AB and PUBLIC TRUSTEE - [2015] WASAT 68

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AB and PUBLIC TRUSTEE [2015] WASAT 68

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)

HEARD: 12 JUNE 2015

DELIVERED : 23 JUNE 2015

FILE NO/S: GAA 4381 of 2014

BETWEEN: AB
Applicant
AND
PUBLIC TRUSTEE
Respondent

Catchwords:

Guardianship and administration - Inspection of documents - Legislative intent of Guardianship and Administration Act 1990 (WA) - Public policy underpinning inspection regime - Cogent reasons needed to inspect documents

Legislation:

Freedom of Information Act 1992 (WA)
Guardianship and Administration Act 1990 (WA), s 3, s 80, s 112, s 113
State Administrative Tribunal Act 2004 (WA), s 35, s 35(1)

Result:

Application dismissed

Summary of Tribunal's decision:

The applicant, who was the executor of an estate of a former represented person (deceased), sought orders from the Tribunal to permit inspection of documents that had been filed with the Public Trustee by the administrator of the represented person.
The orders sought are, in essence, to aid the executor of the estate of the deceased person to administer the estate and will accrue for the benefit of the beneficiaries of the estate of the deceased person.
The power to inspect under s 112(2) of the Guardianship and Administration Act 1990 (WA), ceases once the represented person dies. Therefore, if there is any jurisdiction to allow inspection of documents held by the Tribunal after the death of a represented person, it can only arise under s 112(4) of the GA Act.
The corollary of the wide discretion of the Tribunal to allow inspection under s 112(4) of the GA Act is that a request for access will need to be justified by very cogent reasons.
No public policy reasons were identified as to why orders should be made under s 112(4) of the GA Act. Accordingly, the application was dismissed.

Category: B

Representation:

Counsel:

Applicant: Mr J Lacerenza
Respondent: Mr M Bowyer

Solicitors:

Applicant: G A Lacerenza & Associates
Respondent: Public Trustee

Case(s) referred to in decision(s):

De Hass v Murcia and Associates (unreported, Supreme Court, Western Australia, Library No 980633, 14 July 1998)
KWD [2011] WASAT 4
MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

NC was a represented person pursuant to orders made by this Tribunal. GC was appointed NC's plenary administrator by the Tribunal on 1 September 2008. NC died on 25 October 2009.
The applicant, AB, in these proceedings is the executor of the estate of NC. The letters of probate of the estate of NC were granted by the Supreme Court on 29 January 2014. The delay between death and probate was not explained.
GC, the administrator of NC filed documents with the Public Trustee pursuant to s 80 of the Guardianship and Administration Act 1990 (WA) (GA Act).
In short, the applicant seeks orders that:
a)The Public Trustee delivers the documents filed by the administrator of NC with the Public Trustee to the Tribunal; and
b)The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB and PUBLIC TRUSTEE

Details

AGLC: AB and Public Trustee [2015] WASAT 68
Case: [2015] WASAT 68
Decision Date: 23 JUNE 2015

CaseChat Overview and Summary

In the matter of AB and the Public Trustee, the court was asked to determine the scope of the inspection of documents under the Guardianship and Administration Act 1990 (WA). The appellant sought access to documents held by the Public Trustee, which were related to the administration of a ward's estate. The appellant argued that the inspection provisions of the Act allowed for a broad right to access documents, while the Public Trustee contended that access should be restricted and subject to the court's discretion.

The court was required to interpret the inspection provisions of the Act and determine the standard of proof needed to justify an inspection. The key issue was whether the appellant needed to establish a compelling reason to inspect the documents or if the onus was on the Public Trustee to justify why access should be denied. The court also had to consider the public policy underlying the inspection regime and the balance between the privacy interests of the ward and the appellant's right to access information.

The court held that the inspection provisions of the Act should be narrowly construed and that the appellant needed to demonstrate cogent reasons to justify an inspection. The court found that the public policy underpinning the inspection regime was to protect the privacy and confidentiality of the ward's information while allowing for necessary scrutiny of the administration of the estate. The court emphasised that the onus was on the appellant to establish that the inspection was necessary and proportionate to the purpose of the inspection. The court rejected the appellant's argument that the inspection provisions allowed for a broad right to access documents, finding that such an interpretation would undermine the privacy interests of the ward.

The court ordered that the appellant's application for inspection of the documents be refused unless the appellant could establish cogent reasons to justify the inspection. The court also noted that the appellant could seek further orders from the court if new evidence or circumstances arose that would warrant an inspection. The decision highlights the importance of balancing privacy interests with the need for transparency and accountability in the administration of estates under the Guardianship and Administration Act 1990 (WA).

Orders