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[2009] WASAT 253
State Administrative Tribunal (WA)
2009-12-22
Judge J
Original judgment source is linked above.
I certify that this and the preceding [137] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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G v K [2007] WASC 319
Guardianship and Administration Tribunal v Perpetual Trustees Queensland Limited [2008] QSC 49
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
2 April 2007 Perpetual Trustees pays [BC legal's] account of $1,455.30 dated 13 March 2007 for '[K] and [the represented person]' 'Agency Matter'). Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of final legal fees for work done in representing [the represented person] and [K] in proceedings issued by [M] in Local Court at [NSW] re damages claim for detained property'.
4 April 2007 Perpetual Trustees pays [BC legal's] account of $653.40 dated 13 March 2007 for 'Agency [M]. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of legal fees for work done in representing [the represented person] and [K] before the Local Court [NSW] to determine guardianship for [the represented person] and subsequently determined by the State Administrative Tribunal'.
Perpetual Trustees pays [S lawyers'] account of $1,218.80 (dated 22 September 2006), for 'Children's Matters'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of legal fees for work done in representing [the represented person] and [K] before the Local Court [NSW] to determine guardianship of [the represented person] and subsequently settled by the State Administrative Tribunal'.
12 April 2007 Perpetual Trustees pays $650.00 and records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as '[M] remittance being payment directed under Order by Local Court at [NSW] in matter re damages claim for detained property and defended by [the represented person] and [K].'
8 May 2007 By letter, the Public Trustee asks Perpetual Trustees for a breakdown of one of [S lawyers'] bills.
10 May 2007 The Tribunal delivers reasons for decision in the guardianship application (TJC [2007] WASAT 105).
14 May 2007 By letter, Perpetual Trustees responds to the Public Trustee's query of 8 May.
29 May 2007 Perpetual Trustees pays [S lawyers'] account of $815.45 dated 22 May 2007 with respect to 'Civil Action by [M)' and 'VRO - [M]'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of final legal fees for work done in representing [the represented person] and [K] in proceedings issued by [M] in Local Court at [NSW] re matter of detained goods and issue of VRO'.
Perpetual Trustees pays [S lawyers'] account of $1,331.69 dated 22 May 2007 with respect to '[K] Children's matter' and '[the represented person]'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of further legal fees for work done in representing [the represented person] and [K] before the Local Court at [NSW] to determine guardianship for [the represented person] and subsequently settled by the Sate [sic] Administrative Tribunal for the period September 2006 to April 2007'.
Perpetual argues that although s. 37 is silent on the question of retrospective authorisation, to limit its operation to prospective authorisation would be to impose a fetter which is not found in the words of the provision. Perpetual submits that, unlike the interpretation given to the word 'only' where it occurred in s. 459G(2) of the Corporations Law in David Grant & Co. Pty Ltd v. Westpac Banking Corporation [1995] HCA 43; (1995) 184 C.L.R. 265, 276-277 (David Grant), the word 'only' in s. 37 of the [Qld GA Act] indicates that the authorisation of the Tribunal is mandatory and not that the authorisation must precede the conflict transaction.
Perpetual Trustees pays [BC legal's] account of $108.90 dated 15 May 2007 for 'Agency [M]'. Perpetual Trustees records this (in its portfolio statement .for the period 17 March 2007 to 16 March 2008) as 'payment of further legal fees for work done in representing [the represented person] and [K] in Local Court at [NSW] re damages claimed for detained property'.
By letter, the Public Trustee asks Perpetual Trustees, amongst other things, whether it was satisfied that the legal expenses paid from [the represented person's] estate (in the period 17 March 2006 to 16 March 2007) did not require the Tribunal's authorisation.
7 June 2007 By letter, Perpetual Trustees replies, stating that, amongst other things, that [sic] it was 'satisfied that the payment of the legal fees [in the period 17 March 2006 to 16 March 2007] were in the best interests of [the represented person]' and that it was 'of a further belief that [its] authority for all the abovementioned payments [was] contained in numerous sections of the Guardianship and Administration Act 1990.' 'However, should you feel that this is not so, we respectfully request that you retrospectively approve of our actions, reiterating that they were in the best interests of [the represented person]. We also seek your approval to meet any future legal costs for a similar nature, should such matters arise'.
27 June 2007 Perpetual Trustees pays [S lawyers'] account of $3,016.68 dated 22 June 2007 (which has an itemised account dated 19 June 2007) with respect to 'State Administrative Tribunal Matter'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of legal fees for work done in representing [the represented person] and [K] in the matter of Appeal to the Supreme Court by [G] in respect of guardianship for [the represented person].
Perpetual Trustees receives reimbursement from [S lawyers] of $1,239.35. Perpetual Trustees had paid this twice: once directly to Steven G Cohen clinical psychologist on 2 March 2007, and once to [S lawyers] on 7 March 2007 as part of their account of 2 March 2007.
4 July 2007 By letter, the Public Trustee requests Perpetual Trustees to apply to the Tribunal for authorisation for the payments made to [S lawyers]. [At the time, the Public Trustee was only looking at the payments made in the period 17 March 2006 to 16 March 2007.]
6 August 2007 The Public Trustee writes a reminder letter to Perpetual Trustees.
13 August 2007 By e-mail, Perpetual Trustees says that an application to the Tribunal is being prepared.
12 September 2007 The Public Trustee writes a second reminder letter to Perpetual Trustees.
18 September 2007 By e-mail, Perpetual Trustees says that an application to the Tribunal is being prepared.
20 September 2007 G's application to the Supreme Court for leave to appeal the decision of the Tribunal is heard. The Court reserves its decision.
10 October 2007 The Public Trustee writes a third reminder letter to Perpetual Trustees.
15 October 2007 By e-mail, Perpetual Trustees says that an application to the Tribunal is being prepared.
Perpetual Trustees pays [S lawyers'] account of $4,110.05 dated 27 September 2007 with respect to 'Appeal of State Administrative Tribunal Determination - [the represented person]'. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of further legal fees for work done in representing [the represented person] and [K] in the matter of Leave to Appeal and Appeal to the Supreme Court by [G] in respect of guardianship for [the represented person]'.
Perpetual Trustees pays Wendy Buckley of counsel's account of $7,927.00 dated 24 September 2007, for the application for leave to appeal in [the represented person's] matter. Perpetual Trustees records this (in its portfolio statement for the period 17 March 2007 to 16 March 2008) as 'payment of Counsel's fees for work done in representing [the represented person] and [K] in the matter of Leave to Appeal and Appeal to the Supreme Court by [G] in respect of guardianship for [the represented person]'.
4 December 2007 By letter, the Public Trustee advises Perpetual Trustees, amongst other things, that a Certificate of Loss had been drawn up.
21 December 2007 The Supreme Court delivers its decision ('G' v 'K' [2007] WASC 319). It grants leave to appeal the decision of the Tribunal, allows the appeal and remits the decision to the Tribunal for redetermination. The Court does not make any orders as to costs. One of the orders, however, is: 'There be liberty to apply.'
2 January 2008 The Public Trustee officially issues and forwards the Certificate of Loss to Perpetual Trustees in the amount of $29,352.88. [Although not stated in the certificate, this figure consists of the following payments to [S lawyers]:
- $4,624.10 on 26 September 2006;
- $10,992.40 on 2 January 2007; and
- $13,736.38 on 7 March 2007.
This figure does not include any of the following payments:
- the consultancy fees of [LRB] of $845.00 paid on 7 December 2006;
- [S lawyers'] accounts of $817.30 and $865.75 (a total of $1,683.05) paid on 21 February 2007;
- [BC legal's] account of $2,195.60 paid on 21 February 2007;
- [DW's] travelling expenses of $150.00 paid into trust on 21 February 2007; and
- the counsel fees of Steven Jones of $5,665.00 paid on 7 March 2007.
3 January 2008 Wendy Buckley of Counsel renders an account for $660.00 for taking judgment in the Supreme Court appeal. Perpetual Trustees are to confirm whether this was paid and, if so, when.
14 March 2008 The Tribunal orders, amongst other things, that:
- the guardianship application be adjourned to a further directions hearing on 11 April 2008;
- the Public Advocate is appointed as [the represented person's] litigation guardian; and
- Perpetual Trustees pays the costs of a solicitor up to $5,000, and to seek further directions if it appears that those costs will exceed $5,000.
29 June 2005 to
16 March 2008 Perpetual Trustees collects a total of $156,198.31 in professional fees (including a $30,000.00 establishment fee).
2 April 2008 Pursuant to section 80 of the Guardianship and Administration Act 1990, Perpetual Trustees submits to the Public Trustee:
- Account No 3; and
- portfolio statement,
for the period 17 March 2007 to 16 March 2008.