Understanding the Hore-Lacey Defence in Defamation Law

Defamation law plays a critical role in protecting reputations and providing recourse for individuals who have been wronged through false statements.

One of the key defences in defamation law is the Hore-Lacey defence, which has its origins in the case of David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667.

In this blog post, I explore the Hore-Lacey defence and how it has evolved over time, by examining its application in various cases.

The Hore-Lacey Defence Explained

The Hore-Lacey defence is based on the principle that a defendant can assert a differently nuanced meaning or imputation from that asserted by the plaintiff, as long as it does not differ in substance (whether more or less injurious or serious in its defamatory character) (Hore‐Lacy 1 VR at 689 [63], Charles JA).]

This defence allows a defendant to plead the truth of an imputation that is less injurious and not substantively different from the one pleaded in the statement of claim, as a complete defence to the plaintiff's claim (Moodie 28 WAR at 320 [19]–[20] per Anderson J, 328 [58] per Stetlyer J at 335–336 [94] and per McLure J at [59]).

Key Cases and Developments

In Wing v The Australian Broadcasting Corporation [2018] FCA 1340, the respondents argued that their defence of justification based on the variant imputations constituted a good Hore-Lacy defence. They cited West Australian Newspapers Ltd v Elliot (2008) 37 WAR 387, Hyams v Peterson [1991] 3 NZLR 648, and Lewis v Daily Telegraph Ltd [1964] AC 234 as authorities that supported their position. The court ultimately held that the Hore-Lacy defence applied in this case.

Another important case is Polly Peck (Holdings) Ltd v Trelford [1986] QB 1000, which Hore-Lacy 1 VR 667 expressly departed from. In Hore-Lacy, the court required the defendant to plead the specific imputation that it alleged the matter complained of conveyed, so that neither party could raise a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff at trial (1 VR at 689 [63], Charles JA).

Furthermore, the case of Mickelberg v Hay [2006] WASC 285 discussed the way in which the Full Court of the Supreme Court of Western Australia in Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 had dealt with Polly Peck [1986] QB 1000 and Hore‐Lacy 1 VR 667. The court in Moodie adopted a different test by allowing the defendant to plead the truth of an imputation of a lesser degree of seriousness as a complete defence to the plaintiff's claim.

Extending the Limitation Period for Defamation Actions: Key Considerations

Defamation law exists to protect individuals from false statements that may damage their reputation.

In Australia, there are strict time limits within which defamation actions must be commenced. However, in certain cases, the court may grant an extension of this limitation period.

This blog post discusses the factors that courts consider when deciding whether to extend the limitation period for defamation actions, with reference to the decision in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 and other relevant cases.

General Principles

Section 56A of the earlier and relevant version of the NSW Limitation Act outlines the circumstances in which a court may extend the limitation period for defamation actions. The court must be satisfied that it was not reasonable for the plaintiff to have commenced the action within one year from the date of the publication, and may extend the limitation period up to a maximum of three years from the date of publication.

As explained in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 and Paule v McKay (No 2) [2022] ACTSC 190, the court engages in an evaluative analysis to determine whether it was not reasonable for the plaintiff to have commenced the action within the one-year period. This analysis is based on objective factors and the individual circumstances of each case.

Factors Considered by the Court

In determining whether it was not reasonable for the plaintiff to have commenced the action within the one-year period, the court may consider factors such as:

1. The plaintiff's contemporary, subjective views and reasoning: The court will examine the plaintiff's actual reasons for not commencing the action within the one-year period, as explained in Carey v Australian Broadcasting Corporation [2010] NSWSC 709.

2. Changing circumstances during the limitation period: The court must consider any changes in the plaintiff's situation during the limitation period and how these changes may have impacted the reasonableness of commencing the action.

3. The "ordinary" position when criminal allegations are made: As noted in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, the court must evaluate the plaintiff's situation in light of any related criminal allegations and the potential impact on the defamation action.

4. The discretion conferred by s 56A(2) of the Limitation Act: The court has the discretion to extend the limitation period if it is satisfied that it was not reasonable for the plaintiff to have commenced the action within the one-year period.

Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385

In Lehrmann, the court identified several key factors that influenced its decision to extend the limitation period for the defamation action. These factors included:

1. The plaintiff receiving express advice to defer any defamation proceedings and relying on that advice.

2. The possibility of prosecution being a real concern for the plaintiff, leading him to prioritize the criminal allegations over the defamation action.

3. The potential prejudice to the plaintiff's defense in the criminal case if he pursued the defamation action simultaneously.

4. The plaintiff's efforts to engage with the Australian Federal Police (AFP) in an attempt to avoid prosecution, which aligned with his broader defense strategy.

5. The unique and compelling circumstances of the case, including the high-profile nature of the criminal allegations and the plaintiff's need to direct his resources and energies towards his defense.

Key Take-Aways

• When determining whether to extend the limitation period for a defamation action, courts consider a range of factors that may render it not reasonable for the plaintiff to have commenced the action within the one-year period.

• Ultimately, the court's decision will depend on the individual circumstances of each case, as well as an objective evaluation of the relevant factors.

• In light of the cases discussed, it is clear that courts will carefully examine factors such as the plaintiff's subjective views and reasoning, changing circumstances during the limitation period, any related criminal allegations, and the potential impact of the defamation action on other legal proceedings. Importantly, the court's evaluation is not based on a set of rigid rules, but rather a holistic assessment of the circumstances surrounding the plaintiff and the defamation claim.

• Individuals considering pursuing a defamation action should be aware of the strict time limits that apply and the factors that courts consider when assessing an application for an extension of the limitation period. It is crucial to consult with a legal professional experienced in defamation law to ensure that any potential claim is pursued in a timely manner and within the appropriate legal framework.

• Moreover, individuals facing both defamation claims and related criminal allegations should carefully weigh the potential consequences of pursuing both legal actions simultaneously. In such cases, prioritising one's defence in criminal proceedings may be a compelling factor in convincing a court to extend the limitation period for a defamation action.

The Role of Statutory Interpretation in Guardianship and Administration Proceedings in Western Australia

In guardianship and administration proceedings, the State Administrative Tribunal (SAT) is responsible for interpreting and applying the provisions of the Guardianship and Administration Act (GA Act) to ensure the best interests of vulnerable individuals are upheld.

This blog post explores how the Tribunal engages in statutory interpretation in relation to the provisions of the GA Act, using insights from the decision in GG [2021] WASAT 133.

Protective Nature of the GA Act

The GA Act is a form of protective legislation designed to provide safeguards for individuals with impaired cognition, who may be at risk of making decisions contrary to their best interests or vulnerable to the decision-making of others (SM[2015] WASAT 132 at [7]).

It allows for the appointment of guardians for personal decision-making and administrators for financial decision-making under specific circumstances.

Principles Governing the GA Act

The starting point for any proceedings under the GA Act is the observance of the principles set out in section 4.

The primary concern of the Tribunal is the best interests of the person in respect of whom orders have been made or proposed (referred to as the represented person) (GG [2021] WASAT 133 at [27]).

Other principles include the presumption of capacity, the need for orders to be necessary and least restrictive, and the consideration of the represented person's views and wishes (GG [2021] WASAT 133 at [27]).

Key Provisions Relevant to Guardianship and Administration Orders

The process involved in making guardianship and administration orders can be summarised in the following steps, as outlined in SM (GG [2021] WASAT 133 at [28]):

1. Determine the represented person's capacity.

2. If incapacity is established, assess whether the represented person is in need of guardianship and administration orders.

3. If orders are needed, decide the authority granted to the guardian and administrator, who should be appointed, and the review date.

Statutory Interpretation of the GA Act

To resolve matters in contention and apply the GA Act, the Tribunal must engage in statutory interpretation, ensuring that each provision is interpreted consistently with the language and purpose of the entire statute (GG [2021] WASAT 133 at [30]). Key considerations and approaches that promote this objective include:

a) Anchoring the construction of legislation in the text itself, but considering its context and purpose (GG [2021] WASAT 133 at [30]).

b) Considering statutory context from the beginning of the interpretation process (GG [2021] WASAT 133 at [30]).

c) Favouring constructions that promote congruity or coherence between intersecting provisions (GG [2021] WASAT 133 at [30]).

d) Ensuring each provision in a legislative instrument has 'work to do' (GG [2021] WASAT 133 at [30]).

e) Taking into account the existing state of the law, the history of the legislative scheme, and the mischief the statute is directed at (GG [2021] WASAT 133 at [30]).

f) Identifying legislative purpose through objective statutory construction, rather than searching for legislators' intentions or superimposing a 'desirable' policy objective (GG [2021] WASAT 133 at [30]).

Key Take-aways

• The process of statutory interpretation plays a critical role in the application of the GA Act in guardianship and administration proceedings.

• By adhering to the principles and key provisions of the GA Act, and engaging in a thoughtful process of statutory interpretation, the Tribunal ensures that the best interests of vulnerable individuals are protected and upheld.

Understanding Section 43 of the Guardianship and Administration Act in Western Australia

As a guardianship lawyer in Western Australia, I regularly consider section 43 of the Guardianship and Administration Act when assessing how to best advocate for my clients.

This section is crucial when it comes to making guardianship orders for adults who need assistance in their personal affairs.

In this blog post, we will explore section 43 and how it is applied in light of the recent decision GG [2021] WASAT 133.

Section 43 - Making of Guardianship Order

According to section 43(1) of the Guardianship and Administration Act, the State Administrative Tribunal can make a guardianship order if it is satisfied that a person:

a) has attained the age of 18 years;

b) meets at least one of the following criteria:

i) is incapable of looking after their own health and safety;

ii) is unable to make reasonable judgments in respect of matters relating to their person; or

iii) is in need of oversight, care or control in the interests of their own health and safety or for the protection of others.

Section 43(1) must be read together with section 4 of the Act, which contains various presumptions about a person's capacity. In particular, section 4(3)(c) presumes that a person is capable of managing their own affairs.

The Nature and Operation of Section 43(1)(b)

In the case of GG [2021] WASAT 133, the Tribunal analysed the nature and operation of section 43(1)(b).

It was noted that this section deals with the question of capacity in a global sense, rather than focusing on the ability to make specific decisions.

Each of the three criteria in section 43(1)(b) has a distinct meaning and application, and they must be read together.

The first criterion (i) is concerned with a person's functional incapacity, specifically their inability to look after their own health and safety.

The second criterion (ii) focuses on an inability to make reasonable judgments, pertaining to any or all matters relating to the person.

The third criterion (iii) refers to a need for oversight, care or control.

Assessing a Person's Capacity

In GG [2021] WASAT 133, the Tribunal provided guidance on assessing a person's capacity to make reasonable judgments about matters relating to their person.

This assessment should be:

a) conducted on both an objective and subjective basis;

b) based on the particular personal needs and decisions that the person may be called upon to make; and

c) evaluated in light of whether the person has the ability to understand, retain, and weigh up relevant information, appreciate the consequences of their decisions, and implement those decisions.

Meaning and Application of the Third Criterion in Section 43(1)(b)(iii)

The meaning and application of the third criterion in section 43(1)(b)(iii) of the Guardianship and Administration Act has been the subject of differing interpretations in previous Tribunal decisions.

In particular, two cases - G [2017] WASAT 108 and KRM [2017] WASAT 135 - presented contrasting views on whether the criterion could stand on its own or if it required overcoming the presumption of capability first.

The GG [2021] WASAT 133 decision offered clarity on the interpretation of this specific criterion.

In the GG [2021] WASAT 133 decision, the Tribunal clarified the interpretation of the third criterion in section 43(1)(b)(iii). The decision emphasised that each of the three criteria should not be construed in isolation, and the context of the Act should be taken into consideration. The Tribunal determined that the term "need" in the third criterion should be understood as reflective of the incapacity of a person to manage their own affairs, and therefore, it should not be viewed as a self-standing ground for intervention.

The GG [2021] WASAT 133 decision further expounded on the third criterion, stating that the need for oversight, care, or control is directed towards a person's functional incapacity. This means that the focus should be on a person's inability to be self-directed, exercise control, and make decisions about their own care or avoid putting others at risk. The decision also highlighted that the language of the provision is widely cast, addressing the consequences of a person's functional incapacity without specifically targeting the cause.

The GG [2021] WASAT 133 decision successfully reconciled the differing views from the Ms G and KRM cases, offering a balanced interpretation of the third criterion in section 43(1)(b)(iii). By focusing on functional incapacity and placing the criterion within the broader context of the Act, the decision provided a more comprehensive understanding of the meaning and application of this criterion in guardianship cases.

Key take-aways

• Section 43 of the Guardianship and Administration Act plays a critical role in determining whether a guardianship order should be made for a person who needs assistance in their personal affairs.

• Understanding the construction and application of this section is essential for guardianship lawyers and individuals involved in guardianship matters.

• By examining the GG [2021] WASAT 133 decision, we gain valuable insight into the interpretation and application of section 43(1)(b) and the criteria that must be satisfied before a guardians

Understanding Guardianship Matters: Assessing Evidence and Criteria in Western Australia

Guardianship matters can be complex and require a deep understanding of the legal framework in place.

In this blog post, I explore how the State Administrative Tribunal (SAT) of Western Australia assesses evidence and applies criteria in guardianship matters.

I rely on extracts from the decision MH [2022] WASAT 74 to provide a general overview and illustrate how evidence from witnesses is assessed in such cases.

Legislation and Application

Guardianship matters in Western Australia are governed by the Guardianship and Administration Act 1990 (WA) (GA Act).

Under section 17A(1) of the GA Act, a person may apply for a review of a decision made by the SAT concerning guardianship orders.

Criteria Used by the Tribunal

In the case of MH [2022] WASAT 74, the SAT considered various criteria to determine whether a person is in need of a guardian.

According to the decision, these criteria included the person's capability to look after their own health and safety, their ability to make reasonable judgments in respect of matters relating to their person, and whether they were in need of oversight, care, or control in the interests of their own health and safety[4].

Assessing Evidence from Witnesses

The SAT follows a thorough process in assessing evidence and evaluating the credibility of witnesses.

In the MH [2022] WASAT 74 case, several witnesses provided testimony, and the Tribunal assessed their credibility based on factors such as:

1. Clarity, confidence, and forthrightness in their statements [31].

2. The scope and depth of their testimony [31].

3. Their qualifications and expertise in the subject matter, if relevant [35].

4. The presence of any personal interests or biases that may affect the credibility of their testimony [33].

5. The extent to which their testimony aligns with other evidence presented in the case [34].

In this case, the Tribunal carefully evaluated each witness's testimony, considering both factual information and expert opinions.

The SAT acknowledged the limitations of some witnesses' statements and took into account their qualifications and expertise when evaluating their opinions [35].

Furthermore, the Tribunal considered any potential personal interests or biases that could affect the witnesses' credibility [33].

Outcome and Guardianship Order

After assessing all the evidence and witness testimonies, the SAT in MH [2022] WASAT 74 concluded that the person met the necessary criteria outlined in the GA Act and appointed a limited guardian with specific functions [4].

The Tribunal also set a review period to ensure the ongoing suitability of the guardianship order [4].

Key Take-Aways

• Understanding how the SAT assesses evidence and applies criteria in guardianship matters is essential for navigating this complex area of law.

• By examining relevant legislation and case law, such as the MH [2022] WASAT 74 decision, legal professionals and individuals involved in guardianship matters can gain valuable insights into how the Tribunal evaluates evidence from witnesses and makes decisions in these cases.

Can an Incorporated Legal Practice Recover Costs for Work Done by Its Solicitors When Acting for Itself?

In light of the Pentelow decision, there has been a growing interest in the question of whether an incorporated legal practice acting for itself can recover costs for work done by its solicitors. In this blog, I explore the current state of the law on this topic.

The General Rule: Self-Represented Litigants Cannot Recover Costs

As a general rule, self-represented litigants are not entitled to recover any recompense for the value of their time spent in litigation. This rule is based on the principle that a party should not be compensated for their own time and effort spent in pursuing or defending a legal claim.

In Bell Lawyers Pty Ltd v Pentelow, the High Court of Australia determined that the Chorley exception, which previously allowed self-represented solicitors to recover their professional costs, should not be recognized as part of Australian common law.

Incorporated Legal Practices and the Employed Solicitor Rule

The question of whether an incorporated legal practice can recover costs for work done by its solicitors when acting for itself was left open in Bell Lawyers. The court noted that it might be queried whether a solicitor employed by an incorporated legal practice of which he or she is the sole director has sufficient professional detachment to be characterized as acting in a professional legal capacity.

Subsequent cases have sought to address this question.

In United Petroleum Australia Pty Ltd v Herbert Smith Freehills, the Court of Appeal held that a claim by a firm of solicitors (operating as a partnership) to recover costs for the work of its employees fit within the general rule for self-represented litigants, and not within the "well-established understanding" relating to employed solicitors.

The "employed solicitor rule" refers to a well-established understanding in Australian law that allows non-lawyer parties, such as government entities or corporations, to recover costs for legal services provided by their in-house or employed lawyers. This rule operates within the indemnity principle, as even though there is no liability to pay a third party (such as an external law practice), there is still a clear distinction between the client and the lawyer, as well as a functional equivalence between paying external lawyers and offsetting the overhead costs incurred by employing lawyers to act on behalf of their employer.

However, this understanding does not extend to parties that are lawyers representing themselves. According to the United Petroleum Australia Pty Ltd v Freehills case, the only exception that previously allowed lawyers to recover costs for self-representation was the Chorley exception, which has since been overruled in Bell Lawyers. Allowing law firms to recover costs on the basis that the legal work was undertaken by employed solicitors, rather than the firm's owners, would potentially undermine the outcome of the Bell Lawyers decision.

In Guneser v Aitken Partners, the court considered whether an incorporated legal practice acting for itself could recover costs in respect of work done by its employee solicitors. The court followed a similar approach to the Court of Appeal in United Petroleum, asking whether the incorporated legal practice fit within the general exclusionary rule for self-represented litigants and whether the claim fell within the "employed solicitor rule" so that its costs were recoverable. Ultimately, the court determined that the general exclusionary rule applied, and the "employed solicitor rule" (or the "well-established understanding") did not apply.

Key take-aways

• An incorporated legal practice acting for itself cannot recover costs in respect of work done by its solicitors.

• This conclusion is consistent with the general rule that self-represented litigants cannot recover costs and the court's reluctance to recognise exceptions to this rule.

Cases mentioned in this blog:

• Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 93 ALJR 1007

• United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15

• Guneser v Aitken Partners (Cross Appeal On Costs) [2020] VSC 329

Indemnity Costs and the Consequences of Unwarranted Allegations in Legal Proceedings

In the legal world, we often come across situations where allegations are made that should never have been made, and personal attacks are directed at lawyers. Such actions can have serious consequences, not only for the parties involved but also for the legal system as a whole.

In this blog post, I discuss the importance of indemnity costs and the potential consequences of lawyers making personal attacks, with a focus on a recent Supreme Court of the Australian Capital Territory (Court of Appeal) decision, Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13.

Indemnity costs are awarded in cases where a party has acted unreasonably or in bad faith, thereby causing the other party to incur additional costs. These costs are ordered in circumstances where allegations are made "which ought never to have been made," the case is "unduly prolonged by groundless contentions," or where "the applicant, properly advised, should have known that he had no chance of success" or "persists in what should on proper consideration be seen to be a hopeless case" (Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116 at [5]).

In the case of Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13, the Court ordered indemnity costs against the applicant for reagitating issues that had previously been determined adversely by the Court. The applicant, properly advised, must have been aware that he had no prospects of success in the application. The sixth respondent, in this case, was entitled to indemnity costs for the unwarranted allegations and groundless contentions made by the applicant.

Moreover, the applicant in this case had a propensity to advance personal attacks directed at counsel for the sixth respondent and the instructing solicitor. Allegations of this kind should not be made by admitted practitioners against other admitted practitioners without clear and compelling evidence. As no such evidence was advanced before the Court, the sixth respondent should not be put to any cost in respect of agitating those allegations. This matter formed an independent basis for ordering indemnity costs.

It is important to note that lawyers who make personal attacks or unwarranted allegations may face consequences beyond costs orders. In Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13, the Court considered whether it was appropriate to restrain the applicant's representative, Mr. Wilson, from continuing to act for the applicant. This decision was based on the potential finding that Mr. Wilson was not in a position to give impartial and independent advice to the applicant and was acting as a mere mouthpiece for his personal interest and grievance against the sixth respondent and their legal advisors.

The Court has inherent powers and powers under the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (rr 17.1 and 27.2) to make such orders. However, in this case, the Court decided not to make such an order due to the exceptional nature of the remedy and the lack of submissions on the issue by the parties.

In conclusion, it is crucial for legal practitioners to maintain professionalism and avoid making unwarranted allegations or personal attacks. Such actions may result in indemnity costs being ordered against their clients and potential consequences for the practitioners themselves. The case of Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13 serves as a reminder of the importance of upholding high standards of conduct in the legal profession.

Can Represented Persons Appoint Agents to Access Information Under the Guardianship and Administration Act 1990 (WA)?

In a recent Western Australian case, NE [2023] WASAT 30, the question arose as to whether a represented person, under the Guardianship and Administration Act 1990 (WA) (GA Act), could appoint an agent to access information on their behalf.

This blog post explores the issues surrounding the appointment of agents by represented persons, particularly in relation to the provision of information.

Appointment of Agents by Represented Persons

The case involved the question of whether s 77 of the GA Act permitted a represented person to appoint an agent to access information related to their estate. NE, the represented person, had signed an agency authority appointing two individuals as her authorized agents to access and inspect certain documents concerning her estate, including court orders and financial records held by the Public Trustee.

Section 77 of the GA Act

Section 77 of the GA Act provides that a person who has been declared in need of an administrator for their estate is incapable of entering into any contract, making any disposition in respect of their estate, or appointing or conferring any power on an agent or attorney in respect thereof, except to the extent that the administrator, with the consent of the Tribunal, authorizes them to do so.

The Tribunal's Decision

The Tribunal found that NE lacked the legal capacity to give an agency authority, as a declaration had been made under s 64(1) of the GA Act, and an administration order was in force in respect of her estate.

The Tribunal concluded that the appointment of an agent to receive information under s 47 of the PT Act was prevented by s 77 of the GA Act.

The Tribunal also noted that the GA Act's provisions reinforced the authority of the plenary administrator to deal with the represented person's estate during the currency of the administration order, to the exclusion of others, including the represented person. In this case, the Public Trustee held plenary authority and could perform any function in relation to NE's estate that she herself could perform if of full legal capacity.

Provision of Information to Purported Agents

The Tribunal emphasised that the GA Act contained confidentiality and other provisions which strictly controlled the release and use of information regarding represented persons.

The Tribunal noted that s 113 of the GA Act prohibited the disclosure of personal information relating to a represented person, except in certain authorized circumstances.

In this case, the Tribunal found that the purported agents were not entitled to the documents sought, as they were not within the category of persons to whom information could be given pursuant to s 47(3) of the PT Act. The Public Trustee, therefore, did not accept the agency authority which NE had executed.

Key take-aways

• The Tribunal's decision in NE [2023] WASAT 30 highlights the limitations on the ability of represented persons to appoint agents under the GA Act.

• Specifically, the case demonstrates that a represented person who is subject to an administration order lacks the legal capacity to appoint an agent to access information related to their estate.

• This serves as a reminder of the importance of understanding and adhering to the provisions of the GA Act and other relevant legislation when dealing with represented persons and their estates.

Can a Represented Person Appoint an Agent under Section 77 of the Guardianship and Administration Act 1990 (WA)?

One question that has arisen in the guardianship and administration law context in Western Australia is whether a represented person can appoint an agent under Section 77 of the Guardianship and Administration Act 1990 (WA) (GA Act).

In this blog post, I explore this issue, focusing on the recent decision of NE [2023] WASAT 30 and the relevant legislative provisions.

Background

In the case of NE [2023] WASAT 30, the applicants sought to be appointed as agents for NE under Section 47 of the Public Trustee Act 1941 (PT Act).

However, the Public Trustee did not acknowledge them as agents of NE, citing Section 77 of the GA Act, which concerns the capacity of a represented person to appoint an agent.

Section 77 of the GA Act

Section 77(1) of the GA Act provides that a represented person is incapable of entering into any contract or making any disposition in respect of their estate or any part thereof or interest therein, or appointing or conferring any power on an agent or attorney in respect thereof, except to the extent that the administrator, with the consent of the Tribunal, in writing authorises them to do so.

In NE [2023] WASAT 30, the Tribunal found that following the declaration made under Section 64(1) of the GA Act, Section 77 of the GA Act prevented NE from dealing with her estate by entering any contract or making any disposition or appointing or conferring any power on an agent without the authority of the administrator and the consent of the Tribunal.

The applicants argued that the words 'in respect thereof' in Section 77(1)(b) of the GA Act limited the prohibition on the appointment of an agent by a represented person to matters relating to contracts or dispositions from the estate of the represented person.

The Tribunal disagreed with this interpretation, finding that a plain reading of Section 77(1)(b) of the GA Act referred to the estate of the represented person, having regard to the preceding words in Section 77(1)(a) of the GA Act.

Implications

The decision in NE [2023] WASAT 30 confirms that a represented person cannot appoint an agent under Section 77 of the GA Act without the authority of the administrator and the consent of the Tribunal.

This interpretation is consistent with the broader legislative framework of the GA Act, which aims to provide certainty as to who has authority and control over the estate of a person found to be lacking capacity.

Key take-aways

• Based on the decision in NE [2023] WASAT 30 and the relevant provisions of the GA Act, a represented person in Western Australia cannot appoint an agent without the authority of the administrator and the consent of the Tribunal.

• It is important for guardianship lawyers and represented persons to be aware of these legislative provisions to ensure that they are acting in accordance with the law.

Understanding Conflicts of Interest in Enduring Powers of Attorney in Western Australia

An enduring power of attorney (EPA) allows a person to appoint someone to make financial and property decisions on their behalf, even if they lose capacity (although it must only be executed before the donor has lost the capacity to make an EPA).

In Western Australia, the Guardianship and Administration Act 1990 (the GA Act) regulates EPAs.

This article explores the concept of conflicts of interest in the context of EPAs, drawing on the Western Australian State Administrative Tribunal decision ET [2021] WASAT 36 as an example.

Establishing an Enduring Power of Attorney

An EPA is created and regulated by the GA Act in Western Australia. It allows the donor to grant the donee the authority to make decisions on their behalf.

The power can be general, allowing the donee to make any decision the donor could, or limited to specific acts (KS [2008] WASAT 29) (KS). The EPA remains valid even if the donor loses capacity (ET [2021] WASAT 36, [240]).

Conflicts of Interest and the Duty of Attorneys

An attorney acting under an EPA has a duty to act in the best interests of the donor.

The GA Act obliges the attorney to exercise their power with reasonable diligence to protect the interests of the donor (GA Act, s 107(1)).

If the attorney fails to do so, they may be liable for any loss caused by their failure (ET [2021] WASAT 36, [242]).

A conflict of interest can arise if an attorney prefers their own interests over the donor's interests.

In Tobin v Broadbent (1947) 75 CLR 378, Dixon J stated that a power of attorney should not be construed as authorizing the attorney to deal with the donor's property for the attorney's own benefit, unless there is specific and unambiguous authorization (ET [2021] WASAT 36, [52]).

ET [2021] WASAT 36 Case Example

In this case, ET had executed an EPA in 2018 and had not revoked it before losing capacity (ET [2021] WASAT 36, [239]).

A conflict arose between the attorneys and ET's family members, leading to accusations of impropriety and overcharging by one of the attorneys, CR (ET [2021] WASAT 36, [246]).

The Tribunal ultimately found that despite some extreme actions and language, CR had acted with genuine concern for ET's best interests and had maintained a constant and earnest approach to his role (ET [2021] WASAT 36, [260]).

The Tribunal decided not to appoint an administrator for ET's estate, as it was in her best interests for the current attorneys to continue managing her affairs, with support from her enduring guardian (ET [2021] WASAT 36, [258], [262], [268]).

Key take-aways

• Conflicts of interest can arise in the context of an EPA, and attorneys have a duty to act in the best interests of the donor.

• The ET [2021] WASAT 36 case illustrates the importance of attorneys acting with reasonable diligence and considering the donor's interests above their own.

• Attorneys should be mindful of potential conflicts of interest and ensure they are acting in accordance with their legal obligations under the GA Act.