LRRB
[2005] WASAT 37
•23 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: LRRB [2005] WASAT 37
MEMBER: MS F CHILD (MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 23 MARCH 2005
FILE NO/S: ID 51 of 2004
BETWEEN: LRRB
Applicant
Catchwords:
Guardianship and Administration - Inspection of documents - Represented person deceased
Legislation:
Guardianship and Administration Act 1990 (WA) s 112, s 112(4)
Result:
Application for Inspection of Documents dismissed
Category: B
Representation:
Counsel:
Applicant: Nil
Solicitors:
Applicant:
Case(s) referred to in decision(s):
Re MB (Unreported Decision of the Full Board Hon Justice ML Barker, President, Mr J James and Ms J Stanton, Members, delivered 9 June 2004)
Re MM (2001) 28 SR (WA) 320
Case(s) also cited:
DeHass v Murcia and Associates, unreported SCt of WA (Templeman J);
Library No 980633 14 September 1998
MS F CHILD (MEMBER)
REASONS FOR DECISION
These reasons relate to a determination by the Tribunal that an application for inspection of documents be dismissed.
Application
An application for inspection of documents held on a file now in the control of the State Administrative Tribunal was made on 29 December 2004 under s 112(4) of the Guardianship and Administration Act 1990, (WA) ("the Act"). The file contains documents relating to applications made to the Guardianship and Administration Board in respect of LRRB.
The jurisdiction of the Guardianship and Administration Board was absorbed by the State Administrative Tribunal from 24 January 2005 and the Tribunal now exercises the functions under the Act formerly exercised by the Board including determinations under s 112(4). As stated above, files formerly maintained by the Board are now in the control of the Tribunal.
LRRB was made subject of an administration order dated 22 October 2002 in favour of the Public Trustee. LRRB died in October 2003.
The applicant for inspection is a solicitor acting for a person said to be named in a will of LRRB.
For the purposes of these reasons the applicant's client's name will be anonymised consistent with the practice of the Tribunal in respect of applications made under the Act to avoid identification of the represented person.
The application was framed in the following terms:
"I wish to inspect all documents relating to the Guardianship and Administration Board's hearing concerning LRRB, including but not limited to submissions made, evidence tendered and orders made by the Board. I am an employee of Minter Ellison who are representing Mrs ES. Mrs ES is a beneficiary of a Will of LRRB. LRRB's capacity is in issue and the documents go to the heart of that issue and will affect the nature of our advice to our client."
The application for inspection of "all the documents relating to the hearing" … "the submissions made, evidence tendered" is dismissed. The application is allowed, in part, in respect of a copies of the orders made by the Board.
Section 112(4)
The Full Board of the Guardianship and Administration Board, when considering an application for review for refusal of inspection under s 112(4) made the following statements in respect of the operation of that section. (see Re MB (Unreported Decision of the Full Board Hon Justice ML Barker, President, Mr J James and Ms J Stanton, Members, delivered 9 June 2004) at [34]:
"The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Board are limited. This is to be expected in the administration of an Act that provides for the guardianship of adults who need assistance in their personal affairs and the administration of the estate of persons who need assistance in their financial affairs …" "Documents and other materials held by the Board very often go to matters that are highly confidential in respect of the health and safety of the person who may be in need of a guardianship order. In those circumstances it is to be expected that only a limited class of persons would ordinarily be entitled to inspect documents held by the Board."
And later at [35] the Full Board restated the policy underpinnings of the provision:
"As observed by the Board on an earlier occasion, the provisions of s 112 reinforce two important policies: firstly, the protection of the privacy of the person involved in the proceedings before the Board and in particular a proposed represented person or a represented person; and secondly, the public interest in the integrity of the Board processes which relies on the ability to obtain sensitive information from a variety of sources: see Re MM (2001) 28 SR (WA) 320
We agree with the observation of the Board in Re MM (supra), at 332, that s 112(4) provides the Board with a broad discretion on the application of any person or on its own initiative to allow inspection of or access to documents lodged with or held by the Board for the purposes of any application.
We also agree with the further expression of opinion of the Board in Re MM, (supra) at 332, that s 112(4) is not limited in its terms and, in an appropriate case, may include inspection or access to relevant documents or materials for purposes other than proceedings before the Board, although the circumstances in which the Board would ordinarily consider exercising this power may be considered limited. As the Board said in Re MM, at 332:
" … given the sensitive and confidential nature of much of the material held by this Board, we are of the view that where an applicant requests the Board to exercise its discretion under s 112(4) for purposes not related to proceedings before the Board, he or she must provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed (see generally DeHass v Murcia and Associates, Supreme Court of Western Australia Library No 980633, per Templeman J.) It is not sufficient to rely on a general desire to be informed."
When considering the nature of the discretion to allow access under s 112(4), the Full Board confirmed in that the discretion is a wide one and may be exercised on an application or at the initiative of the Board (now the Tribunal). The Full Board considered circumstances when this discretion might be exercised: at [66 and 67]
" … we think there are good reasons, relating to good public administration, why the Board's power to grant access to relevant documents and materials under s 112(4) should not be construed narrowly. It is possible to envisage a number of circumstances in which, for example, persons charged by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with and are held by the Board for the purpose of an application. The Board should be able to determine on an application‑by‑application basis whether the request for access by a person should be granted. But as the Board said in Re MM (supra), the reasons advanced in support of a request for access under s 112(4) will need to be cogent and be justified on a 'need to know' basis."
The present application for inspection is not in the nature of circumstances that the Full Board envisaged in Re MB (supra) which might lead to the exercise of the discretion in favour of the applicant, such as an "official investigation in the public interest".
Nonetheless, the Full Board confirmed the requirement that each application under s 112(4) be assessed and determined application by application. In this case the applicant, a solicitor, seeks very wide access to all the documents, submissions and evidence on the Tribunal's file for the purposes of advising her client, ES. As the applicant stated in earlier correspondence with the Board the application had been made because of a "likely dispute between parties as to which of LRRB's Wills should be propounded".
The submissions and reports filed and evidence given at the hearing in respect of LRRB went to the issue of whether LRRB was a person for whom an administration order could be made: whether he was by reason of a mental disability unable to make reasonable judgments in respect of matters relating to all or any part of his estate and was in need of an administrator. The evidence or reports produced at the request of the Board in relation to the applications made in respect of LRRB in 2002, and now held on the file, were produced for that purpose.
The name of the client of the applicant does not appear in the records on the file of those who attended the hearing in respect of LRRB or in the list of interested parties.
To allow inspection of the documents by the applicant for the stated purpose of the application does not uphold the public interest, identified by the Full Board in Re MM (supra) and confirmed in Re MB (supra) in the maintaining the integrity of the processes of the Board (now the Tribunal) in dealing with applications for the appointment of guardians and administrators. As was stated by the Full Board that process "relies on the ability to obtain sensitive information from a variety of sources". If it was apparent that reports provided for the purpose of dealing with an application for the appointment of an administrator might be available in the way sought by the applicant then those who produce reports or put material before the Tribunal at hearings may be hesitant to do so.
A dispute between parties in respect of a will is a matter which may ultimately be dealt with by the Supreme Court. The Court may consider in the appropriate case to ask that a file of the Tribunal be made available to the Court to provide material or documents that may be on that file to assist the Court.
Conclusion and order
The purpose for which access is presently sought does not appear to be a sufficient reason for allowing the applicant access to documents or materials held by the Tribunal in relation to the proceedings that were before the Board concerning LRRB in 2002.
Application is dismissed but copies of the orders will be provided to the applicant.
I certify that this and the preceding six pages comprise the reasons for decision of the State Administrative Tribunal.
_____________________
F CHILD
Member
0
0
1