G v K - [2007] WASC 319

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: 'G' -v- 'K' [2007] WASC 319

CORAM: JENKINS J

HEARD: 20 SEPTEMBER 2007

DELIVERED : 21 DECEMBER 2007

FILE NO/S: CIV 1248 of 2007

BETWEEN: 'G'
Applicant
AND
'K'
First Respondent
'M'
Second Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MS F CHILD

MR J MANSVELD
MR J JAMES

Citation :TJC [2007] WASAT 105
File No :GAA 1448 of 2006, GAA 1449 of 2006

Catchwords:

Guardianship and administration - Appointment of guardian - Whether Tribunal failed to ascertain or take into account the views and wishes of represented person - Representation of represented person - Procedure before Tribunal

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(f), s 16(4), s 21, s 22, s 29, s 30(1), s 43(1), s 44(5), s 45, s 46, s 97(1)(iii), sch 1 pt B cl 12
Rules of the Supreme Court 1971 (WA), O 65 r 8
State Administrative Tribunal Act 2004 (WA), s 32(1), s 40, s 87(1)

Result:

Application for leave to appeal granted
Appeal allowed
Matter remitted to the State Administrative Tribunal for rehearing

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     Ms W F Buckley
Second Respondent       :     No appearance

Solicitors:

Applicant:     In person
First Respondent           :     Shaddicks Lawyers
Second Respondent       :     No appearance

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

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460
TJC [2007] WASAT 10

JENKINS J: The applicant seeks leave to appeal the decision of the State Administrative Tribunal on 26 February 2007 to appoint her daughter, the first respondent, the limited guardian of her grandson. The second respondent did not appear.
The Guardianship and Administration Act 1990 (WA) s 3 provides that a person in respect of whom an application is made is a party to a guardianship proceeding in the Tribunal. The applicant's grandson does not appear to have been made a party to the application before the Tribunal and neither was he named as a party to this application. Later in these reasons, I will comment on the effect of his absence on the proceedings before the Tribunal.
The applicant and the first respondent agree that if I grant leave to appeal, I should determine the appeal without a further hearing.

Description of the parties

To protect the applicant's grandson's privacy and to ensure compliance with the Guardianship and Administration Act sch 1 pt B cl 12, I will use the following letters when I refer to various people and the applicant's grandson's place of residence:

The applicant	G
The applicant's grandson	T
The first respondent, being the applicant's former daughter‑in‑law and the mother of T	K
The second respondent, being the applicant's son and the father of T	M
The country town in Western Australia where T lives with K	B

I will also…

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 G v K

Details

AGLC: G v K [2007] WASC 319
Case: [2007] WASC 319
Decision Date: 21 December 2007

CaseChat Overview and Summary

G applied to the Supreme Court for leave to appeal from a decision of the State Administrative Tribunal (the Tribunal). The appeal was heard by the Court, which had to decide whether the Tribunal had failed to ascertain or take into account the views and wishes of the represented person, T, and whether the Tribunal had properly considered the representation of T. The Court also had to consider whether the procedure followed by the Tribunal was appropriate. The Court found that the Tribunal had not properly ascertained or taken into account the views and wishes of T, and that the representation of T had not been properly considered. The Court also found that the procedure followed by the Tribunal was not appropriate.

The Court held that the Tribunal had not properly ascertained or taken into account the views and wishes of T, as it had not heard from T directly. The Court also held that the representation of T had not been properly considered, as the Tribunal had not heard from any of the applicants or their representatives about the views and wishes of T. The Court further held that the procedure followed by the Tribunal was not appropriate, as it had not heard from T directly and had not given the applicants or their representatives an opportunity to comment on the views and wishes of T.

The Court allowed the appeal and remitted the matter to the Tribunal for rehearing. The Court also granted leave to appeal and ordered that the matter be remitted to the Tribunal for rehearing.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed

3. Matter remitted to the State Administrative Tribunal for rehearing

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

The Rules of the Supreme Court 1971 (WA) (SCR) O 65 r 8 provides that an application governed by O 65, which this application is, will be by way of rehearing. A court dealing with an application for leave to appeal or an appeal by way of rehearing can exercise its powers only if satisfied that there was an error on the part of the original decision‑makers: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 203. The principles applicable to such matters were set out by Buss J (Steytler P agreeing) Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460 477 ‑ 478. I am required to conduct a rehearing based on the material before the Tribunal and any further material I admit into evidence: Guardianship and Administration Act s 29. My ability to find error is limited to the extent that the Tribunal's decision relied upon a view of a witness' credibility based on demeanour and impressions. This is because I did not have the advantage of seeing and/or hearing the witnesses as they gave their evidence. There was no additional evidence tendered at the hearing of the application. Subsequent to the hearing I received correspondence from G enclosing documents she had obtained from the B police. These documents consist of reports of six jobs completed by the B police between May 2005 and September 2007. As the documents have been obtained under freedom of information legislation, the personal details of the person to whom they relate has been omitted. They all refer to the fact that a boy, apparently intellectually disabled, had been found walking alone in the B area. An inference is available that the documents refer to T. As the first respondent has not had an opportunity to see these reports, I will not take them into account. In view of my decision on this application, G will be able to decide whether to use the documents in the future proceedings in the Tribunal. G, K, M and the Public Advocate each applied to the Tribunal, pursuant to the Guardianship and Administration Act s 40, to be appointed guardian of T. Those applications were heard together on various dates in 2006 and on 26 February 2007. The State Administrative Tribunal Act s 32 provides that the Tribunal is bound by the rules of natural justice, shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The section also provides that the Tribunal shall not be bound by the rules of evidence, but may inform itself on any matter in such matter as it thinks fit. The Tribunal heard from the applicants or their representatives. They also heard evidence from Mr Steven Cohen, a clinical psychologist who had been asked by K to assess T and K. The Tribunal did not hear from T. At the conclusion of the hearing on 26 February 2007, the Tribunal ordered as follows:1.[K] be appointed limited guardian of [T] with the following functions:(a)To decide where [T] is to live, whether permanently or temporarily;(b)To decide with whom [T] is to live;(c)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of [T]; and(d)To determine the services to which [T] should have access.2.The Public Advocate be appointed limited guardian of [T] with the following function:(a)To determine what contact, if any, [T] should have with others and the extent of that contact.3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of [T] to an officer or employee employed in the Office of the Public Advocate.4.This order is to be reviewed by 26 February 2008.