BJP
[2005] WASAT 137
•1 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990
CITATION: BJP [2005] WASAT 137
MEMBER: MS D DEAN (MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 1 JUNE 2005
FILE NO/S: GAA 830 of 2005
BETWEEN: BJP
Applicant
Catchwords:
Administration - Application for inspection of documents - Application refused
Legislation:
Guardianship and Administration Act 1990 (WA), s 112
Result:
The application under s 112 to inspect documents is refused.
Category: B
Representation:
Counsel:
Applicant: Self represented
Solicitors:
Applicant: Self-represented
Case(s) referred to in decision(s):
MB [2004] WAGAB 25
Case(s) also cited:
Nil
MS D DEAN (MEMBER)
REASON FOR DECISION
Background
On 11 May 1999 DP, son of BJP, made an application to the then Guardianship and Administration Board for an administration order in respect of BJP. At the time of the application BJP was a 94‑year‑old man living in a nursing home and was said to have Alzheimer's type dementia.
From 1994 BJP was a party to a number of leasing documents relating to a property he owned. These agreements were between him and ES, JL and VG.
On 24 September 1997 BJP executed an Enduring Power of Attorney (EPA) in favour of joint donees DP and ELP.
In May 1998 BJP was assessed by a doctor as being unable to make rational, informed decisions.
In October 1998 another doctor assessed BJP as having a significant degree of dementia and unable to manage his financial affairs.
A caveat was placed on the property mentioned above, on 30 March 1999 by VG, one of the signatories to the property leasing agreements.
DP, joint donee of the EPA applied to the Guardianship and Administration Board for the EPA to be revoked and for an administration order to be made.
On 22 June 1999 the Board revoked the EPA and appointed DP and ELP joint plenary administrators for a period of five years.
BJP died on 14 September 2001.
On 18 May 2005 JS, solicitors acting for ES, JL and VG, signatories on the property leasing documents, applied to the State Administrative Tribunal (SAT) for access to the Board’s file concerning the administration application. The solicitors also requested a transcript of the 1999 hearing.
JS, solicitor, informed the Tribunal that the executor of the estate of BJP was seeking to have the contract entered into between BJP, ES, JL and VG set aside by reason of lack of capacity. The matter was currently the subject of proceedings in the Supreme Court of Western Australia between the executor of the estate and ES, JL and VG. The solicitors advised that to properly assess the matter and to advise their clients accordingly access to the file was necessary.
Legislation
Section 112 of the Guardianship and Administration Act 1990 (WA) allows for the inspection of documents.
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 BJP are complete, s 112(1) is not relevant to JS's application.
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 BJP are no longer pending, this section is not applicable to JS's application.
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.
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 JS's application. The Tribunal would only exercise this discretion and allow access to such documents if satisfied that such inspection or access is appropriate.
Findings and reasons
The Full Board of the Guardianship and Administration Board considered an application for inspection in its decision in MB [2004] WAGAB 25. MB considered an application for review, by Mr MB, of a determination by a single member of the Board refusing inspection. The Full Board determined that s 112(4) gave the Board the discretion to grant access to documents where there are very good reasons to permit access but the overriding principle, as outlined in s 4(2)(a) of the Act is, "the best interests of any represented person". The Board refused access because it was not satisfied that Mr MB provided good reasons for his application or that inspection was in the best interests of the represented person.
In this case the Tribunal is satisfied that the stated reasons for the request for access to documents and material, while superficially having the appearance of being relevant to the administration application hearing of 22 June 1999, are in fact unrelated to the substance of that hearing. The Tribunal is therefore not satisfied in this case that there are good reasons to permit access.
Further, the Tribunal is not satisfied from the evidence before it that the inspection is in the best interests of the represented person, BJP.
The Tribunal is satisfied that the application by JS for inspection is not based on good reasons or the best interests of the represented person and therefore does not warrant the Tribunal exercising its discretion under s 112(4).
Decision
The Tribunal has carefully considered the application by JS to inspect documents and materials in relation to the administration application hearing on 22 June 1999 and refuses leave to inspect such documents and materials.
The order of the Tribunal is:
1.The application under s 112 to inspect documents is refused.
I certify that this and the 4 preceding pages comprise the reasons for decision of the member who heard this matter.
____________________________
D Dean, Member
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