DMA - [2005] WASAT 103

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION BOARD 1990

CITATION: DMA [2005] WASAT 103

MEMBER: MR J MANSVELD (MEMBER)

HEARD: ON THE PAPERS

DELIVERED : 13 MAY 2005

FILE NO/S: GAA 127 of 2005

BETWEEN: DMA
Applicant

Catchwords:

Guardianship and administration - Application to inspect documents when proceedings have been determined - Application for inspection not a substitute for seeking reasons for determination

Legislation:

Guardianship and Administration Act 1990 (WA), s 112

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant: Self Represented

Solicitors:

Applicant:

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

Re MB, unreported decision of the Full Board delivered 9 June 2004 by Hon Justice M Barker, President, J James, Member and J Stanton, Member

Case(s) also cited:

Nil

MR J MANSVELD (MEMBER)

REASONS FOR DECISION

Introduction

CC lodged an application to inspect documents with the Tribunal on 14 February 2005 pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) (the Act). The application was in respect of the completed proceedings of an application for guardianship for DMA by KM, soninlaw of DMA. CC is a daughter of DMA.
On 16 December 2004 the Guardianship and Administration Board (the Board) appointed NM (another daughter of DMA) limited guardian of DMA.
The Tribunal is deciding this application as the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) came into effect on 24 January 2005 and the functions of the Board were taken over by the Tribunal.

The application to inspect documents

In her application for inspection, CC asked that she be " … permitted to read the statements of the 4 (surname) present." She listed these as KM, NM, KC (granddaughter) and DM (grandson). She was not happy with the conduct of the hearing and stated in the application that she had not been given sufficient time to read the statements.
The Record of Evidence for the hearing of 16 December 2004 reveals that on that day a written submission by KC was tabled together with other documents. The record also shows that KM wrote a letter to the Board which was received on 15 December 2004. There does not appear to be any other documents in the record of evidence that would qualify as "statements" by any of the people mentioned by CC.
On 10 January 2005 and prior to lodging the application for inspection, CC requested the written reasons for the Board's determination of 16 December 2004.
On 10 March 2005 the Tribunal received a letter from CC. The letter reads in part:
"On the 5th of January 2005 I wrote to the Guardianship Board requesting reasons why Mrs (NM) was granted a limited guardianship for Mr and Mrs (A) …"
"On the 18 of February I phoned your establishment & spoke to (J) who explained board members worked part time & I accepted this as being a reason for the delay & suggested to save time & effort for the board member concerned I be permitted to come to you office and read submissions and statements made by the (surname) who attended the hearing. I received an application promptly and posted it back to you on 11.02.05."
On 11 March 2005, the Tribunal sent CC the "Reasons for Determination" for the decision made by the Board on 16 December 2004.
On 14 March 2005, the Tribunal wrote to CC asking whether it was her intention to proceed with the application for inspection now that she had received the reasons for determination. CC wrote to the Tribunal on 17 March 2005 stating, "I would still like to read the reports indicated in my application."
The application of s 112 of the Act has been considered in Re MB, unreported decision of the Full Board delivered 9 June 2004 by Hon Justice M Barker, President, J James, Member and J Stanton, Member.
Section 112 provides as follows:
"(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 ¾
(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 ¾
(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."
In Re MB (supra), the Board held that the right given by s 112(1) and s 112(2):
"… to relevant persons to inspect relevant documents and materials, unless the Board in any case otherwise orders, is exercisable in the course of pending proceedings and is no longer relevant once proceedings have been determined and a matter is not subject to review or appeal. It is a right given to facilitate a proper hearing of an application before the Board."
I agree with the Board's interpretation. In the case before this Tribunal the proceedings to which it relates were in respect of a guardianship application for DMA that was heard and determined by the Board on 16 December 2004. The matter is not currently subject to review or appeal and therefore s 112(1) and s 112(2) do not apply.
The Board in Re MB, (supra) held that s 112(3) reinforces the limited inspection and access rights by making it an offence to inspect or have access to documents or material lodged with or held by the Tribunal unless approved by the Tribunal.
In respect of s 112(4) the Board in Re MB (supra) held that a broader right of inspection is available and with that I also agree:
"What is clear, is that s 112(4) empowers the Board, if it forms the view that an order permitting inspection or access to relevant documents and materials is appropriate in the circumstances of the application, to permit that inspection or access to occur. The Board's discretion to allow or reject an application is very wide ..."
The Board, however, held that an application to inspect under s 112(4) fails if it is in fact a request for the reasons of a decision:
"… As the member of the Board said in the initial determination refusing Mr MB's application for inspection, that request was really in the nature of a request for reasons for decision. At that stage, the Reasons for Determination had not been delivered but were in the process of preparation. They were given on 30 March 2004. It is understandable that the member refused the application of Mr MB in those circumstances. This is because an application for access under s 112(4) should not be used as a substitute for seeking reasons for determination or for seeking review of a determination. The Act already makes special provision for a party to request reasons and that is the appropriate manner to obtain reasons for determination."
The facts in the application before this Tribunal are similar. The material before the Tribunal shows that CC requested reasons for the Board's decision on 5 January 2005. It was only after she expressed concern at the length of time the reasons were taking that she advised, by way of her letter received by the Board on 10 March 2005, that she would accept inspection of certain documents "… to save time and effort for the board member concerned …"
As it was the Tribunal sent her the "Reasons for Determination" on 11 March 2005.
I am satisfied that when CC applied to inspect documents by way of an application filed on 14 February 2005, she did so only because she had not yet received the reasons for determination requested on 5 January 2005. She subsequently received those reasons.
I accept the reasoning in Re MB (supra) that it is not appropriate to allow a person who is or has been a party to the earlier proceedings to have a right to inspect particular documents in order to decide what they think may have been the reasons of the Board or Tribunal making an earlier guardianship order.

Order

The application is dismissed.

I certify that this and the preceding 6 pages comprise the reasons for decision of the State Administrative Tribunal.
__________________________
Mr J Mansveld
Member