CD

[2020] WASAT 41

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   CD [2020] WASAT 41

MEMBER:   JUSTICE PRITCHARD, PRESIDENT

HEARD:   25 OCTOBER 2019 AND 15 NOVEMBER 2019

DELIVERED          :   30 APRIL 2020

FILE NO/S:   GAA 3629 of 2017

CD

Proposed Represented Person

Catchwords:

Guardianship and administration - Interim application - Application for variation of orders made by Tribunal in December 2017 and January 2018 nunc pro tunc - Where orders made by Tribunal for access to documents under s 112(4) of Guardianship and Administration Act 1990 (WA) - Access to documents permitted only for purposes of either originating or review proceedings in Tribunal under Guardianship and Administration Act 1990 (WA) - Whether documents used in preparation of affidavit in pre­action discovery application in Supreme Court of Western Australia - Whether terms of the orders extend to the application for pre­action discovery in Supreme Court of Western Australia

Guardianship and administration - operation of presumption of capacity in s 4(3) of Guardianship and Administration Act 1990 (WA) - Whether presumption applies more broadly than in guardianship and administration proceedings in Tribunal

Application for variation of orders made by Tribunal nunc pro tunc - General principles applicable to variation of orders nunc pro tunc - Whether Tribunal has power to vary orders nunc pro tunc - Factors relevant to discretion to vary orders nunc pro tunc

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(7), s 17 Sch 1 cl 11, s 17 Sch 2 cl 12, s 40, s 43, s 64, s 112, s 113
State Administrative Tribunal Act 2004 (WA), s 34(5), s 35(1), s 73(1), s 82(1), s 86, s 100, s 100(1)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Proposed Represented Person	:	N/A
Applicants	:	Mr S Penglis SC
Interested Third Party	:	Mr G Donaldson SC & Ms PM Tantiprasut

Solicitors:

Proposed Represented Person	:	N/A
Applicants	:	Bennett + Co
Interested Third Party	:	Lemonis & Tantiprasut Lawyers

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

[Suppressed]

AB and Public Trustee [2015] WASAT 68

Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58

Attorney­General v Parnther (1792) 3 Bro CC 441; [1792] 29 ER 632

Bedshed Franchising Pty Ltd v Battersby [No. 2] [2015] WASC 281

Dalle-Molle v Manos (2004) 88 SASR 193

Emanuele v Australian Securities Commission (1997) 188 CLR 114

Forty Two International Pty Ltd v Barnes [2010] FCA 397

Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2018] WASCA 185

KN [2015] WASAT 104; (2015) 88 SR (WA) 76

KWD [2011] WASAT 4

L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114

Laen Pty Ltd v At The Heads Pty Ltd [2011] VSC 315

Laurent v Fates [2015] WASCA 226

Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511

MB [2004] WAGAB 25

Miller v Scorey [1996] 1 WLR 1122

Murcia & Associates (A Firm) v Grey [2001] WASCA 240

Murphy v Doman [2005] NSWCA 249; (2003) 58 NSWLR 51

Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No. 9] [2013] WASC 42

Re MM (2001) 28 SR (WA) 320

Rowe v Stoltze [2013] WASCA 92

Smolarek v Liwszyc [2006] 57 ACSR 504

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Templeton v Hamersley Iron Pty Ltd [2001] WASCA 179

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 4 December 2017, Mrs AD[1] made an application to the Tribunal pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) for guardianship and administration orders to be made with respect to her husband, Mr CD, and for her appointment as Mr CD's guardian and administrator (Original GA Proceedings).  Mr CD's children, Ms MD and Ms KD (Applicants) were aware of the Original GA Proceedings. They were represented by Mr Martin Bennett of the law firm Bennett + Co.

   [1] The names of all parties, witnesses and medical practitioners referred to in these reasons have been anonymised, according to the list in the Appendix to these reasons.   

2. On 8 November 2017, Bennett + Co made an application to the Tribunal on behalf of the Applicants for copies of any application made by Mrs AD, and any supporting documents, in relation to the Original GA Proceedings (First Access Application).[2] On 15 December 2017, the Tribunal made orders granting access to all documents relating to the Original GA Proceedings, on certain conditions (December 2017 Orders).

   [2] Exhibit 1, page 3 (Affidavit of Martin Lawrence Bennett sworn, 21 August 2019, para 5).

3. In January 2018, the Original GA Proceedings were withdrawn, prior to any determination by the Tribunal as to whether guardianship or administration orders should be made.

4. On 12 January 2018, Bennett + Co made an application to the Tribunal for access to any further documents filed in the Original GA Proceedings after 15 December 2017 (Second Access Application). On 17 January 2018, the Tribunal made orders granting the Applicants access to the documents sought in the Second Access Application, on certain conditions (January 2018 Orders).

5. Pursuant to the December 2017 Orders and the January 2018 Orders (collectively, the Orders), Bennett + Co were given copies of the documents sought in the First Access Application and the Second Access Application (collectively, the Documents).

6. Solicitors from Bennett + Co, namely Mr Bennett and Ms Taleesha Elder, used the Documents to prepare an affidavit of Ms MD sworn 29 June 2018 (MD Affidavit). The MD Affidavit was filed in the Supreme Court in support of an application by the Applicants for pre­action discovery, from Mr CD and Mrs AD (PAD defendants), of documents relating to the legal capacity and mental health of Mr CD (PAD Application).[3]

   [3] The proceedings concerning the PAD Application were the subject of suppression orders made by the Supreme Court.  The Tribunal was advised that those orders were varied to permit Mrs AD to provide the Tribunal with copies of documents filed in those proceedings.  Bearing in mind the confidentiality of the proceedings concerning the PAD Application, these reasons have been drafted with a view to minimising the disclosure of details of those proceedings.

7. On 30 May 2019, the Applicants made an application to the Tribunal pursuant to the GA Act, for guardianship and administration orders to be made in respect of Mr CD (2019 GA Proceedings). They applied to be made Mr CD's guardians, and to be appointed the administrators of his estate. Mrs AD participated in the 2019 GA Proceedings. She opposed the appointment of the Applicants as Mr CD's guardians and administrators. The 2019 GA Proceedings were finally determined on 30 January 2020.

8. On 12 August 2019, while the 2019 GA Proceedings were underway, Mrs AD made an application to the Tribunal pursuant to s 86 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for a certificate from a judicial member of the Tribunal stating that the December 2017 Orders were appropriate for filing in the Supreme Court and written permission that that certificate and a copy of the December 2017 Orders may be filed in the Supreme Court for the purposes of enforcing those orders by contempt proceedings (s 86 Certificate Application). Mrs AD alleged, amongst other things, that the use of the Documents in connection with the PAD Application, was contrary to the terms of the December 2017 Orders.[4] (However, as the material terms of the Orders were the same, I have, for convenience, referred in these reasons to the alleged breach of the Orders rather than to the alleged breach of the December 2017 Orders). In the course of the 2019 GA Proceedings, Mrs AD also alleged that the Applicants' use of the Documents for the PAD Application, contrary to the Orders, demonstrated that the Applicants were not suitable for appointment as Mr CD's guardians and the administrators of his estate.

   [4] The s 86 Certificate Application also alleged an additional breach of the December 2017 Orders, but that additional allegation was not ultimately pursued.

9. On 21 August 2019, while the 2019 GA Proceedings were underway, the Applicants applied to the Tribunal (NPT Application) to vary each of the Orders nunc pro tunc, so as to permit the Applicants to use the Documents for the limited purpose of preparing and filing the MD Affidavit in the PAD Application (disputed use).[5] The Applicants did not concede that the disputed use of the Documents in fact constituted a breach of the Orders. Rather, Mr Bennett (who gave evidence in the NPT Application) explained that that Application was brought because he recognised that there was a reasonable view that the disputed use of the Documents was contrary to the terms of the Orders, and in those circumstances, he regarded it as proper to make the NPT Application to avoid any argument about the issue.

   [5] The NPT Application originally sought additional relief, but that Application was amended on 27 September 2019 to seek only to amend the Orders to permit the use of the Documents for the purpose of preparing and filing the MD Affidavit in the PAD Proceedings.

10. Notwithstanding that the 2019 GA Proceedings have been resolved, Mrs AD's solicitors have indicated that Mrs AD wishes to pursue the s 86 Certificate Application, and the Applicants have indicated that they seek the Tribunal's determination of the NPT Application.

11. For the reasons set out below, the NPT Application will be dismissed.

12. In these reasons, I deal with the following matters:

    1.The Orders made and the use of the Documents permitted by the Orders;

    2.Findings as to how, and the purpose for which, the Documents were in fact used;

    3.Was the disputed use of the Documents permitted by the Orders?

    4.Does the Tribunal have the power to vary its orders nunc pro tunc and if so, what principles govern the NPT Application?

    5.The merits of the application to vary the Orders nunc pro tunc.

1. The Orders made and the use of the Documents which was permitted by the Orders

(a)     The First Access Application and the December 2017 Orders

1. The First Access Application was made on 8 November 2017. Bennett + Co, as the legal representatives of the Applicants, sought access to the application form filed in the Original GA Proceedings, and to all documents, including the medical evidence, filed in the Original GA Proceedings.[6] The reasons why access to those documents was sought were set out in a letter from Bennett + Co to the Tribunal dated 8 November 2017.[7] Bennett + Co advised the Tribunal that the Applicants wished to make an application in the Original GA Proceedings for one or both of them to be appointed, together with Mrs AD, as co-guardians for Mr CD, and as co-administrators of his estate. Bennett + Co also indicated that the Applicants sought access to the specified documents because, as Mr CD's daughters, they wanted 'to be involved and consulted in respect of how [Mr CD's] medical needs are addressed and ensuring his finances are properly managed to provide for his future care', and because 'they are concerned that their father's current level of care is not adequate, and … that he requires a carer … and access to other services to maintain his physical and mental well being'.[8]

   [6] Exhibit 1 pages 12-13 (Affidavit of Martin Lawrence Bennett sworn 21 August 2019, Annexure MLB-1).

   [7] Exhibit 1, pages 10-11 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB-1).

   [8] Exhibit 1, pages 10-11 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB-1).

2. On 15 December 2017, Member Quinlan granted the First Access Application and made the December 2017 Orders which were in the following terms:[9]

   [9] Exhibit 4, page 12 (Affidavit of Taleesha Jayne Conlan Elder, sworn 27 September 2019, Annexure TJE-2).

   1.Bennett + Co's application to access documents specified in this order is granted.

   2.The legal representative of [the Applicants] is authorised to have copies of the documents to which access has been granted.

   3.A copy of this order is to be provided to all parties to whom notice of the proceedings is given.

   Specified documents

   (i)All documents including medical evidence relating to [the Original GA Proceedings].

   Conditions upon which access is granted

   4.Without the prior written approval of the Tribunal, the documents and material to which access is granted may be used only for the purposes of:

   (a)either originating or review proceedings in the Tribunal under the [GA Act] concerning [Mr CD].

   5.For the purposes of the conditions above, Bennett + Co may disclose the contents of the documents and material to [the Applicants] for the purpose of providing legal advice or legal representation relating to the purpose permitted by the conditions, but Bennett + Co shall not make copies of any part of the documents and material or disclose any part of the documents or material to any person.

   6.Bennett + Co must delete all copies of documents and material from the Tribunal within 28 days of the decision in [the Original GA Proceedings] or if there is a review from that decision, within 28 days of the decision made on review.

3. The Documents then provided to Bennett + Co were Mrs AD's application to the Tribunal, a medical report by Dr R dated 28 July 2017, and a medical report by Dr S dated 8 November 2017.[10]

   [10] Exhibit 1, page 3 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, para 9).

4. On 3 January 2018, the Tribunal made orders granting Mrs AD leave to withdraw the Original GA Proceedings and for the withdrawal of those proceedings (the Withdrawal Orders).

(b)     The Second Access Application and the January 2018 Orders

1. On 12 January 2018, Bennett + Co filed the Second Access Application on behalf of the Applicants. They sought access to '[a]ll documents filed since 15 December 2017, including all documents relating to the withdrawal of the proceedings, including any request or application for leave to withdraw the proceedings and any medical evidence relied upon in support of such request or application'.[11] The reasons given for requesting the documents were that the 'documents requested are necessary in order for Bennett + Co to advise [the Applicants] as to whether they should seek a review of [the Withdrawal Orders] … and whether a separate application under the [GA Act] should be made by them.'[12]

   [11] Exhibit 1, page 14 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB-2); Exhibit 4, pages 13-14 (Affidavit of Taleesha Jayne Conlan Elder, sworn 27 September 2019, Annexure TJE­3).

   [12] Exhibit 1, page 15 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB­2).

2. On 17 January 2018, Member Quinlan granted the Second Access Application and made the January 2018 Orders in the following terms:[13]

   [13] Exhibit 4, page 16 (Affidavit of Taleesha Jayne Conlan Elder, sworn 27 September 2019, Annexure TJE­4).

   1.Bennett +Co's application to access documents specified in this order is granted.

   2.The legal representative of [the Applicants] is authorised to have copies of the documents to which access has been granted.

   Specified documents

   3.Letter from Metaxas Legal requesting withdrawal of [the Original GA Proceedings] received 20 December 2017.

   4.Letter from [Dr T] received 27 December 2017.

   Conditions upon which access is granted

   5.Without the prior approval of the Tribunal, the documents and material to which access is granted may be used only for the purposes of:

   (a)either originating or review proceedings in the Tribunal under the [GA Act] concerning [Mr CD].

   6.For the purposes of the conditions above, Bennett + Co may disclose the contents of the documents and material to [the Applicants] for the purpose of providing legal advice or legal representation relating to the purpose permitted by the conditions, but Bennett + Co shall not make copies of any part of the documents and material or disclose any part of the documents or material to any person.

   7.Bennett + Co must delete all copies of documents and material from the Tribunal within 28 days of the decision in [the Original GA Proceedings] or if there is a review from that decision, within 28 days of the decision made on review.

3. The documents specified in the January 2018 Orders were provided to Bennett + Co on 19 January 2018.

(c)     Variation of the Orders

1. The withdrawal of the Original GA Proceedings on 3 January 2018 brought the Original GA Proceedings to an end. Absent a review of the Tribunal's order to permit the withdrawal of the Original GA Proceedings, the Orders required that Bennett + Co delete all copies of the Documents within 28 days of the withdrawal of the Original GA Proceedings.

2. On 31 January 2018, Bennett + Co wrote to the Tribunal and advised that 'on the basis of the [Documents] provided to us, we are instructed to take the preparatory steps necessary to file a further application for guardianship and administration orders in respect of [Mr CD]'.[14] Bennett + Co requested:[15]

   [P]ermission to retain the [Documents] for a further 6 months from today's date for the purposes of preparing the new application. Although it will be necessary for my clients to provide up to date medical evidence at the time of their application, we consider that the historical medical reports will also be relevant.  

   [14] Exhibit 1, page 19 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB-3).

   [15] Exhibit 1, pages 5, 19 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, para 19 and Annexure MLB-3).

3. On 1 February 2018, Ms Elder spoke by telephone with a staff member of the Tribunal. Mr Bennett deposed that that staff member advised that the Tribunal had granted Bennett + Co permission to retain the Documents on the following bases:[16]

   1.Bennett + Co has been granted permission to retain the [Documents] for the purpose of preparing a future application in respect of [Mr CD];

   2.The documents are to be destroyed if [the Applicants] decide not to proceed with an application;

   3.The other orders made in respect of the [Documents] continue to apply.

   [16] Exhibit 1 pages 5, 18 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, para 19 and Annexure MLB­3).

4. Ms Elder recorded the terms of that discussion in an email to the Tribunal of 1 February 2018,[17] in which she also undertook that Bennett + Co would advise the Tribunal if the Applicants decided not to proceed with an application for guardianship and administration orders.[18] Ms Elder requested confirmation from the Tribunal that her understanding of the terms of the additional orders made by the Tribunal were correct. Bennett + Co did not receive a response to that email.[19]  

   [17] Exhibit 1, page 18 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB-3).

   [18] Exhibit 1, page 18 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB-3).

   [19] Exhibit 1, page 17 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB-3).

5. Mr Bennett deposed that, based on the discussion between Ms Elder and the Tribunal staff member, he understood that the Documents were only to be destroyed in the event that the Applicants decided against proceeding with a guardianship and administration application in respect of their father.[20]

   [20] Exhibit 1, page 6 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, para 20).

6. There was no evidence that any formal orders were issued by the Tribunal recording the terms of the further orders Ms Elder deposed had been made by the Tribunal on 1 February 2018 with respect to the Documents. For present purposes, nothing turns on whether formal orders in the terms set out at [22] were made by the Tribunal. It suffices to say that I accept that Mr Bennett and Ms Elder understood that those orders were made, and acted on that basis.

1. On 31 December 2018, Mr Bennett wrote to the Tribunal to advise that his firm had 'proceeded on the basis that the documents provided to Bennett + Co pursuant to the [Orders] were only to be destroyed in the event that [the Applicants] decided against proceeding with a guardianship application of their own'.[21] Mr Bennett further advised that the Applicants:[22]

   [A]re the plaintiffs in [the PAD Application], the outcome of which will inform whether or not they proceed with making their own guardianship application. The decision in their application has been reserved until late January 2019.

   I note that Ms Elder provided an undertaking on behalf of Bennett + Co to inform you if our clients decided against making a guardianship application. I anticipate that our clients will not be in a position to determine whether or not to proceed with such an application until after the resolution of the [PAD Application]. I would therefore be assisted if you could confirm whether our understanding of the permission granted to Bennett + Co on 1 February 2018 is correct. (Original emphasis)

   [21] Exhibit 1, pages 16-17 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB-3)

   [22] Exhibit 1, pages 16-17 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, Annexure MLB-3)

2. On or about 22 January 2019, Bennett + Co was advised that Member Quinlan had granted an extension of the Orders until 1 February 2019.[23]

   [23] Exhibit 3, page 4 (Affidavit of Mhairi Jane Reid Stewart, affirmed 25 September 2019, Annexure MJS­1).

3. On 23 January 2019, Mr Bennett wrote to the Tribunal to advise that he expected there to be a short delay in the delivery of the decision in respect of the PAD Application, and consequently requested a short period of additional time to ensure that the Applicants had the benefit of that decision when making their decision as to whether or not to make an application for guardianship and administration orders in respect of their father. Mr Bennett noted that 'if the [Tribunal] is not minded to further extend the Orders beyond 1 February 2019, please take this correspondence as Bennett + Co's acknowledgment and acceptance of [the Orders] permitting the retention of the [Documents] held by Bennett + Co on the basis that they are destroyed by 1 February 2019'.[24]  

   [24] Exhibit 3, page 4 (Affidavit of Mhairi Jane Reid Stewart, affirmed 25 September 2019, Annexure MJS-1).

4. On 4 February 2019, Mr Bennett wrote to the Tribunal referring to his letter of 23 January 2019. He noted that a 'message [had been] left with our [r]eception on 30 January 2019 advising that the [Documents] … must be destroyed by no later than 1 February 2019'. He advised the Tribunal that all hard copies of the Documents had been destroyed, as had the electronic copies of the Documents.[25]

(d)     What use of the Documents was permitted by the Orders?

[25] Exhibit 3, page 11 (Affidavit of Mhairi Jane Reid Stewart, affirmed 25 September 2019, Annexure MJS-2).

1. In order to determine what use of the Documents was permitted by the Orders it is necessary to construe the terms of the Orders themselves. That exercise of construction starts with the terms of the words used, construed within the context of the circumstances in which the First and Second Access Applications were made.[26] That context includes the application for access, the content of the First and Second Access Applications, the reasons given for why access was sought to the Documents, and the fact that the Documents were held by the Tribunal in connection with the Original GA Proceedings. Furthermore, the Orders must be construed having regard to the statutory framework within which they were made, namely s 112 of the GA Act.

   [26] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2018] WASCA 185 at [58]; Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 at [28]-[29] and [129]-[141].

2. It is convenient to turn, first, to that statutory framework.

Access to documents under the GA Act

1. Access to documents and personal information lodged with, or held by, the Tribunal in relation to proceedings under the GA Act is comprehensively dealt with in s 112 and s 113 of the GA Act. It is convenient to set out those sections in full. Section 112 of the GA Act provides:

   (1)A represented person, a person in respect of whom an application under this Act is made or a person representing any such person in any proceedings commenced under this Act is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to ­

   (a)any document or material lodged with or held by the Tribunal for the purposes of any application in respect of that person;

   (b)any accounts submitted under section 80 by the administrator of the estate of that person.

   (2)Any other party to any proceedings commenced under this Act, or a person representing any such party, is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purpose of those proceedings, other than a document or material that is or contains a medical opinion not being an opinion concerning that party.

   (3)Except as provided in this section, no person (not being a member of the State Administrative Tribunal or a member of staff of the Tribunal) shall, unless he is authorised to do so by order of the Tribunal, inspect or otherwise have access to a document or material lodged with or held by the Tribunal for the purposes of any application, or to any accounts submitted under section 80.

   Penalty: $2 000 or imprisonment for 9 months.

   (4)The State Administrative Tribunal may on the application of any person ­

   (a)by order, authorise any person, whether conditionally or unconditionally, to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purposes of any application; and

   (b)make any other order contemplated by this section.

   (5)An application under subsection (4) may be made ex parte or the State Administrative Tribunal may give directions as to the persons to whom notice of the application shall be given and who shall be entitled to be heard.

2. Section 113 of the GA Act provides:

   (1)No person performing any function under this Act shall, whether directly or indirectly, divulge any personal information obtained in the course of duty relating to a represented person or person in respect of whom an application is made, other than information that he is authorised or required to divulge ­

   (a)in the course of duty;

   (b)by this Act or any other law;

   (c)with the consent of the person, if he is capable of giving consent; or

   (d)in other prescribed circumstances.

   Penalty: $5 000.

   (2)Subsection (1) does not apply to statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.

   (3)The provisions of this section are in addition to, and do not derogate from, the provisions of the State Administrative Tribunal Act 2004 relating to the disclosure of information and documents.

3. Even a cursory glance at s 112 and s 113 of the GA Act discloses immediately the strict requirements of confidentiality imposed in respect of documents and personal information held by the Tribunal in connection with the GA Act. That confidentiality is protected not only by criminal sanctions (under s 112(3) and s 113) but by strictly limited access provisions. The importance of the confidentiality of proceedings under the GA Act is reflected in other provisions of the GA Act. For example, if it is in the best interests of the proposed represented person the Tribunal may close proceedings to the public.[27] Further, it is an offence to publish any account of proceedings under the GA Act which identifies any party, persons related to any party, or any of the witnesses.[28]

   [27] GA Act s 17, Sch 1 cl 11.

   [28] GA Act s 17, Sch 1 cl 12.

4. The nature and extent of these protections for information held by the Tribunal under the GA Act is not surprising. The jurisdiction of the Tribunal under the GA Act is one in which the Tribunal receives personal information of the most sensitive kind.[29] The provisions of the GA Act relating to the confidentiality of that information reinforce two important policies. The first is the protection of the privacy of the persons involved in the proceedings before the Tribunal, and in particular, of the proposed represented person or the represented person (as the case may be). The second is the public interest in the integrity of the Tribunal's processes, which relies on the ability to obtain sensitive information from a variety of sources.[30]  

   [29] MB [2004] WAGAB 25 (MB) at [34]; Re MM (2001) 28 SR (WA) 320 (Re MM) at 332.

   [30] Re MM at 332; KWD [2011] WASAT 4  (KWD) at [91].

5. One of the sources of information available to the Tribunal under the GA Act is the proposed represented person himself or herself. The views of the proposed represented person are one of the considerations to which the Tribunal is obliged to have regard, to the extent that it is possible to obtain those views.[31] If the willingness of proposed represented persons to be frank with the Tribunal in hearings were to be eroded by a lack of confidence in the privacy of their sensitive personal and health information, that would compromise the integrity of the Tribunal's processes.[32]

   [31] GA Act s 4(7).

   [32] KN [2015] WASAT 104; (2015) 88 SR (WA) 76 at [19] (Member Child).

6. Furthermore, medical professionals and service providers (such as social workers, or aged care workers) are regularly asked to provide their opinion in relation to matters relating to the Tribunal's exercise of its functions under the GA Act, such as the capacity of a proposed represented person to make decisions relating to their personal care, or relating to their estate. The Tribunal's ability to exercise its functions under the GA Act is dependent on the willingness of those persons to provide their opinions on such matters. There is no doubt that the candour with which those opinions are expressed, and the willingness of those persons to provide their opinions other than by compulsion, would be jeopardised if the confidentiality of such information was not able to be protected by the Tribunal.

7. In so far as access to documents is concerned, s 112 of the GA Act creates a distinction between three classes of persons. First, the proposed represented person, or the represented person, has a conditional entitlement to access any documents held by the Tribunal in respect to any application made for them, on the basis that they have a right to know the contents of such documents or material.[33] The entitlement to inspection under s 112(1) of the GA Act applies only for purposes related to proceedings before the Tribunal,[34] and the entitlement is, in any event, conditional on the Tribunal making a contrary order.

   [33] KWD at [86].

   [34] Re MM at 332.

8. Secondly, under s 112(2) of the GA Act, a party (other than the proposed represented person, whose position is addressed by s 112(1)) to a proceeding which has not yet been determined[35] has a conditional entitlement to access to any document (other than a document or material containing medical opinion which does not concern that party) for the purpose of the proceeding.[36] That entitlement reflects the need to accord procedural fairness to the parties to a proceeding.[37]  

   [35] MB at [55]; KWD at [75].

   [36] KWD at [87].

   [37] MB at [55]; KWD at [75].

9. A 'proceeding' includes the processes that lead to the making of the final decision by the Tribunal that disposes of the matter raised by an application.[38] (An original application for a guardianship or administration order under s 40 of the GA Act, and any review of the orders made on such application, are treated as distinct and separate proceedings for the purposes of applications under s 112 of the GA Act[39]). Once a proceeding has concluded - with a final determination by the Tribunal - a party to that proceeding no longer has an entitlement to inspect or access documents or material under s 112(2) of the GA Act. Instead, that party may apply to inspect or have access to documents pursuant to s 112(4) of the GA Act.

   [38] KWD at [80].

   [39] KWD at [83].

10. Thirdly, any other persons may apply to inspect or obtain access to documents or materials held by the Tribunal under the GA Act, pursuant to s 112(4), but do so with no entitlement that such inspection or access will be granted.[40] It is apparent that not only is the Tribunal given a discretion which allows it to control who has access to the information, but that the terms of s 112 of the GA Act require the Tribunal to exercise that discretion by considering what controls over access may be required in any given case.[41]  

    [40] KWD at [88].

    [41] Re MM at 332.

11. Under s 112(4) of the GA Act, the Tribunal has a broad discretion on application by any person, or on its own initiative, to allow inspection or access to documents or to withhold access to those documents.[42] That power is not limited in its terms and in an appropriate case may include inspection or access to documents for purposes other than proceedings before the Tribunal.[43]  

    [42] Re MM at 332; MB at [59].

    [43] Re MM at 332; MB at [60].

12. However, given the sensitive and confidential nature of much of the material held by the Tribunal, an applicant who requests the Tribunal to exercise its discretion under s 112(4) of the GA Act for purposes not relating to proceedings before the Tribunal must provide 'very cogent reasons and demonstrate a particular need as to why the inspection should be allowed'.[44] It will not be sufficient to rely on a 'general desire to be informed'.[45] Nor do convenience and cost savings amount to cogent reasons for permitting access to documents under s 112(4) of the GA Act.[46]  

    [44] Re MM at 332; MB at [66], KWD at [90].

    [45] Re MM at 332.

    [46] AB and Public Trustee [2015] WASAT 68 at [29]­[30] (Curthoys J).

13. Applicants under s 112(4) of the GA Act - whether members of the public, or persons who were parties to proceedings of the Tribunal which have been determined and who seek access to documents or materials in relation to those proceedings - have no 'anticipatory entitlement' to inspect or otherwise have access to documents under that subsection.[47] Instead, it is for the Tribunal in every case to decide if there are very good reasons to permit inspection or access having regard to the facts and circumstances raised in the application before it.[48]

    [47] KWD at [88].

    [48] MB at [67].

14. Section 112(4) of the GA Act is not limited to applications to inspect or access documents or materials in pending applications, or which are sought for the purposes of determining an application before the Tribunal.[49] The Tribunal may permit a person to inspect or have access both to documents or materials that relate to an application pending before the Tribunal, and which relate to applications which have been determined.[50] However, in exercising its discretion to grant access to documents for use other than in a proceeding under the GA Act, the Tribunal should act cautiously.[51] In determining an application under s 112(4) of the GA Act, the Tribunal will weigh up the cogency of the reasons given for seeking access, on the one hand, and any factors which weigh against the grant of access, on the other hand.

    [49] Cf MB at [65].

    [50] MB at [63]­[65].

    [51] KWD at [89].

15. Bearing this statutory framework in mind, I return to consider the meaning of the terms used in each of the Orders, which are identical in all material respects.

The terms of the Orders

1. Five features of the relevant terms of the Orders may be noted. First, each of the Orders permitted the Documents to be used only for the purposes specified in the Orders. The word 'only' as used in the context of the Orders bears the meaning 'without others or anything further; alone; solely', 'no more than', 'singly; as the only one', and 'exclusively'.[52] In other words, it denotes that the Documents may be used exclusively for the purposes specified, and for no other purposes.

   [52] Macquarie Dictionary Online.

2. Secondly, the Orders specified two purposes for which the Documents might be used: either originating or review proceedings in the Tribunal under the GA Act concerning Mr CD. Viewed in the surrounding context, the only originating or review proceedings in contemplation were the Original GA Proceedings brought by Mrs AD, any application filed by the Applicants under s 40 of the GA Act seeking guardianship and/or administration orders in respect of Mr CD, or any review of any decision made by the Tribunal in respect of such applications.

3. Thirdly, the Orders authorised the use of the Documents 'for the purposes of' the specified proceedings. In the context of the Orders, the meaning of the word 'purpose' is 'the object for which anything exists or is done, made, used etc' and 'an intended or desired result; end or aim'.[53] The purpose is, therefore, the consequence intended to result from some action.[54]

   [53] Macquarie Dictionary Online. 

   [54] Cf Mills v Commissioner of Taxation [2012] HCA 51; 250 CLR 171 [63] (Gageler J, French CJ, Hayne, Kiefel and Bell JJ agreeing).

4. Fourthly, Bennett + Co were not given authority to use the Documents in any way, provided that that use was for the purposes specified. Instead, Bennett + Co were permitted to disclose the contents of the Documents to the Applicants for the purpose of (that is, with the object of) providing legal advice to the Applicants relating to originating or review proceedings in the Tribunal under the GA Act in relation to Mr CD, or to represent the Applicants in such proceedings. Furthermore, Bennett + Co were expressly prohibited from making further copies of the Documents or from disclosing any part of the Documents to any other person. If any use of the Documents in proceedings outside the Tribunal had been contemplated by the Orders, the prohibition on making copies of the Documents (for example, to file as evidence in those proceedings) would likely be impractical, if not unworkable. On the other hand, the prohibition on making copies of the Documents is entirely consistent with the contemplated use of the Documents only in proceedings under the GA Act in the Tribunal in relation to Mr CD. In that case, there would be no need for the Applicants to file copies of the Documents in such proceedings, because the Documents would be located on the Tribunal's file in relation to Mr CD. Furthermore, the Tribunal would, in the course of any such proceedings, be able to permit any other party to such proceedings to inspect or have access to the Documents, either as of right, or on such terms as the Tribunal saw fit, pursuant to s 112 of the GA Act.

5. Finally, the Orders made clear that no other use of the Documents was permitted 'without the prior written approval of the Tribunal'. That limitation served to emphasise both the limited use of the Documents which was permitted, and the strict obligation imposed by the conditions attaching to the use of the Documents under the Orders. It was, therefore, clear that the Tribunal sought to retain a strict control over the proposed use of the Documents, and over any other use which was outside the purpose expressly authorised.

6. The adoption of a narrow, rather than an expansive, view of the meaning of the Orders is also consistent with the structure of s 112 of the GA Act, and the principles which have been developed by the Tribunal in relation to the grant of access to documents pursuant to that section of the GA Act. To my mind, to the extent that any constructional choice exists in respect of the meaning of the words used in the Orders, especially in relation to the purpose for which the Documents could be used, those considerations support the conclusion that a narrow construction of the words used is warranted.

1. The circumstances surrounding the First and Second Access Application also support a narrow construction of the words used to identify the purposes for which the Orders permitted the Documents to be used. The most significant of those circumstances are the reasons given by Bennett + Co for seeking access to the Documents. In the First Access Application, the stated reasons were that the Applicants wished to make an application, in the Original GA Proceedings, to be appointed co-guardian and co-administrator, along with Mrs AD, and to ensure their father's needs were properly met. In the Second Access Application, which was made after the Original GA Proceedings were withdrawn, Bennett + Co advised the Tribunal that further Documents were sought to enable Bennett + Co to advise the Applicants whether they should seek a review of the Withdrawal Orders or to make a separate application under the GA Act for guardianship and administration orders in respect of Mr CD. Nothing in those reasons provided any hint that access to the Documents was sought in order to obtain information to be used for the purpose of proceedings in the Supreme Court.

2. A final aspect of the surrounding circumstances is that the First and Second Access Applications were made by Bennett + Co, in their capacity as the legal representatives of the Applicants in the Original GA Proceedings.  That is significant because while the Applicants were bound by the Orders in relation to the use of the Documents, ultimately it was Bennett + Co, and not the Applicants, to which particular obligations in the Orders, concerning the disclosure, copying and destruction of the Documents, were directed.

3. Having regard to all of these considerations which bear upon the proper construction of the Orders, I am satisfied that the Orders permitted the Applicants, represented by Bennett + Co, to:

   (a) use the Documents

   (b)only (that is, solely, or exclusively)

   (c)for the purposes of (that is, with the object of)

   (d)proceedings in the Tribunal concerning Mr CD (whether those proceedings were the Original GA Proceedings,  or proceedings commenced by the Applicants in the Tribunal for guardianship and/or administration orders in respect of Mr CD, or any review thereof),

   and for those purposes (that is, for the purpose of any proceedings in the Tribunal concerning Mr CD), Bennett + Co was permitted to

   (e)disclose the contents of the Documents to the Applicants (but not to copy the Documents)

   (f)for the purpose of (that is, with the object of)

   (g)providing the Applicants with legal advice, or legal representation, relating to proceedings in the Tribunal concerning Mr CD.

4. In practical terms, the Orders permitted Bennett + Co to disclose the contents of the Documents to the Applicants (but not to copy the Documents) for the purpose of providing the Applicants with advice in relation to whether to participate in the Original GA Proceedings, or to commence their own proceedings under the GA Act in relation to Mr CD, or to seek a review of any decision in such proceedings, and in that event, to be legally represented in those proceedings. Further, the only 'proceedings' for which the Orders contemplated the Documents could be used were proceedings in the Tribunal.

5. I turn, next, to make findings as to how the Documents were, in fact, used.

1. Findings as to how, and the purpose for which, the Documents were in fact used

(a)     The PAD Application

1. In the PAD Application, the Applicants sought discovery from the PAD defendants of documents relating to the legal capacity and mental health of Mr CD.[55]  The Applicants filed the MD Affidavit in support of the PAD Application.[56]  

   [55] Exhibit 6, pages 5-7 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, Annexure PMT1).

   [56] Exhibit 6, pages 8-35 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, Annexure PMT2).

2. In the MD Affidavit, Ms MD deposed that the Applicants were concerned that their father may no longer have legal capacity, with the result that:  his office as a director of a company which was the trustee of a charitable trust (Company) had become vacant pursuant to the constitution of the Company; that a circular resolution of members of the Company, which was signed by the PAD defendants, and which purported to remove the Applicants as directors of the Company, may not be valid; and that the Applicants would have succeeded their father as appointors of the trustee of the charitable trust pursuant to the terms of the deed of appointment.[57]  

   [57] Exhibit 6, page 15 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, para 25).

3. Ms MD deposed to her understanding that if Mr CD lacked capacity, the Applicants would be able to pursue four causes of action, namely:[58]

   (a)for a declaration as to Mr CD's incapacity (with the result that by virtue of the operation of the constitution of the Company, he would cease to be a director) (first possible cause of action);

   (b)for orders appointing a guardian and administrator in respect of Mr CD's estate (second possible cause of action);

   (c)for orders to reinstate them as directors of the Company (third possible cause of action); and

   (d)for specific performance of the deed of appointment for the Company (fourth possible cause of action).

   [58] Exhibit 6, page 16 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, para 29).

4. Ms MD deposed that without access to medical reports relating to her father's capacity, which had been obtained by the PAD defendants, she did not have sufficient information to decide whether to commence proceedings.[59]  Ms MD also deposed that the Applicants:[60]

   [A]re in what I consider to be an invidious position, both in respect to how our genuine concerns have apparently upset our father and our need to see the medical reports in order to confirm whether our father has capacity.

   We have been cautious in bringing [the PAD Application] (and are very cautious in determining whether we should commence substantive proceedings) as we dearly love our father, want the best for him … and want to avoid litigation.  I do not understand why [the PAD defendants] have refused to let us see the medical reports if they confirm my father's capacity.

   [59] Exhibit 6, page 16 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, para 32).

   [60] Exhibit 6, page 35 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, para 107).

5. In so far as the Applicants relied on the first possible cause of action, it was quickly conceded in the course of the PAD Application,[61] that that possible cause of action was not in fact relied on as a separate cause of action at all, but rather was contemplated as a form of ancillary relief.  Mr Bennett described the first possible cause of action as a 'pleader's flourish'.[62]  I find that in the course of the PAD Application, the Applicants abandoned any reliance on the first possible cause of action. 

   [61] Exhibit 6, page 44 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, Annexure PMT-3).

   [62] ts 60, 25 October 2019.

6. The Applicants' reliance on the second possible cause of action was disputed by the PAD defendants in the PAD Application.  In the course of the NPT Application, counsel for Mrs AD also disputed whether it was open to the Applicants to rely on the second possible cause of action.  He also contended that by their conduct of the NPT Application, the Applicants abandoned reliance on the second possible cause of action, and in truth relied only on the third and fourth possible causes of action. 

7. I deal with these arguments further below. For the reasons I there explain, it suffices to say that the Applicants sought access to documents in the PAD Application for the purposes of considering whether to pursue the second, third and fourth possible causes of action, and I so find.  I also find that while the Applicants ultimately focused primarily on the third possible cause of action for the purposes of the PAD Application, they did not abandon any reliance on the second or fourth possible causes of action. 

8. The PAD Application was resolved in the Applicants' favour, on the basis that the Applicants had a possible cause of action against the Company and the PAD defendants, and that other discretionary factors favoured an order for pre-action discovery.[63]  

(b)     Were the Documents used in the preparation of the MD Affidavit, and to what extent?

[63] [Suppressed].

1. Prior to the hearing of the NPT Application, the Applicants did not expressly concede that the Documents had been used in the preparation of the MD Affidavit.  Nor was there any concession as to the extent to which the information set out in the MD Affidavit was drawn from the Documents. Instead, the evidence led by the Applicants on the NPT Application focused on establishing that the information in the MD Affidavit ­ including references to the Documents themselves in that Affidavit - was derived from sources independent of the Documents.  Furthermore, in the course of the written submissions which were initially filed on their behalf, the Applicants sought to suggest that it was possible that none of the information in the MD Affidavit had been derived from the Documents.[64]  

   [64] Applicants' submissions, dated 27 September 2019, para 76.

2. It was not until the hearing of the NPT Application was underway that counsel for the Applicants acknowledged that the Documents were used in the preparation of the MD Affidavit[65] and conceded that particular information in the MD Affidavit was derived from the Documents.  Counsel for the Applicants acknowledged that the suggestion to the contrary in the Applicants' earlier submissions was not accurate, and he withdrew it.[66]  

The process by which the MD Affidavit was prepared and how the Documents were used in the preparation of that Affidavit

[65] ts 19, 25 October 2019.

[66] Applicants' Reply Submissions to Further Submissions of Third Interested Party, dated 15 November 2019, para 7.

1. There was no direct evidence from the Applicants as to precisely what had occurred in the preparation of the MD Affidavit, nor was there any express or precise concession as to the extent to which the facts set out by Ms MD, reflected, or recited, information she had obtained from the Documents. 

2. Statements by Ms MD in the MD Affidavit support the conclusion that the contents of the Documents were disclosed to her, but that she was not shown copies of the Documents.  Ms MD deposed that Bennett + Co had informed her about the Original GA Proceedings, and about the contents of two medical reports which were attached to Mrs AD's application in the Original GA Proceedings.[67]  Ms MD also deposed that she had been informed by Bennett + Co that while they had obtained copies of documents from the Tribunal, and that the Orders permitted Bennett + Co to inform the Applicants of the content of those documents, the Orders prevented them from supplying the Applicants with copies of those documents.[68]  

   [67] Exhibit 6, page 17 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, Annexure PMT-2, paras 38.2-38.6).

   [68] Exhibit 6, page 17 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019 Annexure PMT-2, para 38.1).

3. Ms Elder's evidence was that she assisted with the preparation of the PAD Application, and was responsible for drafting the MD Affidavit, under Mr Bennett's supervision.[69]  Ms Elder did not make any express admission about the use of the Documents in the preparation of the MD Affidavit, but it is apparent from her affidavit that the Documents were used in the preparation of that Affidavit.  Ms Elder noted that a draft of the MD Affidavit contained references to the Documents, and those references were left in the Affidavit.[70]  

   [69] Exhibit 4, pages 4-5 (Affidavit of Taleesha Jayne Conlan Elder, sworn 27 September 2019, paras 13 and 22).

   [70] Exhibit 4, pages 6-7 (Affidavit of Taleesha Jayne Conlan Elder, sworn 27 September 2019, paras 26-27).

4. While Mr Bennett's evidence was that he had no direct involvement in drafting the MD Affidavit, he understood that the contents of the Documents had been disclosed to Ms MD, but not the Documents themselves.[71] His evidence was that while he understood that the Documents could not be shown to the Applicants, their contents could be disclosed to the Applicants,[72] and there was no limitation on the manner by which the contents of the Documents could be disclosed.[73]  

   [71] ts 43-44, 63, 25 October 2019.

   [72] ts 43, 25 October 2019.

   [73] ts 74, 25 October 2019.

5. There was no evidence that solicitors from Bennett + Co showed the Documents to the Applicants at any stage or provided them with copies of the Documents.  Having regard to the unchallenged evidence of Ms MD, I am satisfied on the balance of probabilities, and I find, that the Applicants were not shown copies of the Documents or provided with copies of the Documents.

6. The available evidence is consistent with the conclusion that Ms Elder, who had the carriage of the matter, subject to Mr Bennett's supervision, disclosed the contents of the Documents to Ms MD in the course of the preparation of the MD Affidavit.  However, Ms Elder's affidavit did not set out in detail precisely what she did in assisting Ms MD to prepare the MD Affidavit ­ namely, whether she summarised the substance of the Documents to the Applicants or read out the whole of the Documents verbatim.  To my mind, it matters not whether the Documents were read out verbatim or their content merely summarised to the Applicants.  The Orders contemplated that the Documents could be disclosed to the Applicants (provided that disclosure was only for the purposes permitted by the Orders) but prohibited copies being made of the Documents.  Assuming that the Documents were used only for the purposes permitted by the Orders, there was no limitation on the extent to which the contents of the Documents could be disclosed to the Applicants.  In that context, the prohibition in the Orders on making copies of the Documents should be understood as a means of providing an additional level of protection for the confidentiality of the Documents, by restricting the dissemination of copies of the Documents.  It is, therefore, unnecessary to make a finding as to how the contents of the Documents were conveyed to the Applicants.  It suffices to say that the evidence permits the inference that Ms Elder disclosed at least the entirety of the substance of the Documents to Ms MD, in the course of the preparation of the MD Affidavit, and I so find.

The extent to which information from the Documents was used in the MD Affidavit

1. As I have already observed, the evidence filed on behalf of the Applicants focussed on demonstrating that information in the MD Affidavit was not drawn from the Documents.

2. Both Ms Elder and Mr Bennett stated, in their affidavits, that the MD Affidavit made reference to, but did not itself disclose, some of the Documents.  For example, Mr Bennett noted that the MD Affidavit referred to the application made by Mrs AD in the Original GA Proceedings, to Dr R's report, to a report by Dr S dated 8 November 2017, to the withdrawal of the Original Application, to the subject of the Second Access Application, and to the January 2018 Orders.[74]  

   [74] Exhibit 1, page 8 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, paras 27-28).

3. Mr Bennett deposed that certain facts - the existence of the Original GA Proceedings, that the Original GA Proceedings were supported by reports from two specialist doctors, that the Original GA Proceedings were withdrawn on the basis of a recent medical test in Mr CD's favour, and the identity of the medical practitioners who had assessed Mr CD - were made known to the Applicants by Mrs AD and/or Mr CD, other than through the Original GA Proceedings, and independently of the grant of access to the Documents.[75]

   [75] Exhibit 1, pages 8 and 21-24 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, paras 26 and 29, Annexures MLB-4 and MLB-5).

4. Mr Bennett also gave evidence of conversations with the Applicants in which they advised him of information they had obtained from other sources.  Mr Bennett deposed that in the course of preparing her affidavit, Ms MD had informed Bennett + Co of certain information about her father's treating medical practitioners (namely, Dr W and Dr S), and of conversations between the Applicants and Mrs AD, and emails to the Applicants from Mrs AD and Mr CD, in which the Applicants were informed that Mr CD had been referred to a second specialist, and that a hearing in the Tribunal had not been pursued because a more recent medical test had been in Mr CD's favour.[76]  Mr Bennett also deposed that on around 5 February 2018,[77] Ms KD informed Ms MD and Bennett + Co staff that on the previous day she had met with Mr CD and Mrs AD and had been informed of certain information relevant to the withdrawal of the Original GA Proceedings, including that two doctors, namely Dr W and Dr T, had confirmed Mr CD's mental health.[78]

   [76] Exhibit 1, pages 6-7 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, para 24).

   [77] Mr Bennett's affidavit did not refer to the precise date (by year) but the context suggests that the meeting was held on 5 February 2018.

   [78] Exhibit 1, page 7 (Affidavit of Martin Lawrence Bennett, sworn 21 August 2019, para 25).

5. However, in the course of the hearing of the NPT Application, counsel for the Applicants accepted that the facts to which Ms MD deposed in the MD Affidavit went beyond the scope of the discussions she had had with Mr CD and Mrs AD, and that the MD Affidavit referred to matters that came to Ms MD's knowledge as a result of access to the Documents.[79]  

   [79] ts 19, 25 October 2019.

6. It was not until the Applicants' closing written submissions were filed that the Applicants expressly conceded which facts in the MD Affidavit were drawn from the Documents, namely those to which she referred at para 38 of the MD Affidavit.[80]  

   [80] Applicants' Reply Submissions to Further Submissions of Third Interested Party, dated 15 November 2019, para 6.

7. Those facts, in summary, were:  that Mrs AD made an application in the Original GA Proceedings, the orders sought, and the basis for that application; that that application relied on the reports of Dr R and Dr S; the opinions set out in the reports of Dr R and Dr S as to Mr CD's mental capacity, and as to his ability to make decisions in relation to particular matters; and the testing undertaken by Dr R as the basis for her diagnosis.[81]  I find that the Applicants used the Documents as the source of the information which was the basis for those facts set out in the MD Affidavit. 

   [81] Exhibit 6, pages 17­18 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, Annexure PMT­2, para 38).

8. Counsel for Mrs AD was critical of the Applicants' approach to the NPT Application, and submitted that because of the deficit in the Applicants' evidence it had been made impossible for the Tribunal to come to an understanding of the central facts concerning the use of the Documents.[82]  In evaluating that submission, all of the circumstances need to be borne in mind.  The Documents themselves were not put into evidence.  Bennett + Co no longer had copies of the Documents (the unchallenged evidence being that they had destroyed their copies of the Documents, in accordance with the Orders[83]).  Mrs AD did not seek to tender copies of the Documents, nor invite the Tribunal to inform itself by having regard to copies of the Documents on the Tribunal's files, for the purposes of making a comparison between the content of the MD Affidavit and the Documents. 

   [82] Further Submissions of Third Interested Party, dated 13 November 2019, para 7.

   [83] Exhibit 3, pages 11-12 (Affidavit of Mhairi Jane Reid Stewart, affirmed 25 September 2019, Annexure MJS-2).

1. In the end, the concessions made by counsel for the Applicants permitted the Tribunal to make findings as to the extent to which the Documents were the source of the information to which Ms MD deposed in the MD Affidavit.

2. Counsel for Mrs AD also submitted that Bennett + Co had not been frank with the Tribunal in relation to the circumstances of the preparation of the MD Affidavit.[84] Mr Bennett rejected that contention in his evidence.[85]  

   [84] ts 27, 15 November 2019; Further Submissions of Third Interested Party, dated 13 November 2019, para 10.

   [85] ts 73, 25 October 2019.

3. Counsel for the Applicants sought to defend the approach taken by the Applicants to the evidence on the NPT Application.  He submitted that Mrs AD had not, prior to the hearing of the NPT Application, or in the course of the submissions filed on her behalf, particularised the matters she intended to put against the Applicants regarding the use of the Documents.  In those circumstances, he submitted, there could be no criticism of the Applicants on the basis that their evidence did not fully address how the information from the Documents was conveyed to Ms MD and how that information was reproduced in the MD Affidavit.[86]  With respect, that submission ignored the fact that in the NPT Application, the Applicants sought the indulgence of the Tribunal to vary the Orders nunc pro tunc so as to permit them to use the Documents for the purpose of preparing the MD Affidavit for use in the PAD Application.  In those circumstances, the Tribunal was entitled to expect full and frank disclosure of how the Documents had in fact been used, irrespective of whether the Applicants or Mr Bennett considered that there had in fact been a breach of the Orders in that use or what Mrs AD might contend about that use.

   [86] Applicants' Reply Submissions, dated 15 November 2019, para 4.

4. That having been said, to the extent that the lack of candour in the evidence adduced on behalf of the Applicants is relevant to any exercise of discretion on the NPT Application, the circumstances in which the NPT Application was made cannot be ignored.  Prior to making the NPT Application, the Applicants had been put on notice that it was likely that contempt proceedings would be pursued against them by Mrs AD.  Having regard to those circumstances, and to the content of the affidavits on which the Applicants relied in support of the NPT Application, it is more likely than not, and I find, that the Applicants disclosed only the minimum information about their use of the Documents that they considered was required to support the NPT Application, while being mindful that that disclosure would likely be scrutinised by Mrs AD's solicitors for the purpose of obtaining evidence for use in any contempt proceedings.  Those circumstances explain, although they do not justify, the absence of complete candour in the evidence concerning the preparation of the MD Affidavit which was adduced on behalf of the Applicants in the NPT Application. 

The disputed use of the Documents

1. The parties' characterisations of the disputed use of the Documents differed. The Applicants characterised the disputed use of the Documents as confined to the preparation and filing of the MD Affidavit, and hence the NPT Application sought a variation of the Orders to permit the Documents to be used for that use only. 

2. In contrast, Mrs AD contended that the Documents were not only used to prepare and file the MD Affidavit in the Supreme Court, but that the information in the Documents was thereby used in further ways, in that the MD Affidavit itself was then relied upon by the Applicants in their written submissions in support of the PAD Application, was read into evidence at the hearing, and was relied on in oral submissions in the course of the hearing of the PAD Application.[87]  The contention thus was that by virtue of the use made of the MD Affidavit, the Documents were used by the Applicants to support the PAD Application. 

   [87] Responsive Submissions of Third Interested Party, dated 14 October 2016, para 7.

3. The use of the Documents to prepare and file the MD Affidavit cannot be viewed in isolation from the use to which that Affidavit was then put.  In my view, the proper characterisation of the disputed use of the Documents is that they were used to prepare the MD Affidavit, and specifically were the source of some of the information set out in that Affidavit, which was then filed, and relied upon by the Applicants, in support of the PAD Application. 

The Applicants' consideration of the Orders

1. There was limited evidence as to whether, and the extent to which, the Applicants had been informed of the terms of the Orders, and in particular, of the limitations the Orders imposed on the use of the Documents, so that they could consider how those Orders might impact on their use of the Documents as the source of information for inclusion in the MD Affidavit. 

2. However, in my view, the evidence permits the inference that the Applicants were aware of the Orders, and the terms thereof, for the following reasons.  First, the First Access Application and the Second Access Application were made by Bennett + Co expressly in their capacity as the legal representatives of the Applicants.  It can reasonably be assumed that Bennett + Co would have provided their clients with a copy of the Orders made in response to the First and Second Access Applications, which were made on their behalf, or at the least, informed the Applicants of the terms of those Orders.  In any event, the Orders required that a copy of those Orders be provided to all parties to whom notice of the Original GA Proceedings was given, and thus to the Applicants themselves.  Furthermore, in the MD Affidavit, Ms MD deposed that she had been informed by Bennett + Co that the Orders permitted Bennett + Co to disclose the contents of the Documents to the Applicants, but prevented them from supplying them with copies of the Documents.[88]  By inference from all of this evidence, I find that the Applicants were aware of the Orders, and the terms thereof.

   [88] Exhibit 6, page 17 (Affidavit of Phatcha Mintie Tantiprasut, sworn 14 October 2019, Annexure PMT-2, para 38).

3. Counsel for the Applicants was at pains to emphasise that 'the evidence clearly establishes only one thing, that is, what happened was as a consequence of what the legal practitioners did, not the Applicants'.[89]   However, it was Ms MD who used the Documents as the source of some of the information she included in the MD Affidavit.  In turn, the Applicants relied on the MD Affidavit in support of the PAD Application.  There was also no evidence that Bennett + Co had acted other than in accordance with the instructions of the Applicants.  Accordingly, while it was the Applicants who used the Documents to prepare the MD Affidavit, and thus to support the PAD Application, the submission by counsel for the Applicants appeared to imply that they did so on the basis of legal advice. 

   [89] ts 9, 25 October 2019.

4. In circumstances where the evidence suggested that the Applicants were given only such information about the Documents as Bennett + Co determined should be given to them, and in the absence of any evidence to suggest that the Applicants acted independently of, or contrary to, any legal advice from Bennett + Co in relation to the use of the Documents, it may be inferred, and on that basis I find, that the Applicants used the Documents on the basis of, and in accordance with, the legal advice from their lawyers at Bennett + Co, to the effect that the disputed use of the Documents was permitted by the Orders.

The purpose for the disputed use of the Documents

1. The next question is to determine the purpose for the disputed use of the Documents.   

2. Counsel for the Applicants submitted that when ascertaining the purpose for which the Documents were used, it was appropriate to look at the subjective intentions of the parties involved ­ what was their actual purpose.[90]  However, he acknowledged that it was open to the Tribunal to consider their evidence using an 'objective lens' to determine whether or not to accept it.[91]  

   [90] ts 7, 15 November 2019.

   [91] ts 8, 15 November 2019.

3. Counsel for the Applicants then submitted that 'where the order in its terms, authorises something to be done for a purpose, then you look at the actual purpose of the person who undertakes the act and see whether that conforms with the intended purpose [-] [w]hat they purported to do and whether that conforms with the objective analysis.'[92]  In short, his submission was that 'on this [O]rder which authorises something to be done for a purpose ­ if that is the purpose of the person who has done it then they fall within the scope of the order'.[93]  However, he also eschewed the proposition that if the parties concerned were mistaken as to the purpose permitted by the Orders that that would protect them from a finding that they had acted outside the terms of the Orders.[94]   In any event, counsel for the Applicants submitted that even if the purpose for the disputed use fell to be objectively assessed, the purpose of the solicitors involved (that is, Mr Bennett and Ms Elder), judged objectively, was the same as their subjective purpose.[95] 

   [92] ts 9, 15 November 2019.

   [93] ts 10, 15 November 2019.

   [94] ts 10, 15 November 2019.

   [95] ts 8, 15 November 2019.

4. In the end, there appeared to be little disagreement as to the purpose or purposes for the disputed use of the Documents.  There is no dispute that the Applicants used the Documents in support of the PAD Application.  And it was accepted that the PAD Application was brought for the purpose of obtaining discovery from the PAD defendants, to permit the Applicants to consider whether to pursue the possible causes of action identified in the MD Affidavit.[96] Accordingly, it can be said that the Documents were used for the purpose of pursuing the PAD Application, and thus for the purpose of assisting the Applicants to obtain an order for the discovery of other documents from the PAD defendants, to enable the Applicants to decide whether to pursue any or all of the possible causes of action referred to at [60] above. That may amount to use for one purpose (to obtain discovery to permit consideration of all of those possible causes of action) or use for more than one purpose (namely to obtain discovery to permit consideration of each of the possible causes of action). The end result, in my view, is the same.

   [96] Applicants' submissions, dated 25 September 2019, paras 36 and 64; and Responsive Submissions of Third Interested Party submissions, dated 14 October 2019, para 48.

5. The area of disagreement concerned whether the disputed use of the Documents for this purpose or purposes was permitted by the Orders.  The Applicants contended that the purpose for the use of the Documents fell within the purposes for which the Orders permitted the Documents to be used.  I turn next to consider that part of the Applicants' case.

1. Was the disputed use of the Documents one which was permitted by the Orders?

1. Counsel for the Applicants acknowledged that when the PAD Application was made, there were no proceedings on foot in the Tribunal.[97]  He acknowledged that the PAD Application could have nothing to do with the Original GA Proceedings, which had been discontinued by the time the PAD Application was made.[98]  

   [97] ts 21, 25 October 2019.

   [98] ts 23, 25 October 2019.

2. While counsel for the Applicants did not concede that the Documents had been used for a purpose which was not permitted by the Orders, he did concede that 'there is a very respectable argument' to that effect.[99]  

   [99] ts 25, 25 October 2019.

3. Nevertheless, the Applicants' primary case, which was maintained throughout the hearing of the NPT Application, was that the NPT Application was, strictly speaking, unnecessary, because the disputed use of the Documents for the purpose of enabling the Applicants to obtain an order for the discovery of documents from the PAD defendants fell within the purposes for which the Orders permitted the Documents to be used. The argument, in short, was that the Applicants sought discovery of documents which would assist them to decide whether to pursue the second possible cause of action identified in the MD Affidavit, namely to commence an application under the GA Act for guardianship and administration orders for their father. In so far as the disputed use of the Documents was for the purpose of enabling the Applicants to consider whether to pursue the third and fourth possible causes of action, the Applicants' case was that those causes of action were related to the second possible cause of action, in that the second, third and fourth possible causes of action proceeded from the same starting point ­ namely, a determination by the Tribunal as to whether Mr CD had the capacity to make particular decisions - and that the third and fourth possible causes of action could not be pursued unless and until the second possible cause of action was pursued.

4. For the reasons outlined below, the Applicants' primary case was without merit.  The disputed use of the Documents for the purpose of enabling the Applicants to consider whether to pursue the third and fourth possible causes of action was clearly outside the purposes for which the Orders permitted the Documents to be used.  That being the case, it matters not, as I explain below, whether the disputed use of the Documents for the purpose of enabling the Applicants to consider whether to pursue the second possible cause of action was permitted by the Orders. 

(a)     The consideration given by Ms Elder and Mr Bennett to the purposes for which the Documents could be used

1. It is appropriate to consider, at the outset, the evidence as to how the Applicants' lawyers at Bennett + Co, namely Ms Elder and Mr Bennett, reached the view that the disputed use of the Documents was permitted by the Orders. 

2. There is no doubt that Ms Elder and Mr Bennett had regard to the terms of the Orders in the course of drafting of the MD Affidavit for use in the PAD Application.  In her affidavit, Ms Elder deposed that in drafting the MD Affidavit, she had regard to the Orders 'and the extent to which reference could be made to certain information in the [MD Affidavit]' and also had regard to 'whether it was necessary to make an application for leave to use (or refer to) the [Documents] in the [PAD Application]'.[100]  

   [100] Exhibit 4, pages 5-6 (Affidavit of Taleesha Jayne Conlan Elder, sworn 27 September 2019, para 23).

3. Ms Elder's evidence in this respect was unchallenged, and I set it out in full:[101]

   I considered whether the [PAD Application] fell within a purpose for which access was granted; that is, for the purpose of bringing originating proceedings in the Tribunal under the [GA Act] concerning [Mr CD].  I formed the view that it likely did.

   In the weeks leading up to the filing of the [PAD Application], I raised with Mr Bennett the issue of referring to the [Documents] in the [MD Affidavit] given the terms of the [December 2017 Orders and January 2018 Orders] made by the Tribunal.  I can no longer recall the particulars of how I raised the issue or Mr Bennett's response, but following this I understood that Mr Bennett's view was that we were able to refer to the information contained in the [Documents] in the [MD Affidavit].

   In or about the week prior to finalising the [MD Affidavit], I took the latest draft of the [MD Affidavit] and a copy of the [December 2017 and January 2018 Orders] to Mr Bennett.  At this point in time, Mr Bennett had already reviewed several drafts of the [MD Affidavit] which included the references to the [Documents].

   I asked Mr Bennett words to the effect to confirm that he was of the view that we were able to refer to the [Documents].  In my presence Mr Bennett read the [December 2017 Orders and the January 2018 Orders] (I cannot recall whether he also re-read a relevant portion of the [MD Affidavit]) and said words to the effect that yes, we should leave the references to the [Documents] in the [MD Affidavit].

   [101] Exhibit 4, page 6 (Affidavit of Taleesha Jayne Conlan Elder, sworn 27 September 2019, para 24).

4. Ms Elder's evidence establishes, and I find, that Ms Elder was conscious of the limited use of the Documents which was permitted under the Orders, and that she formed the view that the disputed use of the Documents was 'likely' to be within the scope of the Orders. 

5. I also find that notwithstanding that she held that view, Ms Elder was clearly alert to the possibility that a contrary view of the Orders was open, namely that the disputed use of the Documents may not be permitted by the Orders.  It is apparent from her evidence that Ms Elder was not certain that the Orders permitted the use of the Documents in that way.

6. It is clear that Ms Elder was cognisant of the importance of compliance with the Orders, and moreover was sufficiently concerned about the possibility that the Orders might not permit the disputed use of the Documents, that she specifically drew the issue to Mr Bennett's attention on two (or at least two) occasions. 

7. I accept Ms Elder's evidence, and I find, that on each occasion when she raised the issue with Mr Bennett, he gave consideration to the terms of the Orders (on the last occasion, by reading the Orders themselves) and expressed the view that references to the Documents, or information from the Documents, could be included in the MD Affidavit, and thus that the Documents could be used for the disputed use above. 

8. Finally, having regard to the evidence of Ms Elder, it is also apparent, and I find, that it was the view of Mr Bennett (who was Ms Elder's principal) as to whether the disputed use of the Documents was permitted by the Orders which determined the approach taken by the lawyers at Bennett + Co to that use of the Documents.

(b)     Mr Bennett's explanation as to why the disputed use of the Documents was for a purpose or purposes permitted by the Orders

1. Mr Bennett acknowledged that he understood the December 2017 Orders to limit the use to which the Documents could be put.[102]   He accepted that he knew at all times that the only purpose for which the Documents could be used was the purpose set out in para 4(a) of the December 2017 Orders.[103]  

   [102] ts 42, 25 October 2019.

   [103] ts 42, 25 October 2019.

2. The same purpose was also reflected in para 5(a) of the January 2018 Orders.  Mr Bennett confirmed that when the January 2018 Orders were made, Bennett + Co gave two reasons for seeking to use the Documents:  to give advice to the Applicants in respect of the Original GA Proceedings, or make their own application for guardianship and administration orders.[104]  His understanding of the effect of the January 2018 Orders was that Bennett + Co had been granted permission to retain the Documents for the purpose of preparing a future application to the Tribunal in respect of Mr CD.[105]

   [104] ts 45, 25 October 2019.

   [105] ts 45, 25 October 2019.

3. Mr Bennett did not accept that the use of the Documents for the preparation of the MD Affidavit was inconsistent with the terms of the December 2017 Orders.[106]  His evidence was that he viewed the preparation of the MD Affidavit for use in the PAD Application as 'consistent with use for the purpose of either originating or review proceedings in the Tribunal under the [GA Act] which is the purpose being within the condition 4(a) [of the December 2017 Orders]'.[107]  

   [106] ts 40, 25 October 2019.

   [107] ts 40-41, 25 October 2019.

4. As I have already mentioned, the Applicants' primary case was that the disputed use of the Documents was for the purpose of supporting the PAD Application which in turn was brought to permit the Applicants to give consideration to whether to pursue the second, third and fourth possible causes of action identified in the PAD Application.  The Applicants' case was that the use of the Documents for that purpose (or purposes) was permitted by the Orders. 

1. Counsel for the Applicants acknowledged that while the Tribunal's power under s 112(4) should not be construed narrowly, the reasons advanced in support of an application under s 112(4) of the GA Act need to be cogent and justified on a 'need to know' basis.[151] He also acknowledged that in considering an application under s 112(4) of the GA Act, the Tribunal would act cautiously, and take into account the protection of the privacy of the represented person; the public interest in the integrity of the Tribunal processes which rely on the ability to obtain sensitive information from a variety of sources; and the principles set out in s 4(2) of the GA Act, especially the best interests of the represented person.[152]

   [151] Applicants' Closing Submissions, dated 11 November 2019, para 18, referring to MB at [66].

   [152] Applicants' Closing Submissions, dated 11 November 2019, para 17.

2. Counsel for Mrs AD submitted[153] that before the Tribunal would permit materials filed in the Tribunal to be used in proceedings outside the Tribunal, the Tribunal would need to be satisfied that the further disclosure would be in the best interests of the person whose information is held; that there were 'very cogent' reasons and a 'particular need' to obtain and use the material held by the Tribunal; and that the disclosure would not undermine or compromise the Tribunal's ability to gather and deal with the very sensitive kinds of information it must in order to perform its role.

   [153] Responsive Submissions of Third Interested Party, dated 14 October 2016, para 88.

3. As counsel for Mrs AD pointed out, an application for leave nunc pro tunc 'is somewhat unusual because it seeks leave for something already done'.  The retrospective character of orders of this kind carries the potential to interfere with substantive rights.  Consequently, the courts are ordinarily very cautious about making orders nunc pro tunc and ordinarily will not make such orders to alter the substantive rights of parties.[154]  Generally speaking, an order will be made nunc pro tunc 'only when there has been something exceptional in the facts to justify the making of such an order'.[155]  

   [154] Responsive Submissions of Third Interested Party, dated 14 October 2016, para 70, citing Smolarek v Liwszyc [2006] 57 ACSR 504 at [9].

   [155] Templeton v Hamersley Iron Pty Ltd [2001] WASCA 179 at [26].

4. Where an order is sought nunc pro tunc to relieve a party from the consequences of a breach of an obligation, such as the obligation not to use documents obtained in litigation for any purpose other than that for which they are given, without the leave of the court, such conduct will not be excused lightly.[156]  That is because granting retrospective leave to use documents for collateral purposes amounts to the de facto validation of the conduct of the party who used the documents contrary to their obligation.[157]  

   [156] Forty Two International Pty Ltd v Barnes [2010] FCA 397 (Forty Two International Pty Ltd) at [94]­[98] (Yates J); Laen Pty Ltd v At The Heads Pty Ltd [2011] VSC 315 at [15]­[16] (Davies J).

   [157] Miller v Scorey [1996] 1 WLR 1122 at 1133 (Rimer J).

5. Sometimes retrospective leave will be refused as a condemnatory response to the conduct of the applicant for leave, while in other cases, leave may be granted but the court may reflect its disapproval by making appropriate costs orders.[158]  While all of the circumstances must be considered, the most important factor remains whether the use of the documents was in the interests of justice.[159]  

1. The merits of the application to vary the Orders nunc pro tunc

   [158] Cf Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No. 9] [2013] WASC 42 at [26] (Edelman J).

   [159] Forty Two International Pty Ltd at [98] (Yates J) referring to Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225 (Wilcox J); Bedshed Franchising Pty Ltd vBattersby [No. 2] [2015] WASC 281 at [19]­[22] (Beech J).

1. Counsel for the Applicants submitted that the applicable principle was that the Tribunal would vary the Orders nunc pro tunc if satisfied that 'it was only doing now what it would have done had then'.[160]  

   [160] Applicants' Closing Submissions, dated 11 November 2019, para 54, referring to Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 132 (Toohey J).

2. Counsel for the Applicants submitted that had an application been made to the Tribunal pursuant to s 112(4) of the GA Act before the disputed use of the Documents for the purposes of the PAD Application, the Tribunal would have made orders permitting the use of the Documents for that purpose, having regard to the following considerations:

   (a)Mr CD's interests would be best protected by ensuring he received the level of care, assistance and protection he needed, and the Applicants were concerned about whether a guardian and administrator should be appointed for Mr CD to ensure his best interests were met;[161]

   (b)There was a cogent need for the Documents to be used in the PAD Application because it was not unreasonable for the Applicants to wish to see all medical reports before deciding whether to make an application under the GA Act for the appointment of a guardian and administrator (bearing in mind the assumption made that it would not have been possible for the Applicants to have obtained access to all medical reports (including any not filed in the Original GA Proceedings) via an order of the Tribunal);[162]

   (c)The making of the orders now sought by the Applicants would not undermine or compromise the Tribunal's ability to gather and deal with the sensitive kinds of information it must to perform its role.[163]

   [161] Applicants' Closing Submissions, dated 11 November 2019, paras 20­23.

   [162] Applicants' Closing Submissions, dated 11 November 2019, paras 25 and 27.

   [163] Applicants' Closing Submissions, dated 11 November 2019, para 30.

3. Counsel for the Applicants also pointed to the following factors, which he submitted would be relevant in an application to be relieved of the implied undertaking concerning the use of documents obtained in the course of litigation, and which he submitted were relevant and analogous in this case:[164]

   (a)The PAD Application involved essentially the same parties and similar or related issues as the Original GA proceedings;

   (b)The Documents were relevant to the PAD Application and reference to their contents may have influenced the outcome of the application in the PAD Application (in that the Applicants contended that without all medical reports they were not in a position to make an application to the Tribunal under the GA Act, and without using the Documents to prepare the MD Affidavit, the Applicants may not have been able to meet the jurisdictional requirement under O26A RSC to demonstrate a possible cause of action);[165]

   (c)The Documents would have been, and were, produced to the Applicants as a result of the PAD Application in any event;

   (d)The PAD Application was the direct consequence of the production of the Documents by Mrs AD (in that Mrs AD had commenced the Original GA Proceedings only to subsequently withdraw them);[166]

   (e)There was no prejudice or injustice occasioned to Mrs AD or Mr CD by the use of the Documents for the purposes of the PAD Application (in that some of the information in the Documents was already known to the Applicants by reason of their relationship with Mr CD and Mrs AD, and the limited purpose and use of the information in the Documents could cause no prejudice or injustice to anyone, let alone Mrs AD );[167] and

   (f)The Documents were used for no purpose other than to do justice between the parties in the PAD Application.[168]

   [164] Applicants' Closing Submissions, dated 11 November 2019, para 34.

   [165] Applicants' Closing Submissions, dated 11 November 2019, paras 41­43.

   [166] Applicants' Closing Submissions, dated 11 November 2019, paras 46­48.

   [167] Applicants' Closing Submissions, dated 11 November 2019, paras 49­50.

   [168] Applicants' Closing Submissions, dated 11 November 2019, para 34.

4. As for factors relevant to the exercise of the discretion whether to vary the Orders nunc pro tunc, counsel for the Applicants referred to the following matters:

   (a)The NPT Application was 'made only to quiet any dispute as to whether or not use of the Documents in connection with the [PAD Application] was authorised within the terms of the [Orders]'.[169]  I understood that submission to effectively be that no further use will be made of the Documents themselves if the Orders are varied nunc pro tunc;

   (b)The basis on which the Documents were used without leave of the Tribunal had been explained.  Counsel submitted that there was no doubt that Mr Bennett considered that 'conveying information from [the Documents] to Ms MD for inclusion in her affidavit then use of that affidavit in the [PAD Application], where a fundamental issue was to obtain information to determine whether or not to commence originating proceedings in this [T]ribunal' was not in breach of the Orders[170]  and that the use of the Documents in that way was 'consistent with use for the purpose of originating or review proceedings in the Tribunal';[171]  

   (c)To the extent that Mr Bennett's view was incorrect, an apology had been made, and leave sought to cure that error;[172]  

   (d)If the Tribunal found that the Documents had been used for a purpose outside the scope of the Orders, then the Tribunal should find that that had 'come about as a consequence of a mistake and an honest mistake'[173] which was 'an honest mistake by the lawyers not the Applicants';[174]  

   (e)The exercise of discretion to grant the NPT Application was warranted, having regard to the Tribunal's obligation to act fairly;[175]  

   (f)There was no factual foundation for the contention that the January 2018 Order was deliberately breached;[176] 

   (g)There was sworn evidence from legal practitioners (Mr Bennett and Ms Elder) that the view was taken that the use of the Documents for the purposes of the PAD Application was, or was likely, to be within the purpose permitted by the Orders,[177] on the basis that the PAD Application was an application 'for the purposes of either originating or review proceedings in the Tribunal under the [GA Act]'[178] and when the prospect was raised that that view was erroneous, the NPT Application was made;[179]

   (h)There was no basis to conclude that the Applicants had not been frank with the Tribunal about the use to which the Documents had in fact been put[180] or that Mr Bennett's affidavit was misleading;[181]

   (i)The delay in bringing the NPT Application was not undue and in any event was explained;[182] and

   (j)The disclosure of the contents of the Documents which had occurred was very limited, in that information in the Documents had been used for court proceedings, in which the Court itself was closed, so that the disclosure 'was to a judicial officer of the Supreme Court'.[183]  

   [169] Applicants' Closing Submissions, dated 11 November 2019, para 55.

   [170] Applicants' Closing Submissions, dated 11 November 2019, para 58.

   [171] Applicants' Closing Submissions, dated 11 November 2019, para 59.

   [172] Applicants' Closing Submissions, dated 11 November 2019, para 61­62.

   [173] ts 12, 15 November 2019.

   [174] ts 14, 15 November 2019.

   [175] Applicants' Closing Submissions, dated 11 November 2019, para 63.

   [176] Applicants' Closing Submissions, dated 11 November 2019, para 71.

   [177] Applicants' Closing Submissions, dated 11 November 2019, paras 77­78.

   [178] Applicants' Closing Submissions, dated 11 November 2019, para 79.

   [179] Applicants' Closing Submissions, dated 11 November 2019, para 101.

   [180] Applicants' Closing Submissions, dated 11 November 2019, paras 81­82 and 88­93.

   [181] Applicants' Closing Submissions, dated 11 November 2019, para 84.

   [182] Applicants' Closing Submissions, dated 11 November 2019, para 94.

   [183] ts 17, 15 November 2019.

5. I am unable to accept the Applicant's submissions. Had an application been made under s 112(4) of the GA Act before the Documents were used, I am not persuaded that the Tribunal would have authorised the disputed use of the Documents for the purposes of pursuing the PAD Application in the Supreme Court to enable the Applicants to obtain discovery of documents to permit them to consider whether to pursue any of the three possible causes of action referred to in the MD Affidavit. I have reached that view for the following reasons.

6. First, no cogent reason has been shown for the disputed use of the Documents. In so far as the second possible cause of action was concerned, the Applicants had seen some of the medical evidence in relation to their father's capacity. They had a desire to know whether there was other, contrary evidence in relation to their father's capacity. Understandable as that desire was, it did not amount to a cogent need to see any documents held by the PAD Defendants in order to decide whether to commence an application under the GA Act in the Tribunal. In addition to the Documents, to which they already had access, the Applicants themselves had made their own observations of their father's behaviour, as a result of their interaction with him, and that gave rise to their own concerns about his capacity.

7. Furthermore, whether or not the Tribunal has the power to order the production of other documents in advance of a proceeding being commenced, there is no doubt that once an application under the GA Act is commenced the Tribunal has the power to require the parties to produce documents relevant to the matters in issue. In those circumstances, it was clearly open to the Applicants to commence an application under the GA Act in respect of their father, without first seeing any other documents that the PAD Defendants had in their possession which might be relevant in such a proceeding.

8. Secondly, in so far as the Applicants sought to use the Documents for the purpose of obtaining discovery to enable them to consider whether to pursue the third and fourth possible causes of action, it has not been demonstrated that they had a cogent need to use the Documents for that purpose.  Nor am I persuaded that the proper administration of justice would have been impeded without the grant of permission for the use of the Documents for that purpose.  This is not a case where it can be said that it was necessary, for the administration of justice, for the Supreme Court to see the Documents, in addition to any other evidence on which the Applicants sought to rely in the PAD Application.  (After all, the Applicants did not seek to tender the Documents, but Ms MD merely drew on their contents as the basis for her information and belief.) 

9. Thirdly, there were compelling factors which would have weighed against permitting the disputed use of the Documents for the purpose of enabling the Applicants to consider whether to commence legal proceedings against their father (and Mrs AD and the Company) in the Supreme Court, in relation to Mr CD's role in the Company. Absent an order for suppression of any such proceedings (which was entirely outside the Tribunal's control) those proceedings would be heard in open court. The Documents included medical reports in relation to Mr CD, (one of which was said to have been provided to the Tribunal by Dr S) together with Mrs AD's application in the Original GA Application. To permit the use of the Documents in those circumstances would have the potential to undermine public confidence in the maintenance of the confidentiality of documents provided to the Tribunal for the purposes of proceedings under the GA Act, and may discourage parties from making applications under the GA Act, or providing reports for the purposes of proceedings under the GA Act.

10. Fourthly, the primary concern of the Tribunal in any matter arising under the GA Act (including in applications commenced under the GA Act for access to documents) is the best interests of the represented person or proposed represented person.[184]  Counsel for the Applicants submitted that in determining whether the Orders should be varied, the question was:[185]

    [I]s it in [Mr CD's] interests for the Documents to be used for an application by his daughters for pre-action discovery about matters that concern them and concern his [role].  The fact that one of those matters is within the jurisdiction and three of the matters aren't doesn't detract from that proposition.  So it's a global consideration. …

    Is it appropriate for the applicants to be able to use information to make an application for pre-action discovery in that connection [that is, proceedings in the Tribunal]?  … If the answer's yes, then the Tribunal will further consider … [that] they also want to use the self-same material in the self-same application for three other matters that concern [Mr CD].

    … [W]here the starting proposition … is satisfied that the other three [matters] are related … or, in any event, are matters properly of interest in regard to [Mr CD's] position, then you look at to what extent if I permit that am I expanding the use to which the Documents are being put.  And the proposition I would put is here:  it's none; zero.

    [184] GA Act s 4(2).

    [185] ts 16­17, 15 November 2019.

11. That submission proceeded on the basis that, provided one of the purposes for the disputed use of the Documents was within the scope of the Orders, any other extraneous purposes that might be served by the same use of the Documents could be ignored. The submission ignored the fact that the PAD Application was sought to permit the Applicants to consider whether to pursue any of the possible causes of action identified. If the Applicants obtained an order for pre-action discovery from the PAD Defendants, they were not obliged to pursue proceedings under the GA Act at all and it would have been open to them to pursue proceedings for the third and fourth possible causes of action only. In those circumstances, to permit the disputed use of the Documents, in order to obtain discovery of documents which would assist the Applicants to consider whether to commence proceedings against Mr CD (and Mrs AD and the Company) in the Supreme Court, could not, on any view, be regarded as in Mr CD's best interests.

12. Fifthly, in so far as counsel for the Applicants sought to rely on the factors (set out at [184] above) which he submitted would be relevant in an application to be relieved of the implied undertaking, those factors did not advance the Applicants' case. I do not see any basis for thinking that the Tribunal's obligation to act fairly warrants the grant of the NPT Application. Further, in so far as the Applicants appeared to contend that minimal harm, and certainly no prejudice or injustice, was occasioned to Mr CD and Mrs AD by the disputed use of the Documents, that contention must be rejected. Not only does it ignore the broader implications of the use of confidential documents for purposes other than those for which they were provided to the Tribunal, but it completely ignores the fact that the PAD Defendants were required to defend the PAD Application, with all the financial and intangible costs of litigation that that would inevitably involve. In those circumstances, the contention by counsel for the Applicants that the Documents were used for no purpose other than to 'do justice' between the parties in the PAD Application[186] has no merit. 

    [186] Applicants' Closing Submissions, dated 11 November 2019, para 34.

13. I am not persuaded that this is a case in which it is appropriate to make an order permitting the disputed use of the Documents nunc pro tunc for the following additional reasons. 

14. First, there is nothing exceptional in the circumstances of this case to justify the making of such an order. 

1. Secondly, a weighty factor is that the only utility in making the order nunc pro tunc is that it will exclude the possibility of any liability for the breach of the Orders. 

2. I am not persuaded that the NPT Application should be granted in these circumstances.  While I have concluded that the breach of the Orders arose from Mr Bennett's erroneous view of the law, this was not a completely 'innocent' breach as counsel for the Applicants submitted.  As I concluded at [158] and [164] above, the breach arose from Mr Bennett's cavalier disregard for the importance of ensuring compliance with the Orders in circumstances where it should have been apparent to him that there was at least sufficient doubt about the correctness of his view as to require an application to the Tribunal on behalf of the Applicants in advance of the disputed use of the Documents.  In those circumstances, the breach of the Orders cannot be dismissed as a trivial one.  It was a serious breach.

3. That being the case, I am not persuaded that the Orders should be varied nunc pro tunc where that might be perceived as a de facto validation of the disputed use of the Documents.[187] 

   [187] Cf Miller v Scorey [1996] 1 WLR 1122 at 1133 (Rimer J).

4. Thirdly, in all of the circumstances, there is no basis for the conclusion that the use of the Documents was in the interests of justice. This was not a situation where the Applicants would have been hamstrung in their conduct of litigation by an inability to use the Documents. The PAD Application was one the Applicants chose to bring. The Applicants were entitled to decide the evidence on which they would rely in the PAD Application (subject to the restrictions imposed on the use of the Documents by the Orders). For the reasons already outlined, any application that the Applicants might choose to commence under the GA Act was not dependent on the prior discovery of documents in the possession of Mr CD and Mrs AD, and the Tribunal clearly had the power to ensure that any documents relevant to that application were produced to it.

5. Finally, even had I been persuaded that a basis for varying the Orders nunc pro tunc had been established, the following factors would have weighed against the exercise of the discretion to do so. 

6. First, as I observed at [84], the Applicants did not provide a full and frank disclosure of how the Documents had in fact been used, and (at least prior to the hearing) the extent to which the Documents were in fact used in the PAD Application.  While the reasons for that approach may perhaps be explained, as I have suggested at [85], nevertheless the absence of complete candour in the evidence adduced on the NPT Application weighs against the exercise of discretion in favour of the Applicants.

7. Secondly, the NPT Application was not made until over 12 months after the disputed use of the Documents had occurred (when the MD Affidavit was prepared and filed in support of the PAD Application).  As I observed at [156] - [157], doubts about the correctness of Mr Bennett's view of the law, in the context of the terms of the Orders, should have been sufficient to warrant an application to vary the Orders before the disputed use occurred. 

8. The existence of that doubt could only have been fortified by the arguments raised in opposition to the PAD Application, and in particular, as to whether the second possible cause of action in fact constituted a proper basis for the disputed use of the Documents.  In those circumstances, the appropriate course would have been to make an application to the Tribunal at that point (that is, while the PAD Application was on foot, or immediately thereafter).  Yet, months passed before the NPT Application was brought, and in the end, the Applicants only made that Application after Mrs AD's solicitors raised the possibility of contempt proceedings.  No adequate explanation for the failure to make the NPT Application until that time has been given.  Perhaps Mr Bennett did not entertain any doubt as to the correctness of his view of the law.  Nevertheless, the substantial and unjustified delay in bringing the NPT Application weighs against the grant of the relief sought.

9. In the end, the position is that I have found that there was a breach of the Orders; that that breach arose from Mr Bennett's erroneous view of the law; and, in circumstances where it should have been apparent that there was some basis for doubting the correctness of that view, suggested a cavalier disregard for the importance of complying with the Orders.  The breach of the Orders was therefore a serious one.  There is no basis upon which it can be said that the Tribunal would have permitted the disputed use of the Documents had an application been made in advance of that use, and the circumstances do not support the grant of the NPT Application so as to retrospectively validate the disputed use of the Documents.

10. The NPT Application should therefore be dismissed.

11. I will hear from the parties about the orders which should be made, including as to whether it is necessary for any part of these reasons to be suppressed, as to costs, and as to whether the s 86 certificate should be issued.

Appendix

[Suppressed]

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

EH
Associate to the Honourable Justice Pritchard

30 APRIL 2020