SE and ME
[2017] WASAT 38
•28 FEBRUARY 2017
SE and ME [2017] WASAT 38
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 38 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:767/2016 | 14 JULY AND 18 OCTOBER 2016 | |
| Coram: | MS F CHILD (MEMBER) | 28/02/17 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Preliminary issue determined | ||
| B | |||
| PDF Version |
| Parties: | SE ME EE |
Catchwords: | Enduring power of attorney Application for intervention in an enduring power of attorney pursuant to s 109 of Guardian and Administration Act 1990 (WA) |
Legislation: | Guardianship and Administration Act 1990 (WA), s 102, s 104, s 104(2)(b), s 109, s 109(1)(a), s 109(1)(b) Limitation Act 1935 (WA) State Administrative Tribunal Act 2004 (WA), s 47 |
Case References: | GA and EA and GS [2013] WASAT 175 |
Summary | The applicant is a sentenced prisoner in custody in Western Australia. With the assistance of his solicitor, the applicant filed an application for intervention in an enduring power of attorney (EPA), pursuant to s 109(1)(a) of the Guardian and Administration Act 1990 (WA) (GA Act) for the filing of records kept by the attorneys. ,When he received the notice of hearing, one of the attorneys (EE) provided the Tribunal with a copy of a power of attorney (POA) dated 26 January 2000 made by the applicant. The instrument states that it is created pursuant to s 104 of the GA Act and survives legal incapacity of the donor. The instrument appoints the brothers of the applicant, ME and EE jointly, as his attorneys.,In a letter dated 29 November 2004, also provided to the Tribunal by EE, the applicant had notified the attorneys that the POA was revoked and that all his records should be passed to RG, an accountant.,In the course of the proceedings the Tribunal raised the question of whether the POA was an EPA for the purposes of the GA Act. ,A preliminary issue was raised by the Tribunal as to whether the Tribunal had jurisdiction to intervene and make the orders sought by the applicant, if the POA was not an EPA for the purposes of the GA Act. ,The applicant then filed a copy of another instrument, in the standard for of an EPA provided in the GA Act dated 1 March 2000 by which the applicant appointed his brothers, EE and ME jointly and severally as his attorneys (EPA).,The applicant concedes that the POA is not an EPA for the purposes of the GA Act but maintains that the Tribunal's jurisdiction to make the orders is enlivened by the second EPA.,It is submitted on behalf of EE that since the EPA had been revoked in 2004, that it is unreasonable for the attorneys to maintain records for nearly 12 years.,Other than emails in which he said that he had passed records to RG, ME did not attend hearings or provide any substantive submissions or evidence to the Tribunal.,The Tribunal determined the preliminary issue that the POA was not an EPA for the purposes of the GA Act as did not comply with the requirements of the GA Act for execution of an EPA. However, the EPA executed by the applicant in March 2000 is an EPA for the purposes of the GA Act and that this enlivens the jurisdiction of the Tribunal to make the orders sought.,In respect of the substantive issue, the applications under s 109(1)(a) and 109(1)(b) and whether the Tribunal should exercise the discretion to make the orders sought. ,The Tribunal considered previous decisions of the Tribunal which had identified that to exercise the discretion and make the orders sought for the filing of records, the Tribunal must be satisfied that there is something which requires an enquiry.,Considerable material has been filed to date on behalf of the applicant and by EE which provide some information about the management of the applicant's affairs by the attorneys both during their appointment and then following the revocation of the powers which appointed them.,Allegations are made in the material that documents were not in fact passed to RG and that ME failed to cooperate with the provision of records to RG as requested.,Although the Tribunal accepted there had been a significant elapse of time since the EPA was revoked and the donor is capable and has revoked and made further EPA's since the revocation of the EPA in question, the applicant has been in custody since prior to the execution of the POA and EPA and therefore has limited access to legal advice or assistance. He has, it is understood, an ongoing interest in the management of his affairs, in particular, in respect of his superannuation which is in a Self Managed Fund understood to be managed by ME.,It appears from the material filed with the Tribunal to date that the attorneys were on notice that the applicant sought material from them when the EPA was revoked in 2004 and it is argued that there was a failure to provide those documents.,In the circumstances, there is prima facie sufficient for the Tribunal to determine that there is something which requires an enquiry. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : SE and ME [2017] WASAT 38 MEMBER : MS F CHILD (MEMBER) HEARD : 14 JULY AND 18 OCTOBER 2016 DELIVERED : 28 FEBRUARY 2017 FILE NO/S : GAA 767 of 2016
- GAA 1147 of 2016
- Applicant
AND
ME
First Named Respondent
EE
Second Named Respondent
Catchwords:
Enduring power of attorney - Application for intervention in an enduring power of attorney pursuant to s 109 of Guardian and Administration Act 1990 (WA)
Legislation:
Guardianship and Administration Act 1990 (WA), s 102, s 104, s 104(2)(b), s 109, s 109(1)(a), s 109(1)(b)
Limitation Act 1935 (WA)
State Administrative Tribunal Act 2004 (WA), s 47
Result:
Preliminary issue determined
Summary of Tribunal's decision:
The applicant is a sentenced prisoner in custody in Western Australia. With the assistance of his solicitor, the applicant filed an application for intervention in an enduring power of attorney (EPA), pursuant to s 109(1)(a) of the Guardian and Administration Act 1990 (WA) (GA Act) for the filing of records kept by the attorneys.
When he received the notice of hearing, one of the attorneys (EE) provided the Tribunal with a copy of a power of attorney (POA) dated 26 January 2000 made by the applicant. The instrument states that it is created pursuant to s 104 of the GA Act and survives legal incapacity of the donor. The instrument appoints the brothers of the applicant, ME and EE jointly, as his attorneys.
In a letter dated 29 November 2004, also provided to the Tribunal by EE, the applicant had notified the attorneys that the POA was revoked and that all his records should be passed to RG, an accountant.
In the course of the proceedings the Tribunal raised the question of whether the POA was an EPA for the purposes of the GA Act.
A preliminary issue was raised by the Tribunal as to whether the Tribunal had jurisdiction to intervene and make the orders sought by the applicant, if the POA was not an EPA for the purposes of the GA Act.
The applicant then filed a copy of another instrument, in the standard for of an EPA provided in the GA Act dated 1 March 2000 by which the applicant appointed his brothers, EE and ME jointly and severally as his attorneys (EPA).
The applicant concedes that the POA is not an EPA for the purposes of the GA Act but maintains that the Tribunal's jurisdiction to make the orders is enlivened by the second EPA.
It is submitted on behalf of EE that since the EPA had been revoked in 2004, that it is unreasonable for the attorneys to maintain records for nearly 12 years.
Other than emails in which he said that he had passed records to RG, ME did not attend hearings or provide any substantive submissions or evidence to the Tribunal.
The Tribunal determined the preliminary issue that the POA was not an EPA for the purposes of the GA Act as did not comply with the requirements of the GA Act for execution of an EPA. However, the EPA executed by the applicant in March 2000 is an EPA for the purposes of the GA Act and that this enlivens the jurisdiction of the Tribunal to make the orders sought.
In respect of the substantive issue, the applications under s 109(1)(a) and 109(1)(b) and whether the Tribunal should exercise the discretion to make the orders sought.
The Tribunal considered previous decisions of the Tribunal which had identified that to exercise the discretion and make the orders sought for the filing of records, the Tribunal must be satisfied that there is something which requires an enquiry.
Considerable material has been filed to date on behalf of the applicant and by EE which provide some information about the management of the applicant's affairs by the attorneys both during their appointment and then following the revocation of the powers which appointed them.
Allegations are made in the material that documents were not in fact passed to RG and that ME failed to cooperate with the provision of records to RG as requested.
Although the Tribunal accepted there had been a significant elapse of time since the EPA was revoked and the donor is capable and has revoked and made further EPA's since the revocation of the EPA in question, the applicant has been in custody since prior to the execution of the POA and EPA and therefore has limited access to legal advice or assistance. He has, it is understood, an ongoing interest in the management of his affairs, in particular, in respect of his superannuation which is in a Self Managed Fund understood to be managed by ME.
It appears from the material filed with the Tribunal to date that the attorneys were on notice that the applicant sought material from them when the EPA was revoked in 2004 and it is argued that there was a failure to provide those documents.
In the circumstances, there is prima facie sufficient for the Tribunal to determine that there is something which requires an enquiry.
Category: B
Representation:
Counsel:
Applicant : Bogdan Soctor
First Named Respondent : N/A
Second Named Respondent : Ms Bechelet
Solicitors:
Applicant : MGB Legal
First Named Respondent : N/A
Second Named Respondent : Avon Legal
Case(s) referred to in decision(s):
GA and EA and GS [2013] WASAT 175
Introduction
1 SE, the applicant, is a prisoner in custody in a prison in Western Australia. In 2000, he executed instruments, while in custody, which appointed his brothers, ME and EE, as his attorneys. By letter dated 29 November 2004 he revoked those instruments.
2 The applicant now seeks orders for intervention pursuant to s 109(1)(a) and 109 (b) of the Guardianship and Administration Act 1990 (GA Act) GA Act.
Proceeding before the Tribunal
3 On 16 February 2016, SE filed applications with the assistance of his solicitor pursuant to s 109(1)(a) and 109(1)(b) of the GA Act, seeking orders intervening in an enduring power of attorney dated 26 January 2000, by which he appointed his brothers, ME and EE jointly as his attorneys (attorneys).
4 A document dated 26 January 2000 which recited that it was created pursuant to s 104 of the Guardianship and Administration Act 1990 (GA Act) GA Act was filed later by EE, one of the attorneys.
5 Standard orders were made by the case management member for the filing of documents, including the filing of a current statement of assets and liabilities of the donor by the attorneys and an application pursuant to s 109(1)(b)was invited from the applicant.
6 The application was listed for hearing and notice given to the attorneys.
7 The original programming orders were later amended as the Tribunal accepted that the instrument, the subject of the application, had been revoked.
8 Further orders made by the Tribunal on 25 February 2016 and 8 April 2016 ordered submissions to be filed from the parties regarding whether the applications were out of time as submitted by EE.
9 Standard orders were made for the production of documents to the legally represented parties and for access to be granted on application to inspect documents filed with the Tribunal. ME did not seek access to the documents filed.
10 The proceedings were protracted because of the inability of the applicant to comply with orders for the filing of submissions. Time was extended because the Tribunal accepted that the applicant had difficulty complying with standard time frames, given the limitations on his communication and access to his solicitor as he was in custody and access to all forms of communication is restricted and therefore delays are inevitable. In addition, both he and his solicitor experienced health problems in the course of the proceedings which also led to delays.
11 At the directions hearing on 18 October 2016, the Tribunal raised the question, which had not been raised by the parties, as to whether the instrument dated 26 January 2000, which is the subject of these proceedings, is in fact an EPA created under s 104 of the GA Act. In particular, whether there is an acceptance in the form or substantially in the form required pursuant to s 104(2)(b) of the GA Act to create an EPA.
12 This question is fundamental since, if the POA is not an EPA for the purposes of the GA Act, then the Tribunal does not have jurisdiction to intervene. The Tribunal ordered that this question should be determined as a preliminary issue and ordered the parties to make and exchange submissions on this point.
13 Following this, a document was submitted on 11 November 2016 on behalf of the applicant which was a copy of an EPA in the standard form prepared by solicitors.
14 Submissions have been filed by the applicant and by EE in respect of the preliminary question and in respect of the substantive applications.
15 Other than emails dated 18 March 2016 and 8 August 2016 and a letter dated 23 August 2016 advising that he could not comply with orders made by the Tribunal for the filing of documents, ME played no part in the proceedings.
16 Although ME indicated he was seeking legal advice, no notice of representation was filed and he did not attend any of the hearings before the Tribunal. EE was legally represented and attended hearings of the Tribunal (other than when he was working away from the metropolitan area) and detailed submissions were filed on his behalf.
Evidence and material before the Tribunal
The following documents were filed with the Tribunal:
1. The application.
2. A Landgate copy of a power of attorney (POA) dated 26 January 2000 by which the applicant appointed his brothers, ME and EE, jointly as his attorneys (attorneys). The POA has 38 clauses and at clause 37 states it 'is executed under s 104 of the Guardianship and Administration Act'. At clause 38, it states that 'it will continue in force notwithstanding my subsequent legal incapacity'. The document is witnessed by two prison officers. There is no acceptance. The copy indicates that the POA was registered with Landgate on 17 October 2003 together with a statutory declaration signed by the attorneys stating they believed it to be unrevoked. The registration notes the attorneys are to act jointly and lists the powers which include the power to sell.
3. An EPA dated 1 March 2000 by which the applicant appoints ME (chartered accountant) and EE (tyre fitter) jointly and severally as his attorneys. The EPA is not subject to restriction and is declared to be in force notwithstanding subsequent legal incapacity of the donor. The EPA is witnessed by two solicitors. There is, on the reverse of the document, an acceptance in the standard form signed by the attorneys. The EPA was filed with the Tribunal on 11 November 2016.
4. An email from ME dated 18 March 2016, states:
…
4. I do not have any files or paperwork in my possession.
5. The Power of Attorney and all related matters were revoked by [SE] in 2004, some 12 years ago.
6. All the paperwork, files, bank statements, data, invoices etc were delivered to [name deleted], Chartered Accountants in [suburb name deleted] as per the instructions we received.
7. We did not keep copies of any of the details referred to in [paragraph] 6.
8. Accordingly (from my perspective) I cannot provide any details or data to the State Administrative Tribunal as the Power of Attorney was revoked 12 years ago & I have not kept copies of anything that was delivered to [the chartered accountants] throughout 2004 and 2005.
…
5. An affidavit from EE dated 20 May 2016 which attests that he has provided to the applicant copies of all records and documents in his possession related to his role as attorney.
6. Documents filed by EE are:
a) a copy of a power of attorney (POA) dated 26 January 2000 made by the applicant;
b) Landgate search result which shows the POA as still registered;
c) copies of transfer of land documents relating to the transfer of properties of the applicant by sale in December 2003 and February 2004. The Transferor is noted as the applicant. The transfer is signed by ME and EE 'as attorneys or [the applicant] pursuant to power of attorney 1663354';
d) bank statements for the period 9 August 2005 to 6 January 2006 and 7 January 2006 to 20 January 2006. The second statement indicates the account was closed and the balance of funds of $2173.75 transferred to a firm of solicitors. The bank statements refer to the attorneys as 'trustees for the applicant'. (It is noted that these periods are outside the period when the EPA was in force); and
e) a letter from the applicant to ME and EE dated 29 November 2004.
Upon your receipt of this notification, I wish to notify both of you, that I Revoke the 'Enduring Power of Attorney' created under section (104 of the Guardianship and Administration Act 1990) under which you have been jointly managing my affairs, since early in the year 2000. This revoking notification is effective immediately.
Please forward to [RG], [name suppressed] Chartered Accountants [address suppressed] all assets, and documentation, including but not limited to (Property being [address suppressed], title deeds, share certificates and stock exchange records, superannuation or monies held in [name suppressed] Employees Provident fund, cash at hand or held in bank accounts) … all assets, held in my name or any asset, which was previously held in my name and may now be held within a different facility.
Further please forward to [RG, name suppressed] all financial records and files, including but not limited to, (documentation, and correspondence of all dealings and transactions, accounts, bank statements, rental income, property holding costs, upkeep and maintenance invoices and receipts, records and accounts, tax returns, details on tax refunds and the placement of those refunds) [i]ncluding full records and files, to [RG, name suppressed] of any (trading in shares as well as all dividends paid on all shares, [companies' names suppressed] up to November 2004, and any other holdings). Also criminal compensation payment records, all [correspondence] bank refinancing and remortgaging documents records, and correspondence, employment termination payments documents records, details, and the placement of those funds, superannuation or [employer] Provident Fund records and the placement of those funds, correspondence, and documentation. A complete list of all fees charged by [ME], and or his companies, and any other records, details of dealings or transactions, kept by you, made by yourselves in undertaking the duties in your capacity as my revoked 'Power of Attorney' as mentioned above.
Please also provide a summary of all major transactions undertaken in the administration of my affairs carried out under the recognition of the revoked 'Power of Attorney'.
I also request that you forward to [RG] all originals and copies of the revoked 'Enduring Power of Attorney' which [were] signed early in the year 2000, and my last Will, all [originals] and copies, please give these two items your immediate attention.
7. Documents were filed by the applicant on 3 June 2016 which includes financial records of the applicant and correspondence. A letter dated 26 November 2004 from RG to SE (the applicant) reports on the conduct of SE's affairs and the investigations conducted by RG regarding various assets which the applicant had advised were in his name and on an employer Provident Fund as follows:
Accrued benefits in [the] name of [name suppressed] of $63,502.09 were transferred into the [name suppressed] Superannuation Fund on 11 May 2004. (A selfmanaged superannuation fund).
RG states that the cheque for the accrued benefits was sent to ME at a post office box which is understood to be ME's business address.
9. A letter dated 8 September 2005 from RG to ME raises questions about the viability of the selfmanaged superannuation fund (SMSF) into which the applicant's redeemed superannuation from the Provident fund had been transferred. The letter also raises concerns about the SMSF's compliance with legal requirements and makes the assertion that apportionment of losses between the beneficiaries of the SMSF was not correct.
The letter goes on to say:
Although you were notified on 29 November 2004 of the revocation of the Power of Attorney, there still remains the following outstanding matters:
• There has been no accounting to [name suppressed] for the stewardship of the funds administered by you since your appointment as attorney.
• [Name suppressed] records have not been handed over in their entirety and in fact, the bulk of the records handed over are for the period prior to your appointment as attorney.
• No assets of [name suppressed], other than holding statements for the [company name suppressed] share holdings have been handed over.
11. A letter written by RG dated 31 May 2008 to a third party, regarding the performance of ME as the applicant's attorney, states the following:
I advise that the records, when they were finally recovered from [ME], and that was only achieved after having to formally seek assistance from the Institute of Chartered Accountants, were incomplete in a number of material matters.
1. There was no formal accounting for all monies received or monies expended.
2. There was no reconciliation of the bank account.
3 There were numerous material unexplained transactions in [SE's] bank records.
4. No accounting of the financial affairs was ever provided to [SE's] although requested by him on many occasions.
5. The income tax returns were several years in arrears.
6. There appeared to be the mixing of [name suppressed] funds with [SE's] funds with [ME's] funds.
It is my professional opinion that [ME] in conducting this engagement, did not apply the standards of impartiality, independence and professionalism that as a Chartered Accountant he should have known were required.
12. Submissions filed for EE in May 2016 argue that
The applications should be dismissed as they are out of time. Although the GA Act and the State Administrative Tribunal Act 2004 (SAT Act) do not prescribe time limits in which an application must be brought, it is argued that the general law governing statutory limitation periods applies. It is submitted that the application under s 109 of the GA Act is analogous to the equitable remedy of the passing of accounts. Although the Limitation Act 1935, which it is argued is the applicable Act, does not provide a limitation period for equitable claims, it is submitted that as equity follows the law the Act has been adopted by the Court as the rule of procedure. As such, if the application were in the Supreme Court, an application for extension of time would be required. It is observed that the Tribunal has no power to extend time except as provided in any enabling legislation.
The applications should be dismissed because it is, in any event, unreasonable to require records be maintained for nearly 12 years. From November 2004 to the filing of the application that EE had not had a request from the applicant for records and that EE has provided all the documents in his possession.
That following the filing of his submissions in May 2016 that if the applicant continues the proceedings after the receipt of the submissions, that this amounts to an abuse of process and should be dismissed pursuant to s 47 of the SAT Act as misconceived, or an abuse of process.
18 At the time the EPA (and the POA) the subject of these proceedings were executed, the GA Act provided for the following. (There have been amendments to this part since that time but, other than the jurisdiction of the Guardianship and Administration Board being exercised since 2004 by the Tribunal, these are not material to the issues to be decided).
102. Terms used
In this Part, unless the contrary intention appears
doneeincludes 2 persons appointed, whether jointly or severally, to act under a power of attorney and may, in accordance with section 104B(2), include a substitute donee;
enduring power of attorneymeans a power of attorney created under section 104 or recognised by the State Administrative Tribunal under section 104A(2).
103. Other Acts
(1) Nothing in this Part affects the operation of Part VIII of the Property Law Act 1969.
(2) Notwithstanding Part VI of the Transfer of Land Act 1893, an enduring power of attorney that is in force shall be effective for the purposes of that Act as if it were in the form provided for by section 143 of that Act.
104. Execution of enduring power of attorney
…
(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; and
(b) in which the donor of the power declares that the power either
(i) will continue in force notwithstanding his subsequent legal incapacity; or
(ii) will be in force only during any period when a declaration by the Board under section 106 that the donor does not have legal capacity is in force.
(a) there are 2 attesting witnesses to the instrument –
(i) both of whom are authorised by law to take declarations; [and]
…
(b) the instrument has endorsed on it, or annexed to it, a statement of acceptance in the form, or substantially in the form, of Form 2 in Schedule 3 executed by
(i) the person or persons appointed to be the donee of the power; and
(ii) where applicable, the person or persons appointed to be the substitute donee of the power.
(Emphasis added)
24. As explained in the decisions of the Tribunal in KS [2008] WASAT 29 and EW [2010] WASAT 91 (EW), the Tribunal exercises a supervisory jurisdiction under s 109(1)(a) and (b) of the GA Act. Those sections are to be understood in the context of s 107(1)(a) and (b) of the GA Act which state that:
The donee of an enduring power of attorney
(a) shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure; [and]
(b) shall keep and preserve accurate records and accounts of any dealings and transactions made under the power;
25 As the Tribunal said in the decision in EW at [94]:
An enduring power of attorney is an essentially private agreement between the donor and donee, and the transactions undertaken pursuant to that agreement should not be scrutinised unless there is reason to do so.
26 In EW, having found some assistance in cases concerning supervision of trustees and liquidators, which were referred to at [96][100] of the decision, the Tribunal said at [101] that the issues for determination in an application for orders under s 109(1)(a) and (b) are whether there is:
... something which requires an inquiry,…
and whether there is:
… a sufficient basis for making an order for an audit of the records and accounts kept by the [donee] of dealings and transactions made by [him or] her as attorney[.]
Is the POA an EPA for the purposes of the Guardianship and Administration Act 1990
20 Despite the references in the POA in the final clauses of the instrument to the GA Act, it is conceded by the applicant that the POA does not comply with the requirements of s 104(2)(b)of the GA Act that there be an acceptance endorsed on it, or annexed to it, in the form or substantially in the form prescribed in the Schedule.
21 The POA is therefore not an EPA for the purposes of the GA Act. As it is not an EPA as defined in s 102, it does not enliven the jurisdiction of the Tribunal pursuant to s 109 of the GA Act.
22 The EPA, executed on 1 March 2000 by the applicant, which appoints his brothers ME and EE jointly and severally, does on its face, comply with the requirements of the GA Act as to its form and witnessing requirements and is an EPA created under the GA Act, and therefore is an EPA which enlivens the jurisdiction of the Tribunal under s109.
23 The Tribunal finds that the Tribunal does have jurisdiction in respect of the EPA executed by the applicant on 1 March 2000.
The POA and the EPA
24 The POA created authority in the attorneys to act jointly. The powers to be exercised by the attorneys are enumerated in the document and identified in the Landgate registration.
25 The EPA on its terms was styled to be unrestricted as to the exercise of authority vested in the attorneys. By the execution of the EPA the attorneys could act jointly or severally and the power survives loss of capacity of the donor. The EPA did not otherwise increase the powers available to be exercised by the attorneys from that vested in them by the POA and so it can be concluded that the powers operated concurrently when the attorneys were acting jointly.
26 During the existence of both powers, the attorneys could act under either power in respect of the management of the affairs of the donor when they acted jointly. The transfer of land was effected by the POA, but it does not exclude the operation of the EPA in respect of the management of the applicants affairs during the period 1 March 2000 to the revocation of the EPA (and the POA) on 29 November 2004, including the receipt of the proceeds of sale of the properties in question. Both the POA and the EPA existed during the period of the sale of the properties of the applicant and the redemption of his contributions to his employer superannuation fund.
27 If ME acted severally, as contended by EE and which appears to be supported by the correspondence between RG and ME (which does not refer to EE), then it must have been pursuant to the EPA otherwise he could not act alone.
Is the application out of time?
28 Although it is conceded that there is nothing in the GA Act or the SAT Act which provides for a time period in which applications must be brought to the Tribunal, it is submitted for EE that the general law in Western Australia should apply in respect of the time in which the application may be made. It is argued that the application for the filing of records by the attorneys and the audit of the records is analogous to the passing of accounts an equitable claim.
29 It is submitted for EE that the application is statute barred. It is argued that the cause of action arose prior to November 2005 and the Limitation Act 1935 applies. Although it is said that the Limitation Act 1935 does not specify a limitation period for equitable claims that the Act has been adopted by the Court as a matter of procedure and that if the matter were in the Court an extension of time would be required.
30 The submission that the application under s 109 of the GA Act is analogous to the equitable action of passing of accounts is misconceived. Section 109 of the GA Act is a statutory application and involves no common law or equitable claim or action. In any event, the Limitation Act 1935 is a written law that can only operate according to its terms. Whether or not an application under s 109(1)(a) of the GA Act could be said to be analogous to an equitable cause of action, the Limitation Act 1935 only prevents commencement or continuation of proceedings if, by its terms, properly construed, it provides for one or both of these things to occur. Nothing in the Limitation Act 1935 has any effect in relation to any application under the GA Act, including a s 109(1)(a) application.
Is it otherwise unreasonable to exercise the discretion of the Tribunal to order that documents be filed
31 In submissions filed for EE, it is argued that it is unreasonable for the attorneys to maintain records for nearly 12 years.
32 According to the material filed, it appears that the applicant has executed (and revoked) at least three EPA's since the revocation of the EPA which appoints his brothers. The applicant is capable and following the revocation of the EPA, he instructed and had the assistance of an accountant (RG) who made enquiries on his behalf with the former attorneys and with other entities. The gap in time between the revocation of the EPA made in favour of the brothers and the application filed with the Tribunal has not been explained. It is accepted, however, that the applicant is a prisoner in custody and has been so for the intervening period and it is accepted that as such he has significant restrictions on his access to communication and advice and assistance.
33 It is the case that the attorneys accepted the obligations set out in s 107 of the GA Act to maintain records when they accepted their appointment under the EPA in 2000. The attorneys were on notice in 2004 that the records maintained by them were required by the applicant. There is conflict in the material filed to date, between ME's statement that all the documents and records of the applicant were produced to RG in 2004 and 2005 and the material filed which includes correspondence from RG which indicates that all documents requested had not been provided to him when the letter was written in 2008.
34 The applicant makes a number of allegations about the conduct of the attorneys, including that they acted to sell his property against his directions. Whether this is the case or not, the orders available under s 109(1)(a) of the GA Act do not provide a remedy for this conduct, if it occurred. As noted in KS the Tribunal can order the filing of records maintained by the attorneys for the period of the operation of the EPA, that is between 1 March 2000 and 29 November 2004, but that is the only remedy.
35 To exercise the discretion to require documents to be filed by the attorneys the Tribunal must be satisfied that there is sufficient in the material before it to warrant an inquiry (EW). In respect of the sale of the properties, the applicant (or his agent) could, and may have already, obtained records and there would consequently be no real case for the Tribunal to exercise its discretion in this regard since the records are readily obtainable. However, in respect of the deposit of the redeemed superannuation into the SMSF, the applicant has an ongoing interest in that investment. Although, as a beneficiary of the fund, he is entitled to information from the trustees as the donor of the EPA, which appears to have been used to redeem his superannuation from the employer Provident Fund and to invest it in the SMSF, he has an interest in that and related transactions.
36 Although not finally determined by the Tribunal prima facie on the documents produced to date, there is sufficient to warrant an enquiry into those transactions.
37 ME should be given an opportunity to clarify the position at a hearing of the Tribunal before the matter is finally decided.
38 The orders the Tribunal makes are therefore as follows:
1. The parties have until 24 March 2017 to provide any unavailable dates.
2. After 24 March 2017 the application will be listed for a final hearing.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER
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