HFT v HQK - [2019] WASC 292

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HFT -v- HQK [2019] WASC 292
CORAM:   TOTTLE J
HEARD:   24 JULY 2019
DELIVERED          :   16 AUGUST 2019
FILE NO/S:   GDA 21 of 2018
BETWEEN:   HFT
Appellant
AND
HQK
First Respondent
YFY
Second Respondent
HKD
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   MEMBER PETRUCCI
File Number             :   GAA 3201 of 2017; GAA 3073 of 2017

Catchwords:

Application for leave to appeal - Appeal against decision of State Administrative Tribunal - Whether appeal constitutes question of law under s 105 of the State Administrative Tribunal Act 2004 (WA)

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A
State Administrative Tribunal Act 2004 (WA), s 77, s 105

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant	:	Mr M Nicholls QC
First Respondent	:	In person
Second Respondent	:	No appearance
Third Respondent	:	In person

Solicitors:

Appellant	:	Tan & Tan Lawyers
First Respondent	:	In person
Second Respondent	:	No appearance
Third Respondent	:	In person

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

Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147

TOTTLE J:

Introduction

The appellant has applied for leave to appeal pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) against a decision made by a member of the State Administrative Tribunal (the Tribunal) dismissing an application brought by the appellant under the Guardianship and Administration Act 1990 (WA) (the Act) in respect of her mother, Mrs H.[1]
[1] To ensure compliance with sch 1, pt B, cl 12 of the Guardianship and Administration Act 1990 (WA) I will refer to the parties and related persons in the proceedings by their initials. Transcript excerpts have been modified to follow this course.
The sole issue presently before the court is whether the appeal is brought on a question of law. I have reached the conclusion that it is not and for that reason leave to appeal will not be granted.
By an application filed with the Tribunal on 27 October 2017 the appellant sought the following orders:
(a)an order under s 110N of the Act revoking an enduring power of guardianship made Mrs H by which she appointed the respondents her enduring guardians (the respondents are the appellant's siblings);
(b)an order under s 43 of the Act appointing the Public Advocate as guardian for Mrs H;
(c)an order that enquiries be made and current reports be obtained from Mrs H's treating doctors, including specialists, as to her present condition and needs, including her accommodation needs and the need for her to resume…

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 HFT v HQK

Details

AGLC: HFT v HQK [2019] WASC 292
Case: [2019] WASC 292
Decision Date: 16 AUGUST 2019

CaseChat Overview and Summary

HFT sought leave to appeal a decision of the State Administrative Tribunal (SAT), which had dismissed an appeal against an administrative decision. The dispute centred on whether the SAT's decision constituted a question of law under section 105 of the State Administrative Tribunal Act 2004 (WA). The appeal was heard in the Court of Appeal of the Supreme Court of Western Australia.

The key legal issue for the court was whether the SAT's decision, which involved an interpretation of the provisions of the Administrative Appeals Tribunal Act 1978 (WA), constituted a question of law. The court needed to determine if the SAT's decision was one that could be reviewed by the Court of Appeal under the provisions of the State Administrative Tribunal Act 2004 (WA). This required an analysis of the nature of the SAT's decision and whether it involved a significant error of law.

The court held that the SAT's decision did not constitute a question of law. The court found that the SAT's decision involved the exercise of discretion in a factual context, rather than a pure question of law. The court further held that the SAT had not made an error of law in reaching its decision. Consequently, the court dismissed the application for leave to appeal.

The court made no orders for costs.

Orders