LFG and PUBLIC TRUSTEE
[2015] WASAT 71
•23 JUNE 2015
LFG and PUBLIC TRUSTEE [2015] WASAT 71
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 71 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1825/2015 | 12 JUNE 2015 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 23/06/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LFG KEF PUBLIC TRUSTEE |
Catchwords: | Guardianship and administration Inspection of documents Legislative intent of Guardianship and Administration Act 1990 (WA) Public policy underpinning inspection regime Cogent reasons needed to inspect documents |
Legislation: | Freedom of Information Act 1992 (WA) Guardianship and Administration Act 1990 (WA), s 3, s 80, s 112, s 113 State Administrative Tribunal Act 2004 (WA), s 35, s 35(1) |
Case References: | De Hass v Murcia and Associates (unreported, Supreme Court, Western Australia, Library No 980633, 14 July 1998) KWD [2011] WASAT 4 MB [2004] WAGAB 25 Re MM (2001) 28 SR (WA) 320 |
Summary | The applicants, who are the proposed administrators of an estate of a former represented person (deceased), sought orders from the Tribunal to permit inspection of documents that had been filed with the Public Trustee by the joint plenary administrators of the represented person.,The orders sought are, in essence to aid the proposed administrators of the estate of the deceased person to administer the estate and will accrue for the benefit of the beneficiaries of the estate of the deceased person.,The power to inspect under s 112(2) of the Guardianship and Administration Act 1990 (WA), ceases once the represented person dies. Therefore, if there is any jurisdiction to allow inspection of documents held by the Tribunal after the death of a represented person, it can only arise under s 112(4) of the GA Act.,The corollary of the wide discretion of the Tribunal to allow inspection under s 112(4) of the GA Act is that a request for access will need to be justified by very cogent reasons.,No public policy reasons were identified as to why orders should be made under s 112(4) of the GA Act. Accordingly, the application was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LFG and PUBLIC TRUSTEE [2015] WASAT 71 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : 12 JUNE 2015 DELIVERED : 23 JUNE 2015 FILE NO/S : GAA 1825 of 2015 BETWEEN : LFG
- First Applicant
KEF
Second Applicant
AND
PUBLIC TRUSTEE
Respondent
Catchwords:
Guardianship and administration - Inspection of documents - Legislative intent of Guardianship and Administration Act 1990 (WA) - Public policy underpinning inspection regime - Cogent reasons needed to inspect documents
Legislation:
Freedom of Information Act 1992 (WA)
Guardianship and Administration Act 1990 (WA), s 3, s 80, s 112, s 113
State Administrative Tribunal Act 2004 (WA), s 35, s 35(1)
Result:
Application dismissed
Summary of Tribunal's decision:
The applicants, who are the proposed administrators of an estate of a former represented person (deceased), sought orders from the Tribunal to permit inspection of documents that had been filed with the Public Trustee by the joint plenary administrators of the represented person.
The orders sought are, in essence to aid the proposed administrators of the estate of the deceased person to administer the estate and will accrue for the benefit of the beneficiaries of the estate of the deceased person.
The power to inspect under s 112(2) of the Guardianship and Administration Act 1990 (WA), ceases once the represented person dies. Therefore, if there is any jurisdiction to allow inspection of documents held by the Tribunal after the death of a represented person, it can only arise under s 112(4) of the GA Act.
The corollary of the wide discretion of the Tribunal to allow inspection under s 112(4) of the GA Act is that a request for access will need to be justified by very cogent reasons.
No public policy reasons were identified as to why orders should be made under s 112(4) of the GA Act. Accordingly, the application was dismissed.
Category: B
Representation:
Counsel:
First Applicant : Ms L Barratt
Second Applicant : Ms L Barratt
Respondent : Mr M Bowyer
Solicitors:
First Applicant : Bradley Lawyers
Second Applicant : Bradley Lawyers
Respondent : Public Trustee
Case(s) referred to in decision(s):
De Hass v Murcia and Associates (unreported, Supreme Court, Western Australia, Library No 980633, 14 July 1998)
KWD [2011] WASAT 4
MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320
Introduction
1 FHF was a represented person pursuant to orders made by this Tribunal. Two of FHF's children, her son, SF and one of her daughters, LJ, were appointed joint plenary administrators on 29 May 2014. FHF died interstate on 5 December 2014.
2 The applicants in these proceedings are two of FHF's daughters, LFG and KEF. They are seeking letters of administration in the probate jurisdiction of the Supreme Court.
The proceedings to date
3 The applicants originally requested documents from the Public Trustee. The Public Trustee refused to provide them by reason of s 113 of the Guardianship and Administration Act 1990 (WA) (GA Act) and suggested that an application be made under s 112 of the GA Act. The application to the Tribunal under s 112 of the GA Act was essentially refused.
4 The applicants seek a review of the Tribunal's orders made on 18 February 2015 which refused access to accounts (specifically, a copy of the latest financial statement concerning FHF's affairs) required to be lodged by the two administrators of FHF's estate with the Public Trustee. This matter was listed for hearing with GAA 4381 of 2014.
5 The administrators of FHF filed documents with the Public Trustee pursuant to s 80 of the GA Act.
6 In short, the applicants seek orders that:
a) The Public Trustee delivers the documents filed by the administrators of FHF with the Public Trustee to the Tribunal; and
b) The Tribunal makes those documents available for inspection by the applicants.
7 The reasons why access is sought is set out in a letter from the applicants' lawyer dated 17 March 2015, can be summarised as:
a) the applicants consider that the accounts could assist in making an application for Letters of Administration with respect to the estate of FHF; and
b) there is concern that FHF's bank balance has diminished; and
c) an examination of the accounts may explain FHF's diminished bank balance.
The proceedings to date
8 The applicants sought access to the documents under s 112 of the GA Act. This matter was listed for hearing with GAA 4381 of 2014.
Orders sought
9 The full orders sought by the applicants are that:
Pursuant to section 35 of the State Administrative Tribunal Act 2004, the Public Trustee be ordered to provide, to the Tribunal, copies of the following documents with respect to the estate of [FHF] that were lodged with the Public Trustee:
(a) the Form C statutory declaration by [JDF] and [LLJ];
(b) the Form B summary of accounts, with Abstracts 1 (receipts/income), 2 (expenditure/payments), 3 (assets) and 4 (liabilities/loans); and
(c) the supporting documentation provided with the Forms B and C.
The Tribunal then order that:
[LG] is authorised to have copies of the following documents with respect to the estate of [FHF] that were lodged with the Public Trustee:
(a) the Form C statutory declaration by [JDF] and [LLJ];
(b) the Form B summary of accounts, with Abstracts 1 (receipts/income), 2 (expenditure/payments), 3 (assets) and 4 (liabilities/loans); and
(c) the supporting documentation provided with the Forms B and C.
10 Section 112 of the GA Act provides:
1) A represented person, a person in respect of whom an application under this Act is made or a person representing any such person in any proceedings commenced under this Act is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to -
(a) any document or material lodged with or held by the Tribunal for the purposes of any application in respect of that person;
(b) any accounts submitted under section 80 by the administrator of the estate of that person.
(2) Any other party to any proceedings commenced under this Act, or a person representing any such party, is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purpose of those proceedings, other than a document or material that is or contains a medical opinion not being an opinion concerning that party.
(3) Except as provided in this section, no person (not being a member of the State Administrative Tribunal or a member of staff of the Tribunal) shall, unless he is authorised to do so by order of the Tribunal, inspect or otherwise have access to a document or material lodged with or held by the Tribunal for the purposes of any application, or to any accounts submitted under section 80.
Penalty: $2 000 or imprisonment for 9 months.
(4) The State Administrative Tribunal may on the application of any person -
(a) by order, authorise any person, whether conditionally or unconditionally, to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purposes of any application; and
(b) make any other order contemplated by this section.
(5) An application under subsection (4) may be made ex parte or the State Administrative Tribunal may give directions as to the persons to whom notice of the application shall be given and who shall be entitled to be heard.
11 Section 3 of the GA Act provides:
represented person means any person in respect of whom -
(a) a guardianship order is in force;
(b) an administration order is in force; or
(c) both a guardianship order and an administration order are in force;
12 Section 35(1) of the State Administrative Tribunal Act 2004 (WA) provides:
On the application of a party to a proceeding, the Tribunal may order that a person -
(a) who is not a party to the proceeding; and
(b) who has, or is likely to have, in the person’s possession or under the person’s control a document or other material that is relevant to the proceeding,
produce the document or material to the Tribunal or the party within the time specified in the order.
Analysis
13 The Tribunal's powers under the GA Act and the SAT Act are only to be exercised for the purposes of those Acts.
14 Section 113 of the GA Act is the starting point for any consideration of s 112 of the GA Act.
15 Section 113 of the GA Act is plainly intended to ensure that personal information provided to the Tribunal under the GA Act is confidential except in the circumstances set out in s 113(1)(a) (d). Information does not cease to be confidential simply by reason of the death of a person.
16 In KWD [2011] WASAT 4 (KWD) the Tribunal stated:
60 Section 112 establishes three classes of persons to whom access to documents may be given:
1) the person for whom an application is made under the GA Act and a represented person (or their legal representative);
2) any other party to any proceeding; and
3) any other person.
61 The exercise of the discretion in s 112 may be applied differently for the different classes of persons, but all cases require a positive act by the Tribunal to consider a request for access to documents. It is open to the Tribunal to deny access even to a represented person or a person for whom an application is made, because such access is provided subject to the provision that the Tribunal may otherwise order. The Tribunal must decide whether, of all the documents in the possession of the Tribunal, any should be withheld.
17 Under the GA Act, once a represented person dies, a guardianship and/or an administration order ceases to have any force.
18 Under the GA Act, once a represented person dies, a guardianship and/or an administration order ceases to have any force.
19 The powers to inspect under s 112(1) of the GA Act which permit a represented person, a person in respect of whom an application is made or a person representing any such person ceases once the represented person dies.
20 The entitlement of any other party under s 112(2) of the GA Act is restricted to the proceedings in which they are a party (KWD at [73]). The power to inspect under s 112(2) of the GA Act also ceases once the represented person dies.
21 Section 112(2) of the GA Act is to meet the requirements of procedural fairness (KWD at [74]).
22 If there is any jurisdiction to allow inspection of documents held by the Tribunal after the death of a represented person, it can only arise under s 112(4) of the GA Act.
23 In KWD the Tribunal stated at [88] – [92]:
The final class of persons (the public at large) has no anticipatory entitlement to inspect or otherwise have access to documents held by the Tribunal for matters under the GA Act.
In exercising its discretion to grant access to documents upon an application by any person to use the information in those documents for matters other than a proceeding under the GA Act, the Tribunal should act cautiously.
The Tribunal agrees with the Full Board in Re MM(at [65]) that such a consideration would necessarily incorporate a judgment about the particular need for which the access is sought and how persuasive or cogent are the reasons given in the application.
In the exercise of its discretion, the Tribunal should give attention to the policies that underpin s 112 of the GA Act as identified in Re MM [at 332]; the protection of the privacy of the person for whom the application has been made and the public interest in the integrity of the Tribunal processes which relies on the ability to obtain sensitive information from a variety of sources.
The Tribunal must also observe the principles set out in s 4(2) of the GA Act, with the primary concern in any proceeding being the best interests of any represented person, or of a person in respect of whom an application is made (s 4(2)(a)).
24 In Re MM (2001) 28 SR (WA) 320, the then Full Board of the Guardianship and Administration Board (Full Board), citing TemplemanJ in De Hass v Murcia and Associates (unreported, Supreme Court, Western Australia, Library No 980633, 14 July 1998) held at [332] that an application under s 112(4) of the GA Act would need to 'provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed … [i]t is not sufficient to rely on a general desire to be informed'.
25 The corollary of the wide discretion of the Tribunal to allow inspection under s 112(4) of the GA Act is that a request for access will need to be justified by very cogent reasons (KWD at [42]).
26 In MB [2004] WAGAB 25, the Full Board identified 'persons charged by law with the responsibility to conduct investigations in the public interest' as one class of persons who may be provided access (see KWD at [42]). This is not an exclusive class but it gives some indication of the type of intent which a third party must possess before inspection is permitted under s 112(4) of the GA Act.
27 It is important to bear in mind that the public interest principles identified above necessarily look beyond the particular cases. A grant of an inspection in a particular case may set an unwelcome precedent
28 The orders sought are, in essence, to aid the proposed administrators of the estate of FHF to administer the estate and will accrue for the beneficiaries of the estate of FHF. Two reasons are advanced by the applicants as to why the orders should be made:
1) costs; and
2) the interest of the Tribunal in enforcing its orders.
29 Despite the increasing number of administration orders made by this Tribunal, those orders are relatively rare in the context of the overall population.
30 Where no administration order of this Tribunal applies, an executor or administrator will have to make inquiries as to the assets and liabilities of the deceased. If there was an administration order made by this Tribunal, then doubtless, the existence of documents filed by the administrator of the represented person under s 80 of the GA Act would be convenient to an executor/administrator.
31 However, convenience does not amount to a cogent reason for permitting access to documents under s 112(4) of the GA Act.
32 Over the centuries, the probate jurisdiction of the Supreme Court and its predecessors has developed various orders to assist an executor/administrator in gathering the assets of the estate. The fact that it may be less costly for an administrator to obtain an order under s 112(4) of the GA Act to assist in this process, does not amount to a cogent reason to permit access under s 112(4) of the GA Act to an executor/administrator of a deceased estate simply because it may save costs.
33 If the convenience of the executor/administrator or the cost savings provide a justification, then every executor/administrator of an estate of a formerly represented person would be entitled to the documents lodged with the Public Trustee.
34 It is not the purpose of the GA Act to provide for the convenience or cost savings of executor/administrators.
35 Clearly, the Tribunal has an interest in enforcing its orders. However, an executor/administrator of a deceased estate is not a person charged by law with conducting such investigations.
36 No public policy reasons have been identified as to why orders should be made under s 112(4) of the GA Act. Accordingly, the application is dismissed.
37 In the event that the documents were held by the Tribunal, then the s 112(4) application would be dismissed. Therefore, it is unnecessary to determine whether the Tribunal could or should order the Public Trustee to produce those documents to the Tribunal under s 35 of the SAT Act.
38 The Tribunal also notes that an executor/administrator could make an application under the Freedom of Information Act 1992 (WA). It is not for the Tribunal to usurp the Commissioner's discretion by determining how that discretion should be exercised.
Order
1. The application is dismissed.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT