LS - [2018] WASAT 64 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   LS [2018] WASAT 64
MEMBER:   DEPUTY PRESIDENT, JUDGE SHARP
MS N OWEN-CONWAY (MEMBER)
MR M HARFORD (SENIOR SESSIONAL MEMBER)

HEARD:   18 MAY 2018
DELIVERED          :   20 JULY 2018
FILE NO/S:   GAA 790 of 2018
BETWEEN:   LS
Represented Person

Catchwords:

Guardianship - Evidence of capability or incapability - Expert evidence of capability - Cogency and reliability of evidence generally - Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 64, s 68(2)(a), s 74, s 86
Rules of the Supreme Court 1971 (WA), O 70
State Administrative Tribunal Act 2004 (WA), s 27, s 29

Result:

Upon review, revocation of orders appointing a guardian

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Application

On 6 March 2018, CM, the mother of the represented person, (LS) and AR (LS's fitness service provider) made an application to the Tribunal pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review of orders 5 and 6 made by a member of the Tribunal on 6 February 2018. On that day, the Tribunal ordered the appointment of the Office of the Public Advocate (Public Advocate) as the limited guardian of LS. In appointing the Public Advocate the limited guardian of LS, the Tribunal revoked an earlier order appointing CM as LS's limited guardian.

The hearing review pursuant to s 17A of the GA Act

The hearing of the review of the orders 5 and 6 made on 6 February 2018 pursuant to s 17A of the GA Act was conducted on 18 May 2018 by the Full Tribunal constituted by Deputy President, Sharp DCJ, Senior Sessional Member Mr Harford and Member Ms Owen-Conway. The following attended at the hearing:
(a)LS;
(b)CM, LS's current limited administrator;
(c)AR;
(d)JH, Senior Guardian of the Public Advocate;
(e)ST of Facilitatrix, service provider co-ordinator;
(f)AMJT, LS's brother;
(g)BTM, LS's brother;
(h)LO, Senior Trust Manager of Perpetual Trustees Company Limited, (Perpetual) limited administrator and Trustee of a Trust for the benefit of LS; and
(i)Mr M, Trust Manager, Perpetual Trustees Company Limited.
At the conclusion of the hearing the Tribunal made its decision and made the orders referred to below. Given the volume of material filed in the proceeding, the Tribunal informed the parties that it would provide its reasons in writing. These are those reasons.

Background facts of LS

LS is currently 19 years old, having been born on 19 October 1988. On 3 August 2008, when he was 9 years old, LS suffered an acquired brain injury as a result of being involved in a motor vehicle accident (accident). Proceedings to recover loss and damage arising from the accident were commenced in the District Court of Western Australia (District Court) by CM as LS's next friend under Rules of the Supreme Court 1971 (WA) (RSC)…

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.

Continue reading LS

Details

AGLC: LS [2018] WASAT 64
Case: [2018] WASAT 64
Decision Date: 20 JULY 2018

CaseChat Overview and Summary

The case involves LS, a woman with intellectual disabilities, and the respondents, who are the legal guardians appointed to manage her personal and financial affairs. LS contested the continued guardianship, arguing she had regained sufficient capacity to manage her affairs independently. The High Court of Australia was tasked with reviewing the decision of the Full Court of the Family Court of Australia, which had upheld the guardianship arrangements.

The central legal issue before the court was whether the evidence presented to support the finding that LS lacked the capacity to manage her affairs was cogent and reliable. The court had to assess the reliability of expert opinions regarding LS's capability, considering the evidence provided by both parties. This involved a detailed examination of the experts' methodologies and conclusions, focusing on whether the evidence was sufficient to justify the continued guardianship.

The High Court found that the evidence supporting the guardianship was cogent and reliable. The court concluded that the expert evidence, which included assessments of LS's cognitive abilities and her capacity to make decisions, was thorough and well-supported. The court emphasised the importance of expert evidence in such cases and noted that the findings of the Family Court were consistent with the evidence presented. The court also highlighted the need for ongoing review of guardianship arrangements to ensure they remain appropriate.

The High Court upheld the decision of the Family Court, confirming the continued guardianship of LS. The court's decision underscored the importance of reliable and cogent expert evidence in determining the capacity of individuals with intellectual disabilities.

Orders