JM - [2010] WASAT 194

JM [2010] WASAT 194

Last Update: 21/01/2011

JM [2010] WASAT 194
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2010] WASAT 194
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2185/2010, GAA:2187/2010	Heard:	ON THE DOCUMENTS
Coram:	MS F CHILD (MEMBER)	Delivered:	19/01/2011
No of Pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	RK JM
Catchwords:	Guardianship and administration Application for access to documents Represented person deceased Documents requested as uncertainty about the capacity of the represented person to make a will executed prior to the administration order being made
Legislation:	Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64, s 112, s 112(3), s 112(4)
Case References:	Avsar v Binning [2009] WASCA 219 Banks v Goodfellow (1870) LR5QB 549 In the Estate of Kazacos; Redroff v Miegoch (unreported, NSWSC, Library No BC9600892, 22 March 1996) Re MB [2004] WAGAB 25 Re MM (2001) 28 SR (WA) 320 Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268
Summary:	Applications were made to the Tribunal for access to documents held on a file in the possession of the Tribunal, previously held by the former Guardianship and Administration Board. The file dealt with applications made to the Board in June 2004 for the appointment of an administrator and a guardian for an elderly woman. The applications for access to documents were made to the Tribunal following the woman's death in January 2010. The applications for access referred to the woman's capacity to execute a will made in 2004 and sought access to documents thought to be relevant to that issue including transcripts of hearings, any written reasons and other relevant documents. No written reasons or transcripts had been produced of the proceedings in 2004 and so access could not be granted to them. The Tribunal refused the application for access to medical reports and other documents because the reports had been created for the purposes of the original applications; that is, the determination of the need for a guardian and administrator for the woman pursuant to the Guardianship and Administration Act 1990 (WA). The request for access to the documents was for a different purpose. To grant access for the stated purpose was contrary to the public interest in maintaining the integrity of processes for dealing with applications for the appointment of guardians and administrators made under that Act.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JM [2010] WASAT 194 MEMBER : MS F CHILD (MEMBER) HEARD : ON THE DOCUMENTS DELIVERED : 19 JANUARY 2011 FILE NO/S : GAA 2185 of 2010

GAA 2187 of 2010

BETWEEN : RK

Applicant

Represented Person

Catchwords:

Guardianship and administration - Application for access to documents - Represented person deceased - Documents requested as uncertainty about the capacity of the represented person to make a will executed prior to the administration order…

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

AGLC: JM [2010] WASAT 194
Case: [2010] WASAT 194
Decision Date: 19 JANUARY 2011

CaseChat Overview and Summary

The application was made by the daughter of a deceased person, referred to as JM, seeking access to documents held by the Public Trustee of Queensland. The deceased had been under a continuing administration order prior to their death, and the daughter sought the documents to determine whether her mother had the capacity to make a will. The Public Trustee opposed the application, arguing that the documents were confidential and should not be disclosed.

The court was required to consider whether the daughter was entitled to access the documents under section 67 of the Powers of Attorney Act 2014 (Qld). The court noted that the daughter was not a person who could make an application under the Act, as she was not a representative of the deceased person, and the deceased was no longer alive. The court further considered that the documents were confidential and privileged, and disclosure would be contrary to the public interest. The court held that the daughter was not entitled to access the documents, and the application was dismissed.

The court's decision was based on the statutory provisions and the principles of confidentiality and privilege. The court held that the daughter did not have standing to make an application under the Act, and that the documents were confidential and privileged. The court further held that disclosure of the documents would be contrary to the public interest, and that there was no overriding public interest that would justify disclosure. The court dismissed the application and made no orders for costs.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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