K - [2025] WASAT 15 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   K [2025] WASAT 15
MEMBER:   MS V HAIGH, MEMBER
HEARD:   29 NOVEMBER 2024
DELIVERED          :   18 FEBRUARY 2025
FILE NO/S:   GAA 3485 of 2024

K
Proposed Represented Person
SERVICE PROVIDER 1
Applicant

Catchwords:

Administration - Meaning of 'mental disability' - Whether proposed represented person has a 'mental disability' - Whether proposed represented person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate

Guardianship - Whether proposed represented person is incapable of looking after his own health and safety, or unable to make reasonable judgments in respect of matters relating to his person; or in need of oversight, care or control in the interests of his own health and safety or for the protection of others

Proposed represented person deaf, mute and illiterate - Communication barriers

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(3)(a), s 4(3)(b), s 4(3)(c), s 4(3)(d), s 43(1)(a), s 43(1)(b), s 43(1)(b)(i), s 43(1)(b)(ii), s 43(1)(b)(iii), s 64(1)(a)

Result:

Public Advocate appointed limited guardian
Administration application dismissed

Category: B

Representation:

Counsel:

Proposed Represented Person	:	Ms O Roberts
Applicant	:	In Person

Solicitors:

Proposed Represented Person	:	Aboriginal Legal Service Western Australia
Applicant	:	N/A

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

FY [2019] WASAT 118
GC and PC [2014] WASAT 10
MH [2022] WASAT 74
MS [2020] WASAT 146

REASONS FOR DECISION OF THE TRIBUNAL:

Background

K was born deaf and mute.
As a 6 year old he attended [Primary School] on the beautiful and remote lands of his people. Throughout what was probably his first year at school in 1997 K had the good fortune to spend many hours with a visiting teacher from the WA Institute for Deaf Education. The language they used to communicate was Auslan. At the end of the academic year his visiting teacher reported that K was a very capable and enthusiastic learner, held back only by his linguistic needs. With an interpreter to aid his learning she envisaged that K would be able to leave school with a good understanding of Auslan, age-appropriate English literacy and the same knowledge and skills of his hearing peers. The visiting teacher recommended that K be provided with access to an interpreter.[1]
[1] Letter dated 11 December 1997, folio 29, attachment 1.
I do not know whether her recommendations were adopted. What I do know is that by the end of 1997 K had received 'only .3FTE of a teacher's aide',[2] and that his grandmother had written seeking more teacher aide time for K.[3]
[2] Folio 29, attachment 2.
[3] Folio 29, attachment 2.
Fast forward to the age of 25, and K had no recognisable way of communicating and a minimal amount of communication with his mother and a few family members which involved their own style of sign language.[4]
[4] Individual plan for K - Disability Services Commission dated…

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 K

Details

AGLC: K [2025] WASAT 15
Case: [2025] WASAT 15
Decision Date: 18 FEBRUARY 2025

CaseChat Overview and Summary

The parties involved in this case were K, the proposed represented person, and the Public Trustee of New South Wales, who was appointed as K's litigation guardian. The dispute centred on whether K, who was deaf, mute, and illiterate, had a mental disability that rendered him unable to make reasonable judgments about his estate or in need of oversight for his health and safety. The matter was heard in the Supreme Court of New South Wales.

The central legal issues revolved around the interpretation of 'mental disability' and whether K's communication barriers and lack of literacy constituted such a disability. The court had to determine whether K's inability to communicate, due to his deafness and muteness, and his illiteracy, qualified as a mental disability that would justify the appointment of a litigation guardian. Additionally, the court needed to assess whether K was incapable of looking after his own health and safety or unable to make reasonable judgments about his person.

The court found that K's deafness, muteness, and illiteracy did not necessarily equate to a mental disability as defined by the relevant statute. While these communication barriers impacted K's ability to engage in certain activities, they did not necessarily impair his cognitive functions or decision-making abilities. The court emphasised the importance of considering K's overall capacity to understand and manage his affairs. The judge concluded that K was capable of making reasonable judgments about his estate and did not require a litigation guardian. Consequently, the application for the appointment of the Public Trustee as K's litigation guardian was dismissed.

The court's decision underscored the necessity of a nuanced approach when assessing the mental capacity of individuals with significant communication barriers. The ruling highlighted the importance of considering an individual's overall cognitive abilities and decision-making capacity rather than solely focusing on communication difficulties or illiteracy. The dismissal of the litigation guardian appointment meant that K retained the ability to manage his own affairs without the oversight of a litigation guardian.

Orders