LT (Deceased) and JTW
[2005] WASAT 264
•3 OCTOBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: LT (Deceased) and JTW [2005] WASAT 264
MEMBER: MR J MANSVELD (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 3 OCTOBER 2005
FILE NO/S: GAA 1518 of 2005
BETWEEN: LT (Deceased)
Represented person
AND
JTW
Applicant
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 - Request for a statement of reasons
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 78(1)(b), s 112(1), s 112(2), s 112(4), Sch 1 Pt B cl 5 (repealed)
State Administrative Tribunal Act 2004 (WA)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Represented person : Unrepresented
Applicant: Self-represented
Solicitors:
Represented person : N/A
Applicant: Self-represented
Case(s) referred to in decision(s):
Re MB Unreported Decision of the Full Board Hon Justice ML Barker, President, Mr J James, Member and Ms J Stanton, Member, delivered 9 June 2004
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Case(s) also cited:
Re MM (2001) 28 SR (WA) 320
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
A granddaughter and former joint administrator of a woman (now deceased) applied to the Tribunal to inspect certain documents and materials lodged with or held by the Tribunal in respect of the woman. The granddaughter also requested that a statement of reasons be produced for a decision made by the former Guardianship and Administration Board in 1993.
The granddaughter was seeking the documents and materials held by the Tribunal to assist her with a Supreme Court action she and another person had initiated with respect to a dispute about the woman's will.
The application for inspection was dismissed as it was not considered in this case, in the public interest for the documents and materials held by the Tribunal to be used for what the granddaughter was proposing. The Guardianship and Administration Act1990 (WA) was designed to protect people with disabilities of a type which prevents them from making reasonable judgements about their personal life and financial estate. Information is provided to the Tribunal by professionals and other people, including family and friends of the person with the disability, and it is important that the information is given in the knowledge that it will only be used in other forums, in limited circumstances.
The request for reasons for a decision made by the Guardianship and Administration Board in 1993 was refused. Since the Guardianship and Administration Board no longer exists, it appears that there is no mechanism for such reasons to be produced. Even if there were, it was considered that the time between the decision and the request, nearly 12 years, meant that a statement of reasons was unlikely to adequately reflect the interpretation of the decision made.
Background
These reasons relate to an application made by JTW to inspect documents on the file of LT (deceased). Within that application, there is a request for reasons of a decision made by the former Guardianship and Administration Board (the Board) on 4 November 1993.
The jurisdiction of the 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.
On 4 November 1993, the Board appointed JTW (then known as JT) and HB as LT's joint plenary administrators. JTW and HB are the granddaughters of LT. An application for guardianship was dismissed by the Board.
On 14 January 1994, JTW filed an application to inspect documents on the file of LT. The application was made pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) (the Act) and was approved by the Board. The documents sought were the initial applications for administration and guardianship, a submission by the Public Trustee and the financial and legal details of where LT's bank accounts and legal papers were held. In her application, JTW stated that she wished to inspect the documents because she wanted a complete copy of the application form for her records, she would use the Public Trustee submission as a guide to her administrator's duties and she needed to be aware of who was holding LT's financial and legal effects.
On 15 June 1994, JTW and HB were reappointed LT's joint administrators by the Board, this time with limited functions.
On 17 November 1998, JTW and HB were reappointed LT's joint administrators by the Board and given plenary powers. The administrators were authorised to make gifts and donations from LT's estate to an amount not exceeding $2000 per annum.
On 11 December 2003, JTW and HB were reappointed LT's joint plenary administrators by the Board. The gifting authority was increased to $2500 per annum. The order was to be reviewed by 11 December 2008.
LT passed away on 21 April 2005.
Decision
I have decided to dismiss the application to inspect documents and material held by the Tribunal in respect of LT. I have also refused the request for a statement of reasons for the decision made by the Board on 4 November 1993.
I will provide the reasons for my decision by firstly detailing the application to inspect, then stating the relevant legislation and lastly analysing the legislation and case law against the purpose for which the inspection is sought. I will finally discuss the request for the statement of reasons.
The application to inspect documents or material held by the Tribunal
The substantive application is the one to inspect documents from the file of LT pursuant to s 112(4) of the Act. On the form, "Request to Inspect Documents", JTW seeks to inspect the medical records of LT's former general practitioner, Hollywood Hospital or social workers; notes that might have been made by the Tribunal member on 4 November 1993; letter and transcripts from DE (described by JTW as an interested party) for the November 1993 hearing and the reasons for the Board decision of 4 November 1993.
In the letter accompanying the form and filed with the Tribunal on 1 September 2005, JTW expands on her request. She includes "…the documents mentioned on the application form along with any others that may seem relevant". She states further; "A second hearing was on the 4th May 1994 [sic] where a different tribunal [sic] member heard the case. At that hearing the family had been made aware that Gran's Will had been altered and some documentation regarding this might be on your records. We also request to inspect these and beg your assistance in searching them as per the others".
JTW also seeks a written transcript of a particular part of that hearing in which DE is alleged to have retracted what he said in his letter submitted to the hearing in November 1993.
JTW states that she and HB have commenced an action in the Supreme Court to contest the validity of a particular Will of LT. Her reason to seek inspection of the documents and materials mentioned is "as supportive evidence for our claim we are looking for any insights that people may be able to offer on the way that Gran viewed those close to her and might have wished her estate to be passed on. What we are looking for is any evidence you may have that supports Gran's wishes in relation to ourselves and any others she may have referred to".… "we are also seeking further evidence to show Gran was not of sound mind at the time of writing her last Will…."
As mentioned, as part of the application to inspect, JTW has requested reasons for the decision made by the Board on 4 November 2003 appointing her and HB as joint plenary administrators for LT.
The relevant legislation
A person's entitlement to inspect or have access to documents or other materials held by the Tribunal is dealt with by s 112 of the Act.
"112. Inspection of records
(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."
Sections 112(1) and (2) are not relevant to the application by JTW. As determined by the Full Board of the Guardianship and Administration Board in Re MB Unreported Decision of the Full Board Hon Justice ML Barker, President, Mr J James, Member and Ms J Stanton, Member, delivered 9 June 2004 at paragraph 55:
"As in the case of the right created by s 112(1), the right given by s 112(2) is for the benefit of parties to pending proceedings to facilitate a proper hearing of an application before the Board."
In the present application, the proceedings concerning LT are complete and therefore JTW is unable to rely on s 112(1) or (2) to inspect or have access to documents or materials held by the Tribunal.
Section 112(4) is the relevant provision. The Full Board in Re MB (supra) stated the policy underpinning this provision (at para 35):
"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 at 332.
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, 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."
And at paragraph 57:
"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 Board, to inspect or otherwise have access to a document or material lodged with or held by the Board for the purposes of any application, or to any accounts admitted under s 80."
Should the application to inspect, succeed?
There are a number of issues that go to the heart of the inspection regime envisaged by the Act. They are, the legislative intention of the Act, the information that is provided to the Tribunal to assist in the achievement of the Act's intention, the right to inspect documents and materials within that framework and finally, the use of the discretion given in s 112(4) of the Act.
E M Heenan J said in the decision of the Full Court of the Supreme Court in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at paragraphs 43 and 44:
"….the Guardianship and Administration Act is intended to "provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes" (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection."
"…The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes."
To fulfil the intention and objectives of the Act, the Tribunal relies upon the provision of information to it that is forthright and that will often contain sensitive material and contentious opinion. The information is provided by medical practitioners, allied health and other professionals and family and friends of the person for whom an application for the appointment of a guardian or administrator has been made. The information is often provided in circumstances where the person for whom an application is made is unable or only partially able to contribute to the hearing process and give answer to the information made available to the Tribunal on their behalf.
The information is provided to enable the Tribunal to make a determination on an application that accords with the substantial merits of the question to be resolved, for example, whether the person is in need of an administrator or guardian. The people who provide the information can expect to be questioned on it and the credibility of their information tested as to its value to the Tribunal. As already mentioned, when an application is being heard by the Tribunal, the inspection regime is covered by s 112(1) and (2) of the Act. This allows for a limited number of people to inspect documents and materials held by the Tribunal, in the context of submitting to the Tribunal information and opinion, that will assist in the decision to be made on a particular application. This is largely uncontroversial but even so is restricted in its scope. As stated in Re MB (supra) at paragraph 34:
"…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."
Once an application is decided by the Tribunal, a person who provided information could generally expect that information to be maintained within the boundaries of the application and hearing process, which would include a review or appeal of the Tribunal’s determination. As identified in Re MM (supra) and confirmed in Re MB, this is important in maintaining the integrity of the processes of the Tribunal, to ensure that people continue to feel confident to provide candid information to the Tribunal without fear that the information will, as a matter of course, find its way into other forums.
Situations can be envisaged, however, where after a proceeding is completed an appointed guardian or administrator might seek to inspect material held by the Tribunal for the purpose of fulfilling their functions. It may apply as occurred when JTW made an application to inspect certain documents soon after she was appointed LT's joint administrator in November 1993. Or it might be an application by a guardian or administrator of another represented person who has a demonstrated interest in the other person's estate. On its face these would seem to be reasonable requests under s 112(4) of the Act.
What these present are clear examples of the inspection regime operating within the intent of the Act, firstly, to assist people to provide information to the Tribunal to enable a decision to be made on an application and secondly, to facilitate the working of any order the Tribunal has made. In the first example, the person under disability, or their representative, can inspect as a right whilst any other party can inspect if allowed by the Tribunal. In the second example, that caught by s 112(4), the Tribunal must decide the application to inspect by whomever made, on the merits of that application.
To speak of limiting the circumstances by which inspection might be allowed is not to fetter the broad discretion available to the Tribunal under s 112(4). This was restated by the Full Board in Re MB (supra) at para 66:
"…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."
"….It is for the Board in every case to decide if there are very good reasons to permit inspection or access having regard to the facts and circumstances raised in the application before it. In some cases, the exercise of the discretion may be constrained by the principle expressed in s 4(2)(a) of the Act, namely, that in the performance of its functions "the primary concern of the Board shall be the best interests of any represented person, or of a person in respect of whom an application is made."
I accept that the example give in Re MB of an "official investigation in the public interest" could be a situation where an inspection under s 112(4) is allowed in the sense that public policy dictates that legislation, in general, is subject to such scrutiny. I return, however, to the intention and objectives of the Act as stated in these reasons. It is my view, that the discretion allowed me by s 112(4) of the Act should otherwise only be exercised for applications to inspect that demonstrate a reasonable relationship between the purpose to which the requested information is to be put and those intentions and objectives.
I am not satisfied that the application by JTW is in the nature of circumstances that should lead me to exercise my discretion under s 112(4). LT is deceased. JTW was her joint administrator, but by virtue of s 78(1)(b) of the Act, she ceased to be administrator upon the death of LT in April 2005. The action JTW states she is taking in the Supreme Court which is to dispute LT's Will, and for which the inspection is sought, does not in my view, exhibit that "reasonable relationship" with the objectives of the Act to which I have referred.
I therefore dismiss her application to inspect or have access to any document or material lodged with or held by the Tribunal concerning LT.
The Supreme Court may consider, in the appropriate case, to ask that LT's file, held by the Tribunal be made available to the Court to provide material or documents that may be on that file to assist the Court.
The request for reasons for decision for the hearing on 4 November 2003
As mentioned earlier in these reasons and as part of the application to inspect, JTW has requested reasons for the determination of the Board on 4 November 2003 appointing her and HB as the joint plenary administrators of LT. The law at the time the decision was made by the Board was contained in Sch 1 to the Act, Pt B, cl 5 (Repealed by No 55 of 2004 s 464(3)). Clause 5 read:
"Where the Board makes a determination, it shall, if requested to do so by a party to the proceedings within 30 days of the date of the determination or such further time as the Board allows, furnish that party, within a reasonable time after the request, with a statement of its reasons for the determination."
No request was made pursuant to cl 5 within the 30 days period and subsequently until the current request by JTW nearly 12 years after the determination of the Board.
It is doubtful in my view that I am able, within the provisions of the Act (which is the enabling Act) and the State Administrative Tribunal Act2004 (WA), to authorize the statement of reasons JTW seeks, given the repeal of cl 5 of Pt B to Sch 1 of the Act. However, even if I were able to decide that reasons could be produced, I would refuse JTW's request. The time between the hearing and the request is of such length that any statement of reasons able to be produced now would suffer the effects of distant or lost memories, such that there would be an unacceptable risk of it not representing an adequate interpretation of the decision made. No doubt legislation which provides for written reasons to be produced upon request and within a specified time frame, does so for that reason.
Order
The application of JTW is dismissed.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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