EML - [2009] WASAT 191

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: EML [2009] WASAT 191

MEMBER: MR J MANSVELD (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 30 SEPTEMBER 2009

FILE NO/S: GAA 1828 of 2009

BETWEEN: EML
Former represented person

Catchwords:

Guardianship and administration - Inspection of documents - Legislative intent of Guardianship and Administration Act 1990 (WA) - Public policy underpinning inspection regime - Cogent reasons needed to inspect documents

Legislation:

Guardianship and Administration Act 1990 (WA), s 43, s 64, s 112(1), s 112(2), s 112(4), Sch 1 cl 12(1)

Result:

The application is refused

Category: B

Representation:

Counsel:

Former represented person : N/A

Solicitors:

Former represented person : N/A

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

MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application for release of documents on a file held by the Tribunal was made pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA).
The application was made by the executrix of the last known will of a person who had, prior to her death, been the subject of an order for administration made under the Guardianship and Administration Act 1990 (WA).
The applicant had made the application because one of the beneficiaries of the deceased's estate was challenging the validity of the will on the basis of an allegation that the deceased did not have testamentary capacity to make a will.
The Tribunal decided not to allow the application as the applicant did not provide sufficiently cogent reasons to warrant the exercise of the discretion available under s 112(4).
The Guardianship and Administration Act 1990 (WA) was designed to protect people with disabilities which prevented them from making reasonable judgments about their personal life and financial estate. The legislation was not related to the administration of estates of deceased persons.
In proceedings before the Tribunal, information was generally provided by professionals and other people, including family and friends of a person with a disability, in a candid manner and which often contained sensitive material and contentious opinion.
The Tribunal considered it important to the integrity of the Tribunal's processes that the providers of information did so in the knowledge that it would only be used in other forums in limited circumstances.

Application

An application for release of documents on a file held by the Tribunal has been made pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) (GA Act).
For the purposes of these reasons the name of the applicant and the former represented person will be anonymised, consistent with the practice of the Tribunal in respect of applications made under the GA Act, to avoid identification of parties to the proceedings (see Sch 1 cl 12(1) of the GA Act).
The application has been made by the executrix of the last known will of…

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.

Continue reading EML

Details

AGLC: EML [2009] WASAT 191
Case: [2009] WASAT 191
Decision Date: 30 SEPTEMBER 2009

CaseChat Overview and Summary

In the matter of EML, the dispute arose within the framework of the Guardianship and Administration Act 1990 (WA). The primary issue before the court was the interpretation and application of the legislative intent behind the inspection of documents under the Act. Specifically, the court was tasked with determining whether the statutory provisions for document inspection aligned with the overarching protective objectives of the legislation.

The court meticulously examined the objectives and language of the Guardianship and Administration Act, emphasizing the protection of individuals with impaired faculties. The court noted that the Act is designed to safeguard the financial and personal welfare of vulnerable adults, ensuring their resources are not mismanaged or exploited. The inspection regime under the Act was considered in light of these protective goals, with a focus on the necessity for forthright information to make informed decisions on guardianship and administration applications.

In its reasoning, the court held that the inspection of documents should be limited and justified by cogent reasons, aligning with the protective intent of the legislation. The court underscored the importance of balancing the need for transparency with the necessity to protect the privacy and interests of vulnerable individuals. The court determined that inspections should be narrowly tailored to serve the primary objectives of the Act, which are the protection and conservation of the resources and welfare of those in need of guardianship and administration.

The court's decision reaffirmed the importance of adhering to the legislative intent and public policy underpinning the inspection regime of the Guardianship and Administration Act. It emphasised that any inspection of documents should be closely aligned with the Act's protective objectives, ensuring that the rights and welfare of vulnerable individuals are prioritised.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MR J

EM Heenan J said in the decision of the Full Court of the Supreme Court in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44]:… the Guardianship and Administration Act is intended to 'provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes' (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.… The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. … The GA Act is not related to the administration of estates of deceased persons. To fulfil the intention and objectives of the GA Act, the Tribunal relies upon the provision of information to it that is forthright and that will often contain sensitive material and contentious opinion. The information is provided by medical practitioners, allied health and other professionals, and family and friends of the person for whom an application for the appointment of a guardian or administrator has been made. The information is often provided in circumstances where the person for whom an application is made is unable, or only partially able, to contribute to the hearing process and give answer to the information made available to the Tribunal on their behalf. The information is provided to enable the Tribunal to make a determination on an application that accords with the substantial merits of the question to be resolved, for example, whether it is in the best interests of the person that a guardian or administrator be appointed in respect to their personal and financial affairs. When an application is being heard by the Tribunal, the inspection regime is covered by s 112(1) and s 112(2) of the GA Act. This allows for a limited number of people to inspect documents and materials held by the Tribunal in the context of submitting to the Tribunal information and opinion that will assist in the decision to be made on a particular application.