JH
[2005] WASAT 243
•8 SEPTEMBER 2005
JH [2005] WASAT 243
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 243 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1314/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MS D DEAN (MEMBER) | 8/09/05 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | The application for inspection of documents is dismissed | ||
| B | |||
| PDF Version |
| Parties: | JH |
Catchwords: | Guardianship and Administration Application for inspection of documents – Represented person deceased Application refused |
Legislation: | Guardianship and Administration Act 1990 (WA), s 112 |
Case References: | Re MB (Unreported Decision 9 June 2004 Re MM (2001) 28 SR (WA) 320 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JH [2005] WASAT 243 MEMBER : MS D DEAN (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 8 SEPTEMBER 2005 FILE NO/S : GAA 1314 of 2005 BETWEEN : JH
- Applicant
Catchwords:
Guardianship and Administration - Application for inspection of documents – Represented person deceased - Application refused
Legislation:
Guardianship and Administration Act 1990 (WA), s 112
Result:
The application for inspection of documents is dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Solicitors:
Applicant : Self-represented
Case(s) referred to in decision(s):
Re MB (Unreported Decision 9 June 2004)
Re MM (2001) 28 SR (WA) 320
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 The applicant, JH, applied to the State Administrative Tribunal (the Tribunal) under s 112(4) of the Guardianship and Administration Act1990 (WA) for access to documents held by the State Administrative Tribunal (the Tribunal), which related to hearings in respect of her aunt, EC, the represented person.
2 The applicant gave her reasons for requesting access as emanating from "a need to provide evidence for a legal action in respect of the estate of EH, now recently deceased". EH was the sister of EC, the represented person, and aunt of the applicant JH. Prior to her death, EH had been the subject of guardianship and administration orders.
3 In making decisions about whether or not to grant access to documents in cases such as this, the Tribunal has broad discretion under s 112(4).
4 In this case the Tribunal did not allow access to the requested documents as it was not satisfied that such inspection or access was appropriate.
Application for inspection of documents
5 On the 18 July 2005, the Tribunal received an application from JH, niece of EC, the represented person, for inspection of documents. In her application, JH stated that she and her brothers were seeking access to "all records" in relation to hearings and decisions in respect of the represented person. In support of her application, JH provided the following information.
"• The appointment of [MC] as an Enduring Power of Attorney for [the represented person and her sister] on 13 January 1995, and the revocation of these Enduring Powers of Attorney on 26 April 1995, following the hearing on the 26 April 1995.
• The refusal of the Guardianship and Administration Board to appoint either EB or MC as guardians and administrators for [the represented person and her sisters].
• The reasons for the revocations and refusals referred to [above].
(Page 4)
- • The actual decisions implemented following the hearings in April 1995 and May 1995 relating to the represented person [and her sisters].
Our interest in the above matters involving our three aunts and the Guardianship and Administration Board emanates from a need to provide evidence for a legal action in respect of the estate of EH, now recently deceased."
Background
6 Following is an outline of the Guardianship and Administration Board's dealing with the matters referred to in the application for inspection made by JH.
7 In June 1995, the then Guardianship and Administration Board (the Board), on an application made by EB, granddaughter of EC, made an administration order in respect of EC. The Board appointed the Public Trustee plenary administrator of the estate of EC and directed the Public Trustee to:
"[E]nquire into the appropriateness and legality of recent transactions whereby Mrs [C's] residence was transferred to her son [MC] and also in relation to the transfer from her Bank account of the sum of approximately $23,000.00 to [MC] and if thought fit to take appropriate action in relation to these transactions".
8 This order was to be reviewed by 20 June 2000.
9 Also in June 1995, the Board dismissed an application for administration made by MC in respect of his mother, EC, the represented person.
10 On the same day in June 1995 the Board, upon an application made by EB in April 1995, revoked the enduring power of attorney (EPA), executed by the represented person on 20 January 1995, in favour of her son MC.
11 Information from the nursing home where EC resided, provided to the Board prior to the hearings in June 1995 reported that EC was diagnosed with Alzheimer's type dementia prior to her admission to the nursing home on 19 November 1992. The nursing home reported to the Board that EC was "confused to a certain degree most of the time" and
(Page 5)
- was not able to recognise most family members except her son MC, and her grandson "fleetingly".
12 Medical reports were provided to the Board prior to the hearings in June 1995 by Dr Kargotich, a general practitioner, and Dr Prendiville, a specialist physician in aged care.
13 Dr Kargotich reported that EC had capacity and understood the implication of what she was signing when she signed legal documents in April and May 1995. Dr Prendiville reported that EC had "significant impairments" in her mental state when he first saw her in April 1992, and he "found evidence of dementia" at this time. Dr Prendiville further reported that, in his opinion, the Alzheimer's disease was well established before April 1992 and that family members had informed him that the "deterioration had begun a couple of years before". In June 1995, Dr Prendiville again assessed EC and found her to be "completely disoriented in time and only vaguely oriented in place".
14 EC, the represented person, died on 28 September 1997.
15 In January 2005, the jurisdiction and functions of the Board were taken over by the Tribunal. The documents and files previously held by the Board are now held by the Tribunal. The Board did not provide written reasons for any of the above decisions but would have made these decisions based on relevant written and oral information available at the time of the hearings.
16 On 18 July 2005, JH made an application for access to "all records, including written/oral submissions" in relation to matters in respect of her aunt, the represented person.
17 The Tribunal has provided JH with copies of the orders made by the Guardianship and Administration Board in respect of the represented person.
18 Following is legislation relevant to the decision of the Tribunal in respect of the application to inspect documents.
Legislation
19 Section 112 of the Guardianship and Administration Act 1990 (WA) allows for the inspection of documents.
20 Section 112(1) provides that for the purposes of any application a represented person or proposed represented person is entitled to inspect or
(Page 6)
- have access to documents and materials. This right is exercisable only in the course of pending proceedings and is no longer relevant once proceedings have been determined. As the proceedings concerning EC are complete, s 112(1) is not relevant to JH's application.
21 Section 112(2) entitles a person who is not the represented person or the proposed represented person, or their representative, but who is otherwise a party to proceedings, to inspect or otherwise have access to documents or materials for the purpose of those proceedings. As in s 112(1), the right given by s 112(2) is for pending proceedings and as proceedings concerning EC are no longer pending, this section is not applicable to JH's application.
22 Section 112(3) of the Act reinforces the limited inspection and access rights by making it an offence, except as provided in the section, for a person, unless authorised to do so by order of the Tribunal, to inspect or otherwise have access to documents or material lodged with, or held by the Tribunal for the purposes of any application.
23 Section 112(4) provides the Tribunal with broad discretion on the application to inspect and have access to documents and may apply to documents and materials other than those in proceedings before the Tribunal. This section is therefore relevant to JH's application. The Tribunal would only exercise this discretion and allow access to such documents if satisfied that such inspection or access is appropriate.
Findings and reasons
24 The Full Board of the Guardianship and Administration Board, when considering an application for review for refusal of inspection under s 112(4), made the following statements in respect of the operation of that section (see Re MB (Unreported Decision of the Full Board Hon Justice ML Barker, President, Mr J James and Ms J Stanton, Members, delivered 9 June 2004) at [34]:
"The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Board are limited … Documents and other materials held by the Board very often go to matters that are highly confidential in respect of the health and safety of the person who may be in need of a guardianship order. In those circumstances it is to be expected that only a limited class of persons would ordinarily be entitled to inspect documents held by the Board."
(Page 7)
25 The Full Board referred to two important policies underpinning the provisions of s 112: firstly, the protection of the privacy of the person involved in the proceedings before the Board and, in particular, a proposed represented person or a represented person; and secondly, the public interest in the integrity of the Board processes which relies on the ability to obtain sensitive information from a variety of sources: see Re MM (2001) 28 SR (WA) 320.
26 Section 112(4) is not limited in its terms and, in an appropriate case, may include inspection or access to relevant documents or materials for purposes other than proceedings before the Board, although the circumstances in which the Board would ordinarily consider exercising this power may be considered limited. As the Board said in Re MM, at 332:
" … [G]iven the sensitive and confidential nature of much of the material held by this Board, we are of the view that where an applicant requests the Board to exercise its discretion under s 112(4) for purposes not related to proceedings before the Board, he or she must provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed (see generally DeHass v Murcia and Associates, Supreme Court of Western Australia Library No 980633, per Templeman J.). It is not sufficient to rely on a general desire to be informed."
27 When considering the nature of the discretion to allow access under s 112(4), the Full Board confirmed the discretion to be a wide one which may be exercised on an application or at the initiative of the Board (now the Tribunal). The Full Board considered circumstances when this discretion might be exercised at [66 and 67]:
" … [W]e think there are good reasons, relating to good public administration, why the Board's power to grant access to relevant documents and materials under s 112(4) should not be construed narrowly. It is possible to envisage a number of circumstances in which, for example, persons charged by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with and are held by the Board for the purpose of an application. The Board should be able to determine on an application-by-application basis whether the request for access by a person should be granted. But as the Board said in Re MM
(Page 8)
- (supra), the reasons advanced in support of a request for access under s 112(4) will need to be cogent and be justified on a 'need to know' basis."
28 In this case, the applicant, a niece of the represented person, seeks very wide access to "all records, including written/oral submissions" on the Tribunal's file for the purposes of providing evidence "for a legal action" in respect of the sister of the represented person, EH. It is not clear from the application the exact nature of the "legal action" referred to, but it is assumed that it is a matter of a contested will. The application for inspection is not an "official investigation in the public interest" which would be appropriate for the Tribunal to exercise discretion in favour of the applicant.
29 To allow inspection of the documents by the applicant for the stated purpose does not uphold the public interest, identified by the Full Board in Re MM (supra) and confirmed in Re MB (supra) in maintaining the integrity of the processes of the Board (now the Tribunal) in dealing with applications for revocation of EPA's and the appointment of an administrator. As was stated by the Full Board, that process "relies on the ability to obtain sensitive information from a variety of sources". If reports provided for the purpose of dealing with such applications were later made available for other purposes, those who produce reports or put material before the Tribunal at hearings may be reluctant to do so in future. The evidence or reports produced at the request of the Board in relation to the applications made in respect of EC in 1995, and now held on the file, were produced for the specific purpose of ascertaining the capacity of EC to execute the EPA in January 1995, and to manage her own estate.
30 In matters such as a legal action in respect of an estate, the Court may, in some cases, request that a file of the Tribunal be made available to the Court to provide material or documents to assist the Court in its decision making process.
Conclusion and order
31 The Tribunal is not satisfied that the purpose for which access is presently sought is sufficient reason for allowing the applicant access to documents or materials held by the Tribunal in relation to the proceedings that were before the Board concerning EC in 1995.
(Page 9)
Decision
32 The Tribunal has considered the application by JH, to inspect documents and materials in relation to the hearings in respect of EC in June 1995, and refuses access to inspect such documents and materials.
33 The order of the Tribunal is:
1. The application under s 112 to inspect documents is denied.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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