order does not authorise him to make a bankruptcy application on behalf of his father, because it does not make explicit provision for such an application.
In particular, on 17 December 2015, the Australian Financial Security Authority informed SAL's agent that the Debtor's Petition and Statement of Affairs, which was lodged two days earlier, could not be accepted and was returned. Although the Australian Financial Security Authority had been provided with a copy of the QCAT administration order, it took the view, based on the decision of the Federal Court of Australia in OrixAustralia Corporation Limited v McCormick [2005] FCA 1032 (Orix), that the QCAT order 'does not specifically allow for bankruptcy proceedings to be taken by the appointed administrator, [SAL]'.
Given that the Orix decision specifically related to an enduring power of attorney under Queensland law, rather than to an administration order made by QCAT, SAL sought internal review of that decision. However, the decision was confirmed by more senior managers within the Australian Financial Security Authority. In consequence of that decision, SAL made the application for the appointment of an administrator by this Tribunal.
Finally, by way of background, JGL has significant unsecured credit card debts and other liabilities totalling approximately $410,000 and is unable to pay his debts as and when they fall due. SAL has obtained legal advice, which is before this Tribunal, that in the circumstances of his father's financial position, 'it would be appropriate for your father to file a debtor's petition to avail himself of the protections afforded to him under the Bankruptcy Act 1966 (Cth)'.
Is the Queensland administration order 'recognised' in Western Australia?
At the hearing before the single member of the Tribunal on 3 February 2016, the member discussed with SAL the potential operation of the Queensland administration order in Western Australia by virtue of s 83D of the GA Act. Section 83D(1) of the GA Act states as follows:
If the Minister is satisfied that the laws of another State or Territory relating to the administration of the estates of incapable adults correspond sufficiently with this Act the Minister may enter into an arrangement with the relevant Minister in that State or Territory for the recognition of the relevant orders (by whatever name known) made under the laws of that State or Territory in respect of persons who
(a)enter this State from that State or Territory; or
(b)enter that State or Territory from this State.
On 19 February 2008, an 'arrangement' under s 83D of the GA Act between the Hon Jim McGinty MLA, Attorney General for the State of Western Australia, and the Hon Kerry Shine, MP, AttorneyGeneral for the State of Queensland, was gazetted in the Government Gazette of Western Australia. The arrangement states that the Attorney General for Western Australia was satisfied that the Queensland Act relating to, relevantly, the administration of estates of adults, corresponds sufficiently with the GA Act, and the Attorney therefore agreed that 'administration orders under the [Queensland Act] in respect of adult persons who enter Western Australia be recognised in Western Australia'.
Member McLean determined at the hearing on 3 February 2016 that he was not satisfied that there was a need for the appointment of an administrator in Western Australia in the circumstances of this case, given that QCAT has made an administration order and that, under the arrangement in place under s 83D of the GA Act, that administration order is recognised in this State.
However, as SAL submits before the Full Tribunal, that determination involves an error, because JGL has not 'entered' Western Australia. Both s 83D(1) of the GA Act and the arrangement made under that provision between the Governments of Western Australia and Queensland state that an administration order will only be recognised when the person the subject of the order 'enters' Western Australia. Given that JGL has remained in Queensland since the administration order was made by QCAT, the Queensland administration order is not 'recognised' in Western Australia under s 83D of the GA Act and the arrangement entered into pursuant to that provision.
Can an administration order be made for JGL in Western Australia?
Section 64(1) of the GA Act states as follows:
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
The term 'mental disability' is defined in s 3(1) of the GA Act to include an acquired brain injury.
Section 4(1) and s 4(2) of the GA Act state as follows:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
We are satisfied that JGL is unable, by reason of an acquired brain injury, which is a mental disability, to make reasonable judgments in respect of matters relating to all of his estate. In this regard, we accept the opinion of Dr JW at Royal Brisbane Hospital that JGL is incapable of making decisions in relation to his financial affairs.
Also relevant in this proceeding is s 67(1) of the GA Act, which states as follows:
An order may be made under section 64(1) in respect of a person who is not resident or domiciled in Western Australia, but any such order is limited to the person’s estate within Western Australia.
There is evidence before the Tribunal that JGL has an unclaimed money account with the Western Australian Department of Treasury in the amount of 45 cents from an inoperative betting account with Racing and Wagering WA (formerly known as the TAB) which has existed since the 1990s. SAL has caused title searches to be carried out in Western Australia which show that his father does not have any real estate in this State. SAL also gave evidence that his mother has told him that all bank accounts that his father and mother had while they were resident in Western Australia have been closed.
SAL said, therefore, that it is 'very unlikely' that his father would have any assets in Western Australia beyond the unclaimed money account. However, it is possible, given that JGL resided in Western Australia and worked here for 30 years, that there is some other asset within this jurisdiction, and the evidence shows that there is a small, but longstanding, asset in Western Australia, in the form of the unclaimed money account.
Furthermore, as SAL submits, his father's 'estate within Western Australia', within the meaning of s 67(1) of the GA Act, includes not only the small asset, in terms of the unclaimed money account, but also significant debts, to which we have referred.
The term 'estate' is not defined in the GA Act. The word bears its ordinary meaning. The apposite meaning of 'estate' is:
… The collective assets and liabilities of a person, esp. one deceased or bankrupt. …
(Shorter Oxford English Dictionary Vol 1, 5th ed, page 861)
… property viewed as an aggregate, as in partnership estate, trust estate, estate of a deceased person …
(Macquarie Dictionary, 6th ed, page 504)
The words 'collective assets and liabilities' and 'viewed as an aggregate' indicate that 'estate' incorporates both assets and liabilities and therefore the 'estate within Western Australia' of JGL includes not only his small asset in terms of the unclaimed money account, but also his significant liabilities.
We are satisfied, on the evidence presented to the Tribunal, that JGL is 'in need of an administrator of his estate' for the purposes of s 64(1)(b) of the GA Act, and that it is in his best interests for there to be an administration order of his estate in Western Australia in order for an application for voluntary bankruptcy to be made. JGL is therefore a person for whom an administration order can be made in Western Australia under the GA Act.
Should an administration order be made for JGL in Western Australia?
The specific order sought by SAL is an order pursuant to s 71(3) of the GA Act and, in particular, item 18 of Pt A of Sch 2 to the GA Act. Section 71(3) of the GA Act states as follows:
Where the State Administrative Tribunal does not under section 69 vest plenary functions in an administrator, it may, under that section, authorise the administrator to perform any specified function, including one or more of those set out in Part A of Schedule 2.
Item 18 of Pt A of Sch 2 to the GA Act states the following specific function:
To sequestrate the estate of the represented person, under the provisions of the bankruptcy laws.
We consider that it is in the best interests of JGL for there to be a plenary administration order of his estate in Western Australia, although, without limitation and for the avoidance of doubt, for the administration order to specifically provide for the power to sequestrate the estate of the represented person under the bankruptcy laws. We have come to this view because it is in the best interests of JGL for thorough searches to be made of both potential bank accounts and other assets in Western Australia, given his long residence in this State, and for any assets to be secured and used against his significant debts.
We are satisfied under s 64(1) of the GA Act that JGL (a) is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all of his estate and (b) is in need of an administrator for his estate. The Tribunal is therefore authorised to make an administration order for JGL.
As the word 'may' in s 64(1) of the GA Act indicates, when the Tribunal is authorised to make an administration order for a proposed represented person, it has a discretion as to whether or not to do so.
We are satisfied that, in the particular circumstances of this case, the discretion conferred on the Tribunal should be exercised to make an administration order. We have come to that view, because although JGL is no longer resident or domiciled in Western Australia, he was resident and domiciled in this State for 30 years and, since then, has had an asset in this State. Given JGL's longstanding connection with Western Australia and the fact that he has an asset in this jurisdiction for the past 20 years, we consider that it is appropriate to exercise the Tribunal's discretion to make an administration order.
Who should be appointed as JGL's administrator?
The next question that the Tribunal must consider is who should be appointed as the administrator. We are satisfied, under s 68 of the GA Act, that SAL is a person who will act in the best interests of his father and is otherwise suitable to act as the administrator of his father's estate. In coming to this view, we have taken into account, as required by s 68(3), whether SAL will be able to perform functions proposed to be vested in the administrator.
Having heard SAL's evidence, we have no doubt that he has his father's best interests at heart and has sought to negotiate the complications of federal bankruptcy law in his father's best interests since late 2015. We also consider that it is appropriate for the same person who is appointed as JGL's administrator in Queensland to be his administrator in Western Australia to ensure that his total estate is administrated in a coordinated and cohesive manner.
When should the administration order be reviewed?
The final matter the Tribunal must consider is the length of the order. Administration orders cannot be made indefinitely and must be reviewed at least every five years by this Tribunal. Given that, unfortunately, JGL's mental disability is unlikely, on the medical evidence, to improve, we consider that a five year order should be made. If, in fact, there is a change of circumstance, then an application can be brought to the Tribunal for a review of that order in the interim.
Orders
For these reasons we make the following declaration and the following orders.
The Tribunal declares that JGL:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate,
and the Tribunal orders that:
1.The application for review is allowed.
2.SAL of [address] is appointed plenary administrator of the estate of JGL including without limitation and for the avoidance of doubt to exercise the following power:
(a)to sequestrate the estate of the represented person under the bankruptcy laws.
3.The administration order is to be reviewed by 9 May 2021.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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