JH
[2005] WASAT 245
•8 SEPTEMBER 2005
JH [2005] WASAT 245
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 245 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1316/2005 | 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 245 MEMBER : MS D DEAN (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 8 SEPTEMBER 2005 FILE NO/S : GAA 1316 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 Tribunal's decision
1 The applicant, JH, applied to the State Administrative Tribunal (the Tribunal) under s 112(4) of the Guardianship and Administration Act 1990 (WA), for access to documents held by the Tribunal which related to hearings in respect of her aunt, EH, 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 [the represented person], now recently deceased".
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 EH, the deceased 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].
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- • 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 dealings with the matters referred to in the application for inspection made by JH.
7 On 5 April 1995, EB applied to the then Guardianship and Administration Board (the Board), to intervene in an enduring power of attorney (EPA), executed by her aunt, EH, in favour of her nephew MC. The EPA was executed on 13 January 1995.
8 On 13 April 1995, EB applied to the Board for guardianship and administration orders in respect of her aunt EH, on the basis that EH had Alzheimer's disease and was not able to adequately care for herself, or make reasonable decisions in respect of her estate. EB proposed herself as both guardian and administrator.
9 On the same day, 13 April 1995, MC, nephew of EH and donee of the EPA, applied to the Board for guardianship and administration orders for his aunt. MC proposed himself, and his son MJC, as joint administrators and guardians.
10 The above matters were heard by the Board on 26 April 1995. The Board dismissed the applications for guardianship and administration and revoked the EPA executed on 13 January 1995. The Board did not provide written reasons for these decisions.
11 In response to an application for an administration order made to the Board by JJH on 27 July 1996, the Board appointed three family members, JJH, PJC and MJC, joint administrators with limited powers in respect of the estate of EH, the represented person, who was at that time residing in a nursing home. The appointment was for a period of one year to September 1997.
12 On review in September 1997, and as a result of the resignation of two of the joint administrators, the administration order was revoked and
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- an order appointing the Public Trustee plenary administrator was made. This order was for a period of one year. The order was reviewed in September 1998 and renewed for a further five years to 2003. On review in 2004, the order was renewed for a further five years to 2008.
13 On 18 March 1998, in response to an application by the Office of the Public Advocate, a guardianship order was made appointing the Public Advocate limited guardian in respect of EH, with the function of deciding where, and with whom, the represented person was to live. The order was to be reviewed in one year. On review in 1999, the order was amended giving the guardian the function of making decisions in relation to the provision of appropriate services for the represented person. The guardianship order was revoked in May 2000.
14 The represented person died in March 2005.
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 Following is legislation relevant to the decision of the Tribunal in respect of the application to inspect documents.
Legislation
17 Section 112 of the Guardianship and Administration Act 1990 (WA) allows for the inspection of documents.
18 Section 112(1) provides that for the purposes of any application, a represented person or proposed represented person is entitled to inspect or 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 EH are complete, Section 112(1) is not relevant to JH's application.
19 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
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- proceedings concerning EH are no longer pending, this section is not applicable to JH's application.
20 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.
21 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
22 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."
23 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.
24 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
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- 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."
" … [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 (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."
26 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 represented person. 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 one such as an "official investigation in the public
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- interest" which would be appropriate for the Tribunal to exercise discretion in favour of the applicant.
27 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 guardians and administrators. 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 the future. The evidence or reports produced at the request of the Board in relation to the applications made in respect of EH in 1995, and now held on the file, were produced for the specific purpose of ascertaining the capacity of EH to execute the EPA in January 1995, to manage her own estate and to make decisions about lifestyle issues.
28 In matters such as a legal action in respect of an estate, the Court may 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
29 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 EH in 1995.
Decision
30 The Tribunal has considered the application by JH, to inspect documents and materials in relation to the guardianship and administration application hearings in respect of the represented person, and refuses access to inspect such documents and materials.
31 The order of the Tribunal is:
1. The application under s 112 to inspect documents is dismissed.
(Page 9)
- I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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