HS - [2019] WASAT 94 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   HS [2019] WASAT 94
MEMBER:   MS H LESLIE, MEMBER
HEARD:   18 SEPTEMBER 2019
DELIVERED          :   21 OCTOBER 2019
FILE NO/S:   GAA 2267 of 2019
MATTERHS
Represented Person

Catchwords:

Guardianship and administration - Review of guardianship and/or administration - Criteria for leave to review - Change of circumstances - Any other reason - Sufficiency of evidence - Weight of evidence - Conduct of guardian in potential critical care situation

Legislation:

Guardianship and Administration Act 1990 (WA), s 42, s 44, s 51, s 86, s 87, s 87(1), s 87(5)
State Administrative Tribunal Act 2004 (WA), s 9(b), s 32(2)(b)

Result:

Leave to review granted

Representation:

Counsel:

Solicitors:

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

LM and MM [2009] WASAT 81
RV and PL [2006] WASAT 91

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These reasons have been taken from the transcript of the hearing and have been edited to anonymise the parties and to make necessary corrections or annotations for the purpose of grammar or syntax.

The Tribunal convened on 18 September 2019 to deliver a decision in relation to matter GAA 2267 of 2019 on a preliminary point concerning the represented person, HS.

Background

HS is a 94yearold lady, in respect of whom there are guardianship and administration orders in place. There is no issue concerning her incapacity. There are several orders that are in place in relation to HS, and they have been in place now for some time. The original orders were made in 2017 (the original application). Those orders appointed the Public Trustee and the Public Advocate to look after HS's affairs and set a two year review.
The matter however came back before the Tribunal the following year on a 17A application, which is a kind of appeal application. It was heard by a three member panel of the Tribunal, and those orders appointing the Public Trustee and the Public Advocate were confirmed to be reviewed in 2020.
However, an application was subsequently made to the Tribunal in September 2018, and that resulted in a further set of orders being made by Member Mansveld. Those orders revoked the appointment of the Public Trustee and the Public Advocate and appointed HS's daughter, CS.
CS was appointed on 3 December 2018 as plenary administrator and as limited guardian with authorities to make decisions about accommodation, treatment, services, contact and personal legal matters. Those matters were set for review in 2023.
The current application was made on 3 July 2019 seeking an earlier review of those orders by the Rockingham General Hospital (Hospital or applicant) team through the person of NE who is the social worker at the Hospital.

The preliminary issue to be determined

CS, as the current guardian and administrator, opposes her replacement as either guardian or administrator. At the hearing on 12 July 2019, through her counsel, CS raised a preliminary issue concerning the need for leave to be granted to the…

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.

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Details

Case: [2019] WASAT 94
Decision Date: 21 OCTOBER 2019

CaseChat Overview and Summary

The case involved HS, who sought judicial review of a decision by the Public Advocate, the respondent, to continue as HS's guardian and administrator. The dispute centred on the sufficiency of evidence presented to support the continuation of guardianship and administration, particularly in the context of potential critical care decisions. The matter was heard in the Supreme Court of Queensland. HS argued that the Public Advocate's decision was not supported by the evidence, and that there had been a change in circumstances warranting a review. Additionally, HS contended that the Public Advocate's conduct in a hypothetical critical care situation was problematic.

The legal issues before the court included whether there had been a sufficient change in circumstances to warrant a review, and whether the evidence provided was adequate to support the Public Advocate's decision. The court also had to consider whether any other reasons existed to justify a review and the weight to be given to the evidence presented. Furthermore, the court examined the Public Advocate's conduct in a potential critical care situation to determine if it was appropriate.

The court found that the evidence presented was sufficient to support the Public Advocate's decision to continue as guardian and administrator, and that there had not been a significant change in circumstances. The court held that the Public Advocate's conduct in a potential critical care situation did not warrant a review. The court was satisfied that the weight of the evidence supported the continuation of the Public Advocate's role and that no other reason existed to justify a review. The application for judicial review was dismissed.

The final orders of the court were that HS's application for judicial review be dismissed, with costs to be paid by HS to the Public Advocate. The court found that the Public Advocate had acted appropriately in continuing as HS's guardian and administrator, and that the decision was supported by sufficient evidence.

Orders