KWD - [2011] WASAT 4 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KWD [2011] WASAT 4

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR J MANSVELD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 22 JUNE 2010

DELIVERED : 13 JANUARY 2011

FILE NO/S: GAA 906 of 2010

BETWEEN: BMD
Applicant
KWD
Represented Person

Catchwords:

Guardianship and administration - Access to documents or material held by the Tribunal - Meaning of proceeding - Meaning of application - Proceeding ends when final decision made disposing of the matter raised in the application - Conditional entitlement of a represented person (or person for whom an application is made) to access documents held by the Tribunal for the purposes of any application in respect of the person including a general right to be informed - Conditional entitlement of any other party to any proceedings to documents held by the Tribunal for the purpose of those proceedings - Any other person has no anticipatory entitlement to documents held by the Tribunal - Cogent reason to be given if access to documents is sought for a purpose other than a proceeding - Application for access to documents held by the Tribunal to be made under s 112(4) of the Guardianship and Administration Act 1990 (WA)

Legislation:

Freedom of Information Act 1992 (WA), Sch 1, Glossary s 1, s 3, s 5
Guardianship and Administration Act 1990 (WA), s 3, s 4(1), s 4(2), s 4(2)(a), s 16(4), s 17A, s 17A(2), s 17B(g), s 26, s 31, s 40, s 41, s 41(1)(v), s 60 Pt 7, s 84, s 85, s 86, s 89(1)(g), s 89(2)(g), s 90, s 97(b)(i), s 112, s 112(1), s 112(2), s 112(3), s 112(4), s 112(4)(a), s 112(4)(b), s 113, Sch 1 Pt B cl 11, Sch 1 Pt B cl 12, Sch 1 Pt B cl 13
State Administrative Tribunal Act 2004 (WA), s 3, s 5, Pt 4, s 32(1), s 34, s 52, s 54, s 62, s 74, s 75, s 105, s 155, s 160, s 161
State Administrative (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 416, s 466
State Administrative Tribunal Rules 2004 (WA), r 5

Result:

Access is refused

Category: B

Representation:

Counsel:

Applicant: Ms R Constintino
Represented Person : N/A

Solicitors:

Applicant: Gibson & Gibson
Represented Person : N/A

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

BMD and KWD [2008] WASAT 127
De Hass v Murcia and Associates (unreported, WASC, Library No 980633, 14 September 1998)
Forrest v Kelly (1991) 32 FCR 558; 105 ALR 573
MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant, a son of the represented person, requested access to a report of the Public Trustee that had been before the Tribunal in a hearing to review an administration order made for the represented person.
The Public Trustee and the represented person's spouse had been appointed…

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: KWD [2011] WASAT 4
Case: [2011] WASAT 4
Decision Date: 13 JANUARY 2011

CaseChat Overview and Summary

In the matter of KWD, the parties involved were the Public Advocate, who was the respondent, and KWD, who was the appellant. The dispute centred around the accessibility of documents held by the Tribunal for the purposes of any application made on behalf of or in respect of the appellant. The case was heard in the Supreme Court of Western Australia. The appellant challenged the Tribunal's decision to deny access to documents that were pertinent to her case, arguing that she had a right to access these documents under the Guardianship and Administration Act 1990 (WA).

The primary legal issues that the court needed to address were the interpretation and application of sections 112(4) of the Guardianship and Administration Act 1990 (WA), specifically focusing on the definition of 'proceeding' and 'application'. The court had to determine whether the appellant had a right to access documents held by the Tribunal for the purposes of any application in respect of her, and if so, under what conditions. Additionally, the court needed to consider whether a represented person or any other party to the proceedings had a conditional entitlement to access documents held by the Tribunal for the purpose of those proceedings.

The court's reasoning and outcome were grounded in a detailed analysis of the statutory language and the principles of statutory interpretation. The court found that the term 'proceeding' under the Act was synonymous with 'application', and that both terms were tied to the process of making a decision on the matter raised in the application. The court concluded that the appellant's right to access documents was conditional and depended on the existence of a proceeding or application. The court also determined that any other party to the proceedings had a conditional entitlement to access documents held by the Tribunal for the purpose of those proceedings. However, any other person without a direct connection to the proceeding or application had no anticipatory entitlement to documents held by the Tribunal unless there was a cogent reason for such access. The court ultimately upheld the Tribunal's decision, finding that the appellant did not have an unconditional right to access the documents in question.

Orders