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):
GC and PC [2014] WASAT 10
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…
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- AGLC
- K [2025] WASAT 15
- Case
- [2025] WASAT 15
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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