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Case [2020] WASAT 41 30 April 2020

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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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: CD [2020] WASAT 41
Case: [2020] WASAT 41
Decision Date: 30 APRIL 2020

CaseChat Overview and Summary

In this case, CD applied for an interim variation of orders made by the Tribunal in December 2017 and January 2018 nunc pro tunc. The dispute centred around the interpretation and scope of the orders made by the Tribunal under section 112(4) of the Guardianship and Administration Act 1990 (WA), which granted access to certain documents for specific purposes. The application was brought before the Supreme Court of Western Australia to determine whether these documents could be used in a pre-action discovery application in the same court. The crux of the matter was whether the terms of the Tribunal's orders extended to cover the pre-action discovery application in the Supreme Court.

The primary legal issues before the court were the interpretation of the Tribunal's orders and the scope of the presumption of capacity under section 4(3) of the Guardianship and Administration Act 1990 (WA). The court needed to decide if the presumption of capacity applied more broadly than in guardianship and administration proceedings before the Tribunal. Additionally, the court considered the general principles applicable to the variation of orders nunc pro tunc and whether the Tribunal had the power to vary orders in such a manner. The court also examined the factors relevant to the discretion to vary orders nunc pro tunc.

The court found that the Tribunal's orders were limited to the purposes of originating or review proceedings in the Tribunal and did not extend to the pre-action discovery application in the Supreme Court. The presumption of capacity under section 4(3) of the Act was held to apply more broadly than in guardianship and administration proceedings before the Tribunal. The court concluded that the Tribunal did have the power to vary orders nunc pro tunc and that the application for variation was appropriate in this case. The court granted the application for variation of the orders nunc pro tunc, allowing the documents to be used in the pre-action discovery application in the Supreme Court.

Orders