CD

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.