Can the Tribunal Grant an Administrator the Power to Make a Binding Death Benefit Nomination (BDBN)?

As a guardianship lawyer in Western Australia, I often receive questions regarding the powers and functions of administrators.

One issue that arises is whether a tribunal has the power to grant an administrator the authority to make a binding death benefit nomination (BDBN).

In this blog post, I explore this question, drawing on the decision in SM [2019] WASAT 22 and relevant legislation.

Background:

In the SM case, an individual (SM) was injured in a motor vehicle accident and later received compensation of $5,745,933, held in trust by Australian Executor Trustees Limited (AET).

The tribunal appointed AET as the administrator of SM's estate with the sole function to pay a portion of the funds into superannuation for the benefit of SM.

AET sought an additional function to make and renew BDBNs for any superannuation fund of which SM was a member.

Relevant Legislation:

The Guardianship and Administration Act 1990 (WA) (the Act) governs the powers and functions of administrators. Section 69(2) of the Act permits an administrator to do only those things necessary for the performance of the functions invested in him or her.

Analysis:

The purpose of an administration order is for the conservation of a person's estate during their lifetime for their own advantage and benefit, but does not extend to the conservation and preservation of their estate after death, when the person has ceased to have any needs [89].

A BDBN is solely for the purpose of enabling transmission on a person's death of their superannuation benefit [90]. An administrator's authority ends upon a person's death [91], as does their duty and obligation to the person subject to the administration order.

In the SM case, the Tribunal found that making a BDBN is not for the purpose of carrying out an administrator's purpose, namely the conservation of the estate of a person under an administration order for their own advantage and benefit [92].

Consequently, the Tribunal concluded that it does not have the power to grant the additional function of making a BDBN to a limited or plenary administrator.

Conclusion:

• Based on the SM [2019] WASAT 22 decision and the Guardianship and Administration Act 1990 (WA), it appears that a tribunal does not have the power to grant an administrator the authority to make a BDBN.

• This is because the primary purpose of an administrator is to manage the person's estate during their lifetime, and their authority does not extend beyond the person's death.

Factors Relevant to Determining Whether a Person with a Mental Disability is Unable to Make Reasonable Judgments in Respect of Their Estate

When determining whether an individual with a mental disability is unable to make reasonable judgments in respect of matters relating to their estate, the Guardianship and Administration Act 1990 (WA) ("GA Act") sets out specific criteria that must be satisfied.

This blog post discusses these factors, drawing from the case Re RK [2021] WASAT 13, and examines how they can be applied in practice.

1. The Mental Disability Requirement

Section 64(1)(a) of the GA Act requires that a person be "unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate".

This means that the person must have a mental disability, and their inability to make reasonable judgments must arise because of that mental disability.

In Re RK, the Tribunal found that RK had a mental disability, and that this was the cause of his inability to make reasonable judgments in respect of his estate.

2. Subjective and Objective Tests

The application of Section 64(1)(a) involves both subjective and objective tests.

The subjective test requires assessing the person's ability to make reasonable judgments in relation to their actual estate.

The objective test, on the other hand, considers whether the person has the ability to engage in the mental reasoning required to make such judgments.

3. Factors Affecting a Person's Ability to Make Reasonable Judgments

A person's ability to make reasonable judgments in respect of their estate may depend on a variety of factors, such as their health and mental health.

Ultimately, an individual must have the intellectual ability necessary to make decisions related to their estate.

This includes the ability to:

- Understand the need for and sources of income

- Comprehend the value of income relative to expenditures

- Identify and calculate necessary expenditures for daily living and long-term financial objectives

- Devise a budget to live within their means

- Assess the financial implications of various decisions and contracts

- Organize their affairs to meet debts as they fall due

- Identify and implement problem-solving strategies for resolving unexpected financial issues

4. Estate Definition

In the context of the GA Act, a person's "estate" refers to the aggregate of their property, assets, and liabilities.

This encompasses the entirety of their real and personal property and all financial affairs.

5. Causation

The phrase "by reason of" in Section 64(1)(a) of the GA Act implies a relationship of cause and effect between a mental disability and a person's inability to make reasonable judgments in respect of their estate.

In Re RK, the Tribunal found that RK's mental disability was the cause of his inability to make reasonable judgments, although he was still able to make occasional decisions regarding simple discretionary expenditure.

Key take-away

• When assessing whether a person with a mental disability is unable to make reasonable judgments in respect of their estate, it is crucial to consider the relevant factors as set out in the GA Act and case law such as Re RK.

Striking the Balance: Defamation and Multiple Meanings in Court

Defamation law exists to protect individuals from false statements that harm their reputation, while also respecting freedom of expression.

A key challenge for courts when handling defamation cases is determining the meaning of allegedly defamatory statements. This is particularly difficult when a statement is capable of conveying multiple meanings.

In this blog post, I explore the approach courts take in such situations, drawing on the case of Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47 and other relevant case law.

Finding the Meaning

In Duma, the respondents argued that the court should find "an approximate centre-point in the range of possible meanings" or the single meaning that is "the (or a) dominant one" when determining the meaning of a potentially defamatory statement.

This approach, they argued, would protect the balance between freedom of expression and protection of reputation by shifting "the preferred meaning to the middle ground" (Duma, [51]).

However, the court rejected this argument, stating that it confuses the characteristics of the reasonable reader with the approach to determining meaning.

Instead, the court emphasized that its task is to determine "the single meaning" of the allegedly defamatory material (Duma, [52]).

The Reasonable Reader and Determining Meaning

The court in Duma highlighted the distinction between the characteristics of the hypothetical reasonable reader and the meaning of the words in question. While the reasonable reader is described as a person "who does not, and should not, select one bad meaning where other non-defamatory meanings are available" (Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]), this does not equate to a prescription for how the court should attribute meanings to potentially defamatory words (Duma, [53]).

In Rufus v Elliott [2015] EWCA Civ 121, Sharp LJ clarified that the court is not required to select a non-defamatory meaning simply because it is available. Instead, the touchstone remains what the ordinary reasonable reader would consider the words to mean (Duma, [54]).

This approach was endorsed by the Supreme Court of the United Kingdom in Stocker v Stocker [2020] AC 593. Lord Kerr stated that the court is not obliged to select a non-defamatory meaning among a range of meanings simply because it is possible to do so. The ordinary reasonable reader's understanding remains the central consideration (Duma, [54]).

The Australian Approach

The law in Australia is consistent with the reasoning in Rufus and Stocker. In cases such as Armstrong v McIntosh (No 4) [2020] WASC 31, Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68, and Bazzi v Dutton [2022] FCAFC 84, Australian courts have similarly rejected the idea that they must select a non-defamatory meaning where one is available.

The focus remains on the ordinary reasonable person's understanding (Duma, [55]).

Key take-aways

• In defamation cases where multiple meanings are possible, courts must determine the single meaning of the allegedly defamatory material.

• The ordinary reasonable reader's understanding serves as the touchstone for this determination. Courts are not required to select a non-defamatory meaning simply because it is available.

• By focusing on the ordinary reasonable reader, courts can strike a balance between freedom of expression and protection of reputation in defamation cases.

Default Judgments in Defamation Cases: Insights from the Federal Court of Australia

A recent case, Musicki v De Tonnerre [2023] FCA 222, provides insight on the topic of how the Federal Court of Australia deals with defamation cases that are not defended.

This blog post discusses the key points from the case and the principles that guide the court's decision-making process in defamation cases involving default judgments.

Background

In Musicki v De Tonnerre, the applicant sought judgment in her favour due to the respondent's failure to appear or file a defence as ordered by the court.

The case involved a defamatory Google review about the applicant's surgical practice, which was later revealed to be posted by a former medical student of the applicant.

The respondent was found to be in default and the court decided to give judgment in favour of the applicant, limited to the defamation action.

Relevant Principles

The Federal Court Rules 2011 (Cth) outline the circumstances in which a party is considered to be in default and the potential orders that the court can make in such situations.

The court's power to give summary judgment against a defaulting party is discretionary and should be exercised cautiously.

In Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606, the court outlined the principles to be followed when considering default judgments. The court must be satisfied that the applicant is entitled to the relief claimed in the statement of claim. This requirement means that the court must be satisfied that "on the face of the statement of claim" the applicant is entitled to the relief sought.

Applying the Principles

In Musicki v De Tonnerre, the court found the respondent to be in default due to their failure to file a notice of address for service, a defence in accordance with the Federal Court Rules, and a defence in compliance with the court's orders.

The court determined that there was no basis to assume the respondent's non-compliance was accidental or justifiable.

The court then considered whether the applicant had proven her defamation claim.

It was satisfied that the respondent had published the defamatory Google review and that it contained the imputations pleaded by the applicant.

The court also found that the applicant had suffered damage to her reputation.

Key take-aways

• Musicki v De Tonnerre demonstrates the Federal Court of Australia's approach to default judgments in defamation cases.

• The court exercises its discretion cautiously and carefully considers whether the applicant has proven their claim.

• In cases where a respondent is found to be in default, the court may grant judgment in favour of the applicant, as demonstrated in this case.

A Closer Look at Section 40 of the Defamation Act 2005 (WA): Costs in Defamation Cases

In this blog post, I examine Section 40 of the Defamation Act 2005 (WA), which deals with the awarding of costs in defamation cases in Western Australia.

I discuss the specific provisions of Section 40 and illustrate how it interacts with general costs principles, as highlighted in the decision of Rayney v Reynolds [No 4] [2022] WASC 360 (S).

Section 40 of the Defamation Act 2005 (WA)

Section 40 of the Defamation Act 2005 (WA) outlines the considerations for courts when awarding costs in defamation proceedings.

It consists of 3 subsections:

1. Subsection (1) requires the court to consider:

(a) the way in which the parties conducted their cases, including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings; and

(b) any other matters that the court considers relevant.

2. Subsection (2) states that, unless the interests of justice require otherwise:

(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff, the court must order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.

3. Subsection (3) defines "settlement offer" as any offer to settle the proceedings made before the proceedings are determined, including an offer to make amends (whether made before or after the proceedings are commenced) that was a reasonable offer at the time it was made.

This section is meant to promote a "speedy and non-litigious method of resolving disputes and to avoid protracted litigation wherever possible" as identified by McClellan CJ at CL in Davis, which was later cited in Jensen v Nationwide News Pty Ltd [No 13].

Interaction with General Costs Principles

Section 40 operates alongside general costs principles found in s 37 of the Supreme Court Act 1935 (WA), which provides the court with a wide discretion when making orders for costs in proceedings.

This discretion must be exercised judicially and in accordance with established principles to achieve a fair and just outcome for the parties.

While the general rule is that costs should follow the event (meaning the successful party should recover their costs from the opposing party), s 40 of the Defamation Act provides specific guidance for defamation cases, thereby taking priority over the general rules.

Reasonableness of Settlement Offers

As per Section 40(2)(a) of the Defamation Act, the court must assess whether a defendant unreasonably failed to make or agree to a settlement offer proposed by the plaintiff. To determine the reasonableness of a settlement offer, courts may consider factors such as:

1. Whether the offer was a reasonable one at the time it was made.

2. The reasonable predictions about the plaintiff’s prospects of success and quantum.

3. The avoidance of hindsight bias in relation to liability or quantum.

4. Whether the offer reflected a reasonable and realistic assessment of the plaintiff’s prospects of success on liability and the probable quantum of an award in the event of success (Wagner v Nine Network Australia Pty Ltd (No 2)).

Furthermore, the principles of Calderbank v Calderbank may also apply to the assessment of the reasonableness of an offer.

Factors to consider include the stage of the proceeding at which the offer was received, the time allowed to the offeree to consider the offer, the extent of the compromise offered, the offeree’s prospects of success (assessed as at the date of the offer), the clarity with which the terms of the offer were expressed, and whether the offer foreshadowed an application for indemnity costs in the event that the offeree rejected it.

Rayney v Reynolds [No 4] [2022] WASC 360 (S)

In the case of Rayney v Reynolds [No 4] [2022] WASC 360 (S), the Western Australian Supreme Court considered the issue of costs in a defamation proceeding. The court applied Section 40 of the Defamation Act 2005 (WA) and the general costs principles outlined in s 37 of the Supreme Court Act 1935 (WA) to determine the appropriate costs order to be made.

In this case, the plaintiff, Rayney, was successful in his defamation claim and sought an order for costs to be assessed on an indemnity basis. The court, applying the provisions of Section 40(2) of the Defamation Act, was required to consider whether the defendant, Reynolds, unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.

In doing so, the court examined the reasonableness of the settlement offer relied upon by the plaintiff, which was dated 14 February 2019, and assessed it in accordance with the principles of Calderbank v Calderbank. The court took into account several factors, such as the stage of the proceeding at which the offer was received, the time allowed to the offeree to consider the offer, the extent of the compromise offered, and the offeree's prospects of success, as assessed at the date of the offer.

Ultimately, the court found that the defendant had unreasonably failed to make a settlement offer or agree to the plaintiff's settlement offer. As a result, the court ordered that the costs of the proceedings be assessed on an indemnity basis, in accordance with Section 40(2)(a) of the Defamation Act 2005 (WA). This decision demonstrates the importance of parties in defamation cases taking a reasonable approach to settlement negotiations, as an unreasonable refusal to engage in settlement discussions can lead to significant financial consequences in the form of indemnity costs orders.

Key take-aways

• Section 40 of the Defamation Act 2005 (WA) plays a crucial role in guiding the awarding of costs in defamation cases in Western Australia.

• By considering factors such as the conduct of the parties, the reasonableness of settlement offers, and the interests of justice, the court aims to achieve a fair and just outcome for all parties involved.

• This section is specifically tailored to defamation proceedings and takes priority over general costs principles found in the Supreme Court Act 1935 (WA).

Malice and the Defence of Qualified Privilege in Defamation Law

Defamation law is a complex area, and one aspect that is particularly challenging is the concept of malice in the context of the defence of qualified privilege.

In a recent case, Kalil v Eppinga [2023] NSWDC 107, the court considered the principles of malice in relation to qualified privilege.

This blog post provides a general overview of malice in defamation law, drawing on the principles discussed in the case.

Principles of Malice

Malice involves the maker of the imputation being actuated by an improper purpose or motive; that is to say one that is foreign to the duty or interest that protects the making of the statement (Roberts v Bass (2002) 212 CLR 1, per Gaudron, McHugh and Gummow JJ at [75]).

The applicable principles can be summarized as follows:

1. To prove malice, the party alleging it must establish that the publication was actuated by malice, and that the improper motive was the dominant reason for the publication (Roberts v Bass at [75]–[76], [104]).

2. Proof of knowledge of falsity by the publisher is almost invariably conclusive proof of malice, as is proof of sheer recklessness amounting to wilful blindness (Roberts v Bass at [77], [84]).

3. Mere proof of ill-will, prejudice, bias, recklessness, lack of belief in truth, or improper motive is not sufficient to establish malice (Roberts v Bass at [76]). Mere lack of belief is not to be treated as equivalent to knowledge of falsity (Roberts v Bass at [87]).

4. Honesty of purpose is presumed in favour of a defendant, and it is for the plaintiff to prove that the defendant did not use the occasion honestly (Roberts v Bass at [96]). The plaintiff has the onus of proving that the defendant acted dishonestly (Roberts v Bass at [97]).

In KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden 101 NSWLR 729, the court provided further guidance on malice in the context of qualified privilege, emphasizing that a plaintiff has a heavy onus to discharge to establish malice and that malice is a serious matter (KSMC Holdings at [59]–[61]).

Case Analysis: Kalil v Eppinga

In Kalil v Eppinga, the court considered whether the plaintiff, Dr. Kalil, acted with malice when he made allegations against the defendant, Ms. Eppinga. The court found that Dr. Kalil did not give evidence, but his honesty of purpose was presumed, and it was for Ms. Eppinga to establish malice (Kalil v Eppinga at [37], [38]).

The court examined evidence of Dr. Kalil's state of mind, including a witness statement given to the police, where he stated that he saw Ms. Eppinga holding medication and thought she was about to steal it (Kalil v Eppinga at [40]). The court found that Dr. Kalil's allegation of attempted theft was neither knowingly false nor the view of someone who was wilfully blind (Kalil v Eppinga at [41]).

The court also considered the evidence of Ms. Eather, Dr. Kalil's veterinary nurse, who supported the conclusion that Dr. Kalil had a basis to believe that Ms. Eppinga was attempting to steal the medication (Kalil v Eppinga at [43]). The court ultimately concluded that Ms. Eppinga had not discharged her heavy on us to establish malice to the required Briginshaw v Briginshaw standard (Kalil v Eppinga at [47]).

The court also examined the conflict in evidence between Ms. Eppinga and Ms. Eather on the "Central Issue" of whether Ms. Eppinga was holding medication and attempting to steal it. While Ms. Eppinga denied the allegations, Ms. Eather's testimony supported Dr. Kalil's claims (Kalil v Eppinga at [49]-[52]).

Additionally, the court considered "Sub Issues" related to the dispute between the two accounts, including whether Ms. Eppinga yelled racial abuse at Dr. Kalil as she left the Hospital and whether Dr. Kalil touched Ms. Eppinga as she left the Hospital (Kalil v Eppinga at [52]-[53]). The court's evaluation of these conflicting accounts played a role in determining the credibility of the witnesses and the issue of malice.

Key take-aways

• The case of Kalil v Eppinga provides valuable insights into the principles of malice in the context of qualified privilege in defamation law.

• Establishing malice is a serious matter, and the party alleging malice must prove that an improper motive existed and that it was the dominant reason for the publication.

• Honesty of purpose is presumed in favour of a defendant, and the plaintiff has the burden to prove that the defendant acted dishonestly.

Understanding Common Law Qualified Privilege: An overview from Palmer v McGowan

Defamation lawyers frequently encounter the defence of common law qualified privilege.

This blog post provides an overview of the defence, drawing on the case of Palmer v McGowan (No 5) [2022] FCA 893, and other relevant authorities.

The Starting Point: Toogood v Spyring

The origins of the common law defense of qualified privilege can be traced back to the foundational case of Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044 (at 1049-1050).

In general, the law assumes that the publication of false and harmful statements is malicious.

However, if an individual makes a statement in good faith while fulfilling a public or private duty, or while managing their affairs in which they have an interest, the circumstances may prevent the assumption of malice and offer a qualified defense.

Reciprocity of Duty and Interest

Reciprocity of duty and interest is the hallmark of the common law defence, as highlighted in Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298 (at 305 [11] per French CJ, Crennan and Kiefel JJ).

To succeed in this defence, a publisher must be under a legal or moral duty to disclose the information, or the disclosure must be necessary in the furtherance or protection of legitimate interests of the publisher.

Reciprocally, the interest of the recipient in having information on the subject matter must be of a tangible nature that it is expedient to protect it for the common convenience and welfare of society.

Applicability of the Defence to Large Audiences

The requirement of reciprocity generally precludes the applicability of the defence to large audiences, such as those reached by mass media publications.

As held in Lange, at common law, a claim of qualified privilege will generally fail where a publication is made to a large audience because the publisher cannot establish that it was using the occasion honestly and without malice for the purpose of publishing the defamatory matter to all of the recipients.

Conditions for a Successful Defence

A successful defence of qualified privilege at common law depends upon satisfaction of three conditions, as stated by Heydon J in Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79 (at 96–97 [55]):

1. The communication was published on a privileged occasion.

2. The communication was related to the occasion.

3. There was no malice in the publication.

Applying these principles, it is often difficult to establish a privileged occasion when the publications are made to a wide audience, such as in the case of Palmer v McGowan.

Key take-aways

• In summary, the defence of common law qualified privilege is a complex and nuanced area of defamation law.

• The requirement of reciprocity of duty and interest, as well as the applicability of the defence to large audiences, are key factors to consider when evaluating the prospects of successfully invoking this defence.

Cases mentioned in this blog post:

• Palmer v McGowan (No 5) [2022] FCA 893

• Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79

• Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298

• Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

• Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044

Understanding Sterilisation Procedures and Best Interests in Guardianship Matters

Sterilisation is a significant and often irreversible medical procedure that can have life-altering consequences for the person involved.

In guardianship matters, it is crucial to ensure that any decision to authorise a sterilisation procedure is made in the best interests of the person concerned.

In this blog post, I examine the factors that are relevant in determining whether a sterilisation procedure is in a person's best interests, with reference to the Western Australian case of EW v CD [2021] WASAT 111 and the Guardianship and Administration Act 1990 (WA) (the GA Act).

Statutory Framework

The GA Act governs the authority of guardians in relation to medical treatment for represented persons, including sterilisation procedures (s 13).

Guardians may be authorised to make decisions on behalf of a represented person regarding medical treatment, but the GA Act specifically prohibits a guardian from consenting to the sterilisation of a represented person except in accordance with Division 3 of Part 5 of the Act (s 13).

Importantly, the GA Act does not define the term "sterilisation" but does provide a definition for "procedure for the sterilisation" (s 15).

The GA Act strictly regulates the circumstances in which the sterilisation of a represented person may take place, including requiring the consent of both the guardian and the Tribunal, and ensuring that all rights of appeal have been exhausted (s 17).

Best Interests

The key consideration in determining whether a sterilisation procedure is appropriate is whether it is in the person's best interests (s 22).

The GA Act does not provide a specific definition of "best interests", but s 51(2) offers guidance on how a guardian should act in the best interests of a represented person, including considerations such as community participation, self-care, protection from neglect or abuse, and the maintenance of supportive relationships and cultural environments.

In the case of EW v CD [2021] WASAT 111, the Tribunal considered the principles set out in Re Jane, which identified nine factors relevant to determining whether a sterilisation procedure was in the best interests of a person (para 25).

These factors include:

1. The possibility of the person becoming pregnant;

2. The potential for trauma or psychological damage from pregnancy or sterilisation;

3. The likelihood of voluntary sexual activity or rape;

4. The person's ability to understand reproduction or contraception and the likely permanence of that inability;

5. The feasibility of less drastic means of contraception;

6. The advisability of sterilisation at the time of the application rather than in the future;

7. The person's ability to care for a child;

8. The potential for medical or scientific advances that may improve the person's condition or offer less drastic sterilisation procedures; and

9. Evidence that the proponents of sterilisation are genuinely seeking the best interests of the person, rather than their own or the public's convenience.

Key take-aways

• In guardianship matters, the decision to authorise a sterilisation procedure must always be made with the best interests of the person in mind.

• A careful and thorough consideration of the relevant factors outlined in Re Jane, as well as the specific circumstances of the individual case, is crucial in determining whether a sterilisation procedure is in a person's best interests.

• Guardians should always be mindful of these factors and the strict regulatory requirements under the GA Act when considering sterilisation procedures for represented persons.

Understanding Breaches of Undertakings in Guardianship Matters

In guardianship matters, undertakings are solemn promises made to the court or tribunal that can have serious consequences if breached.

A recent decision in Western Australia highlights the importance of understanding the implications of such undertakings and the potential consequences for parties involved in these matters.

In this blog post, I discuss the significance of undertakings, particularly in guardianship matters, and provide insights into the consequences of breaching them.

The Importance of Undertakings in Guardianship Matters

Undertakings play a crucial role in legal proceedings, particularly in guardianship matters.

They serve as a means to ensure that parties act in the best interests of the person under guardianship and comply with the directions of the court or tribunal.

When an undertaking is given, it is expected that the party providing it fully understands the gravity of their commitment and the possible consequences of breaching it.

Breaching Undertakings and Contempt of Court

In the case of Dc [2021] WASAT 130, it was held that the conduct of both the father and the son was capable of constituting contempt of the Supreme Court.

This decision was based on the fact that the father had given an undertaking not to sell or otherwise deal with a particular property, and yet, he permitted the transfer of the property to his son, effectively breaching the undertaking (Dc [2021] WASAT 130, [26]-[28]).

Furthermore, the son was found to have aided and abetted his father's breach of the undertaking, which in itself constituted contempt (Dc [2021] WASAT 130, [29]-[35]).

It is essential to understand that aiding and abetting a contempt constitutes a contempt in its own right, regardless of whether the individual was directly bound by the injunction or undertaking (Seaward v Paterson, cited in Dc [2021] WASAT 130, [30]-[31]).

In this case, the Tribunal was satisfied on the balance of probabilities that the conduct of both the father and the son was capable of constituting contempt of the Supreme Court (Dc [2021] WASAT 130, [26], [29]).

Consequently, the Tribunal reported the alleged contempts to the Supreme Court for further action (Dc [2021] WASAT 130, [38]).

Key Takeaways

• The decision in Dc [2021] WASAT 130 serves as a reminder that undertakings given in guardianship matters are not to be taken lightly.

• Breaching an undertaking can have severe consequences, including being held in contempt of court. It is crucial for all parties involved in a guardianship matter to understand the undertakings they provide and their obligations under the relevant legislation, such as the State Administrative Tribunal Act 2004 (WA).

If you have any concerns or questions about your obligations in a guardianship matter, it is advisable to seek professional legal advice from a qualified guardianship lawyer.

I can guide you through the process and help you navigate the complexities of guardianship law to ensure that you fulfil your legal obligations and act in the best interests of the person under guardianship.

You can contact me here.

Rebutting the Presumption of Capacity in Guardianship Matters

As a guardianship lawyer in Western Australia, I often receive questions about the concept of capacity and the process of proving that an individual lacks decision-making capacity in guardianship and administration matters.

In this blog post, I will explore the statutory presumption of capacity, and what is necessary to rebut this presumption in light of the decision in MH [2022] WASAT 74.

Statutory Presumption of Capacity

The Guardianship and Administration Act (the GA Act) establishes a fundamental principle: the statutory presumption of capacity.

This presumption serves to protect individuals who are the subject of proceedings under the GA Act from having their decision-making capacity removed and a substitute decision-maker appointed for them without clear and cogent evidence.

As stated in MH [2022] WASAT 74 at [130], the statutory presumption of capacity is the starting point in any application under the GA Act where the decision-making capacity of a person is in issue.

It is important to note that a person who is the subject of an application for guardianship or administration orders does not need to prove that they have decision-making capacity.

The Tribunal starts from the position that the person has capacity (by virtue of the statutory presumption).

Rebutting the Presumption of Capacity

In order to rebut the statutory presumption of capacity, clear and cogent evidence is required (MH [2022] WASAT 74 at [131]).

The evidence must be sufficient to satisfy the Tribunal that the person lacks the relevant decision-making capacity.

The standard of proof applied by the Tribunal is the civil standard (balance of probabilities).

However, due to the significant consequences of a finding that a person does not have decision-making capacity, clear and cogent evidence is required to establish the facts on which that conclusion depends.

In the case of MH [2022] WASAT 74, the Tribunal found at [132] that the medical evidence, together with the evidence of other witnesses, was sufficient to displace the presumption in the GA Act that Mrs MH was capable of looking after her own health and safety and making reasonable judgments in respect of matters relating to her person.

Consequently, the Tribunal found that Mrs MH was incapable of looking after her own health and safety and unable to make reasonable judgments in respect of matters relating to her person (at [133]).

This finding led the Tribunal to conclude that Mrs MH was in need of oversight, care, or control in the interests of her own health and safety (at [134]).

Key take-aways

• The statutory presumption of capacity is a fundamental principle under the GA Act, and serves to protect individuals from having their decision-making capacity removed without sufficient evidence.

• To rebut this presumption, clear and cogent evidence must be provided to satisfy the Tribunal that the person lacks decision-making capacity.

• The decision in MH [2022] WASAT 74 serves as a useful illustration of how this process works in practice. I

• If you have any questions or concerns about capacity and guardianship matters, please do not hesitate to contact me.