KC
[2005] WASAT 60
•12 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: KC [2005] WASAT 60
MEMBER: MS D DEAN (MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 12 APRIL 2005
FILE NO/S: GAA 170 of 2005
BETWEEN: KC
Applicant
Catchwords:
Administration - Application for inspection of documents
Legislation:
Guardianship and Administration Act 1990 (WA), s 112
Result:
Application to inspect documents refused
Category: B
Representation:
Counsel:
Applicant: Self Represented
Solicitors:
Applicant:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MS D DEAN (MEMBER):
REASONS FOR DECISION
Background
AC and TJC married in 1974 both having been married before. AC brought 7 children to the marriage and TJC brought 2.
AC was diagnosed with Alzheimer's Disease in 1997 and subsequently moved into a nursing home where she was visited regularly by TJC and some of her children.
Information on the Tribunal file indicates a high level of conflict between members of AC's family in relation to care and financial issues.
On 8 November 1999 an application concerning the administration of the estate of AC was lodged with the Guardianship and Administration Board (the Board) by TJC, husband of AC. TJC proposed himself as administrator.
Prior to the hearing of the application for administration on 18 January 2000, KC, daughter of AC, and stepdaughter of TJC, telephoned the Board to request the appointment of the Public Trustee as administrator purportedly to reduce the areas of conflict in the family.
A report from the Office of the Public Advocate (OPA) prepared for the hearing on 18 January 2000, recommended TJC as a suitable administrator on the basis that this was consistent with AC's wishes and was a less restrictive option than the appointment of the Public Trustee.
Following a hearing before Board member Dr A McCutcheon, an administration order in respect of AC was made on 18 January 2000 in favour of TJC. The hearing was attended by family members, including KC.
On 6 September 2000 an application for guardianship in respect of AC was made by TJC, husband of AC. TJC nominated himself as proposed guardian.
On 13 September 2000 an application for guardianship in respect of AC was made by KC, daughter of AC. KC nominated herself as proposed guardian. KC was aware of the guardianship application made on 6 September 2000 by her stepfather TJC, but TJC was not aware of KC's application for guardianship. GLC and SPS, brothers of KC and sons of AC, wrote to the Board in support of their sister's application for guardianship.
Both applications for guardianship were made in response to conflict in the family and ongoing dissatisfaction and formal complaints by KC about the care her mother AC was receiving in the nursing home.
A hearing date for both guardianship applications was set for 20 October 2000. The Board part heard the matters on this date and adjourned to 11 July 2001 because of "poor communication within the family" and concerns that an administration order may not act in the best interests of AC. Mediation was to occur. Further details of the mediation are not known to the Tribunal.
A Guardianship order appointing the Public Advocate was made on 9 March 2004. This order is to be reviewed by 9 March 2009.
On 10 June 2002 the administration order made on 18 January 2000 was reviewed and confirmed.
KC, the eldest daughter of AC, was an interested party and attended the hearing on 18 January 2000. She did not attend the review on 10 June 2002.
On 21 January 2005 KC lodged an application with the SAT for inspection of documents in relation to the hearing on 18 January 2000. KC requested access to "all documents lodged by interested parties" and requested to "listen to a tape of administration hearing". Her reasons for requesting inspection of documents were, "so I can read what was said and so I can hear what was said".
Legislation
Section 112 of the Guardianship and Administration Act 1990 (WA) allows for the inspection of documents.
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 AC are complete, section 112(1) is not relevant to KC's application.
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 AC are no longer pending, this section is not applicable to KC's application.
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.
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 KC's application. The Tribunal would only exercise this discretion and allow access to such documents if satisfied that such inspection or access is appropriate.
In assessing the appropriateness or otherwise of an application to inspect, the Tribunal requires the applicant to provide cogent reasons for it to exercise its discretionary powers and to permit the inspection or access to occur.
Findings and Reasons
The reasons given by KC for applying for inspection and access to "all documents lodged by interested parties" were to "listen to the tape of the administration hearing, so I can read what was said and so I can hear what was said".
The Tribunal does not consider the reasons provided by KC in her application to inspect to be cogent or persuasive and suggests that the information may be available by other means such as discussion with other attending parties etc.
Decision and Order
The Tribunal has carefully considered the application by KC to inspect documents and materials in relation to the administration application hearing on 18 January 2000 and refuses leave to inspect such documents and materials.
The order of the Tribunal is:
1.The application under s 112 to inspect documents is dismissed.
I certify that this and the 5 preceding pages comprise the reasons for decision of the member who heard this matter.
___________________
Ms Donna Dean
Member
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