AS
[2005] WASAT 274
•10 OCTOBER 2005
AS [2005] WASAT 274
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 274 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1609/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MS D DEAN (MEMBER) | 10/10/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | The application for inspection of documents is dismissed | ||
| B | |||
| PDF Version |
| Parties: | AS RKW |
Catchwords: | Guardianship and Administration Application for inspection of documents Represented person deceased Application refused |
Legislation: | Guardianship and Administration Act 1990 (WA), s 12, s 12(1), s 12(2), s 12(3), s 12(4) |
Case References: | Re MB (Unreported Decision 9 June 2004) Re MM (2001) 28 SR (WA) 320 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : AS [2005] WASAT 274 MEMBER : MS D DEAN (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 10 OCTOBER 2005 FILE NO/S : GAA 1609 of 2005 BETWEEN : AS
- Applicant
RKW
Represented Person (deceased)
Catchwords:
Guardianship and Administration - Application for inspection of documents - Represented person deceased - Application refused
Legislation:
Guardianship and Administration Act 1990 (WA), s 12, s 12(1), s 12(2), s 12(3), s 12(4)
Result:
The application for inspection of documents is dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Represented Person (deceased) : N/A
Solicitors:
Applicant : Self-represented
Represented Person (deceased) : N/A
Case(s) referred to in decision(s):
Re MB (Unreported Decision of the Guardianship and Administration Board; Hon Justice ML Barker, President, Mr J James and Ms J Stanton, Members; 9 June 2004)
Re MM (2001) 28 SR (WA) 320
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 The applicant, AS, applied to the State Administrative Tribunal (the Tribunal) under s 112(4) of the Guardianship and Administration Act1990 (WA) for access to documents held by the Tribunal, which related to a hearing in respect of her father, RW, the represented person.
2 The applicant gave her reasons for requesting access as requiring assistance "in compiling a true account of the circumstances that lead me to being appointed Plenary Administrator". Prior to his death, RW had been the subject of an administration order.
3 In making decisions about whether or not to grant access to documents in cases such as this, the Tribunal has broad discretion under s 112(4).
4 In this case the Tribunal did not allow access to the requested documents as it was not satisfied that such inspection or access was justified.
Application for inspection of documents
5 On the 10 December 2004, the Tribunal received an application from AS for inspection of documents. This application was dismissed on the basis that AS had failed to "disclose cogent reasons" for granting inspection.
6 On 9 September 2005, the Tribunal received a second application from AS for inspection of documents. AS requested "a copy of the original application from the Guardianship and Administration Board, now the State Administrative Tribunal submitted by LW … together with all other relevant information and/or submissions with regard to the above case. This should include any submissions from [BL], [JM], [HC], [DW] and any other parties associated with this case". AS stated that she required "this application to assist me in compiling a true account of the circumstances that lead to me being appointed Plenary Administrator".
Background
7 In 2004 an application for administration was made in respect of RW by one of his daughters, LW, who sought to be appointed administrator.
(Page 4)
8 On 23 November 2004, after consideration of the evidence provided both prior to and at the hearing, the then Guardianship and Administration Board appointed AS, another daughter of RW, plenary administrator for a period of five years.
9 It was evident at the hearing that there was a difference of opinion between various members of the family about the need for an order and if an order was to be made, about who should be appointed administrator.
10 RW died on 12 December 2004
Legislation
11 Section 112 of the Guardianship and Administration Act 1990 (WA) allows for the inspection of documents.
12 Section 112(1) provides that for the purposes of any application a represented person or proposed represented person is entitled to inspect or have access to documents and materials. This right is exercisable only in the course of pending proceedings and is no longer relevant once proceedings have been determined. As the proceedings concerning RW are complete, s 112(1) is not relevant to AS's application.
13 Section 112(2) entitles a person who is not the represented person or the proposed represented person, or their representative, but who is otherwise a party to proceedings, to inspect or otherwise have access to documents or materials for the purpose of those proceedings. As in s 112(1), the right given by s 112(2) is for pending proceedings and as proceedings concerning RW are no longer pending, this section is not applicable to AS's application.
14 Section 112(3) of the Act reinforces the limited inspection and access rights by making it an offence, except as provided in the section, for a person, unless authorised to do so by order of the Tribunal, to inspect or otherwise have access to documents or material lodged with, or held by the Tribunal for the purposes of any application.
15 Section 112(4) provides the Tribunal with broad discretion on the application to inspect and have access to documents and may apply to documents and materials other than those in proceedings before the Tribunal. This section is therefore relevant to AS's application. The Tribunal would only exercise this discretion and allow access to such documents if satisfied that such inspection or access is appropriate.
(Page 5)
Findings and reasons
16 The Full Board of the Guardianship and Administration Board, when considering an application for review for refusal of inspection under s 112(4), made the following statements in respect of the operation of that section. See Re MB (Unreported Decision of the Guardianship and Administration Board; Hon Justice ML Barker, President, Mr J James and Ms J Stanton, Members; 9 June 2004) at [34]:
"The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Board are limited … Documents and other materials held by the Board very often go to matters that are highly confidential in respect of the health and safety of the person who may be in need of a guardianship order. In those circumstances it is to be expected that only a limited class of persons would ordinarily be entitled to inspect documents held by the Board."
17 The Full Board referred to two important policies underpinning the provisions of s 112: firstly, the protection of the privacy of the person involved in the proceedings before the Board and, in particular, a proposed represented person or a represented person; and secondly, the public interest in the integrity of the Board processes which relies on the ability to obtain sensitive information from a variety of sources: see Re MM (2001) 28 SR (WA) 320.
18 Section 112(4) is not limited in its terms and, in an appropriate case, may include inspection or access to relevant documents or materials for purposes other than proceedings before the Board, although the circumstances in which the Board would ordinarily consider exercising this power may be considered limited. As the Board said in Re MM (supra), at para 332:
" … [G]iven the sensitive and confidential nature of much of the material held by this Board, we are of the view that where an applicant requests the Board to exercise its discretion under s 112(4) for purposes not related to proceedings before the Board, he or she must provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed (see generally DeHass v Murcia and Associates, Supreme Court of Western Australia Library No 980633, per Templeman J.). It is not sufficient to rely on a general desire to be informed."
(Page 6)
19 When considering the nature of the discretion to allow access under s 112(4), the Full Board confirmed the discretion to be a wide one, which may be exercised on an application or at the initiative of the Board (now the Tribunal). The Full Board considered circumstances when this discretion might be exercised: at [66 and 67]:
" … [W]e think there are good reasons, relating to good public administration, why the Board's power to grant access to relevant documents and materials under s 112(4) should not be construed narrowly. It is possible to envisage a number of circumstances in which, for example, persons charged by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with and are held by the Board for the purpose of an application. The Board should be able to determine on an application-by-application basis whether the request for access by a person should be granted. But as the Board said in Re MM (supra), the reasons advanced in support of a request for access under s 112(4) will need to be cogent and be justified on a 'need to know' basis."
20 In this case, the applicant seeks very wide access to documents on the Tribunal's file for the purpose of "compiling a true account of the circumstances" leading to her appointment as administrator of her father's estate. The application for inspection is not one such as an "official investigation in the public interest" which would be appropriate for the Tribunal to exercise discretion in favour of the applicant.
21 To allow inspection of the documents by the applicant for the stated purpose does not uphold the public interest, identified by the Full Board in Re MM (supra) and confirmed in Re MB (supra), in maintaining the integrity of the processes of the Board (now the Tribunal) in dealing with applications for the appointment administrators. As was stated by the Full Board, that process "relies on the ability to obtain sensitive information from a variety of sources". If reports provided for the purpose of dealing with such applications were later made available for other purposes, those who produce reports or put material before the Tribunal at hearings may be reluctant to do so in the future. The evidence or reports produced at the request of the Board in relation to the application made in respect of RW in 2004, and now on the file held by the Tribunal, were produced for the specific purpose of ascertaining the capacity of RW to make reasonable decision in respect of his estate in November 2004.
(Page 7)
Conclusion and order
22 The Tribunal is not satisfied that the purpose for which access is presently sought is sufficient reason for allowing the applicant access to documents or materials held by the Tribunal in relation to the proceedings that were before the Board concerning RW in 2004.
Decision
23 The Tribunal has considered the application by AS, to inspect documents and materials in relation to the administration application hearing in respect of RW, the represented person, and refuses access to inspect such documents and materials.
24 The order of the Tribunal is:
1. The application under s 112 to inspect documents is dismissed.
- I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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