MS
[2020] WASAT 66
•19 JUNE 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MS [2020] WASAT 66
MEMBER: MS N OWEN-CONWAY, MEMBER
HEARD: 18 MARCH 2020
DELIVERED : 19 JUNE 2020
FILE NO/S: GAA 3627 of 2019
MS
Represented Person
Catchwords:
Guardianship and administration orders - Review of abuse of process - Repetitive allegations considered in previous application - Nature of the allegations - Formulated to cause personal and professional embarrassment
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(3), s 17A, s 84, s 84(1), s85(1)(c), s 85(1)(d), s 85(2), s 86(1)(c), s 87(1)
State Administrative Tribunal Act 2004 (WA), s 47
Result:
Application for review of guardianship and administration orders pursuant to s 85(1)(c) of Guardianship and Administration Act 1990 dismissed as an abuse of process
Application for leave to review administration order pursuant to s 87 refused and dismissed as an abuse of process
Application for leave to review guardianship order pursuant to s 87 granted in part only
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Erujin Pty Ltd v Western Australian planning Commission [2010] WASC 326
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ninan v Valuer General (WA) [2016] WASCA 120
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant is the youngest child of the represented person (RP). On 14 February 2019 a Full Tribunal made the following orders pursuant to s 43, s 64 and s 17A of the Guardianship and Administration Act1990 (WA) (GA Act) concerning the RP:
The Tribunal declares that the represented person:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)is in need of an administrator of her estate;
(c)is incapable of looking after her own health and safety;
(d)is unable to make reasonable judgments in respect of matters relating to her person;
(e)is in need of oversight, care or control in the interests of her own health and safety; and
(f)is in need of a guardian,
and the Tribunal orders that:
1.Orders 1, 2, 3 and 5 of the Tribunal dated 16 November 2018 are affirmed.
For the avoidance of doubt those orders are as follows:
The administration order dated 26 October 2017 is revoked and an order in the following terms is substituted for it:
(a)[RD] of [address], Victoria is appointed administrator of the estate of the represented person with all the powers and duties conferred by the Act.
The guardianship order dated 27 April 2018 is confirmed as follows:
(b)The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(i)To decide where the represented person is to live, whether permanently or temporarily;
(ii)To decide with whom the represented person is to live;
(iii)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person; and
(iv)To determine what contact, if any, the represented person should have with others and the extent of that contact.
(c)The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
(d)The guardianship order is to be reviewed by 16 November 2023.
2.Order 4 of the Tribunal dated 16 November 2018 is revoked and the administration order is to be reviewed by 16 November 2023.
On 20 September 2019, the Tribunal received a letter from the applicant. The applicant asserts that she and her mother, the RP, 'are profoundly aggrieved by [the] State Administrative Tribunal orders made to date'. The orders listed as being those which aggrieve the applicant and the RP are as follows:
•GAA 3958 of 2018 and GAA 4009 of 2018 but comprising the orders made in GAA 3958 of 2018 (following its consolidation with GAA 4009 of 2018), made by the Full Tribunal on 14 February 2019;
•GAA 3958 of 2018 and GAA 4009 of 2018 being an order made by the Acting President on 19 December 2018 consolidating GAA 3958 of 2018 and GAA 4009 of 2018;
•GAA 2713 of 2018 on 16 November 2018, following the hearing of that application on 17 October 2018;
•GAA 1105 of 2018 made by a single member of the Tribunal on 27 April 2018;
•GAA 2439 of 2017 made by the Full Tribunal on 26 October 2017; and
•GAA 1481 of 2017 made by a single member of the Tribunal on 21 July 2017.
By letter dated 4 November 2019 Mr RD, the oldest child of the RP and the administrator of the RP's estate, wrote to the Tribunal asserting that he believed that the applicant's application in this proceeding is frivolous, vexatious and an abuse of the Tribunal's process. He contended that the proceeding should be dismissed pursuant to s 47 of the State Administrative Tribunal Act2004(WA) (SAT Act).
Ultimately, Mr RD's application for an order dismissing this proceeding was heard on 18 March 2020. This is the decision following that hearing and the reasons for that decision.
History of the past proceedings
In order to understand the application to dismiss the proceedings pursuant to s 47 of the SAT Act, a brief history of all of the orders made pursuant to the GA Act in respect of the RP must be considered.
On 21 July 2017 in GAA 1481 of 2017, a single member of the Tribunal made an order appointing Mr RD and Mr JD (the RP's other son) joint plenary administrators of the RP's estate. Further, the Tribunal also ordered the revocation of an enduring power of attorney (EPA) dated 24 May 2005, whereby the RP granted the applicant (as the donee) the power to make decisions concerning the RP's estate on behalf of the RP. On that occasion the Tribunal also appointed the Office of the Public Advocate as the RP's limited guardian.
The application in GAA 1481 of 2017 was made on behalf of Sir Charles Gairdner Hospital and the West Australian Health Service. The RP was a patient of that hospital at the time and appeared incapable of making a decision about her future care, residence and treatment. The Tribunal further ordered that the orders were to be reviewed by 21 June 2019.
The applicant applied for a review of the order made on 21 July 2017 in GAA 1481 of 2017 pursuant to s 17A of the GA Act. That review (GAA 2439 of 2017) was conducted by a Full Tribunal comprising a Deputy President and two members on 26 October 2017. Upon review of the administration order made in GAA 1481 of 2017, the Full Tribunal affirmed the order made on 21 July 2017. By those orders the Full Tribunal therefore affirmed the order made in GAA 1481 of 2017 revoking the EPA and affirmed the appointment of Mr RD and Mr JD as the joint plenary administrators of the RP's estate. Upon review of the guardianship order made in GAA 1481 of 2019, the Full Tribunal however, set aside the order appointing the Public Advocate as the RP's limited guardian and substituted its own order and appointed the applicant as the limited guardian for the RP with authority to determine where the RP was to live; to determine with whom the RP was to live; to make treatment decisions for the RP, subject to the GA Act, and to make decisions concerning the services to which the RP should have access. The Full Tribunal also ordered that the Public Advocate be appointed a limited guardian with the authority to determine with whom the RP should have contact and the length of that contact.
The Full Tribunal ordered that its guardianship and administration order was to be reviewed by 31 October 2018. That review would have taken place pursuant to s 84 of the GA Act.
On 21 March 2018 an application was made in GAA 1105 of 2018 pursuant to s 85(2) of the GA Act by the RP's then residential care service provider who sought a review of the guardianship order made in GAA 2439 of 2017, appointing the applicant as the limited guardian for the RP.
On 27 April 2018 in GAA 1105 of 2018 a single member of the Tribunal presiding at the final hearing of that application made an order revoking the guardianship order made in GAA 2439 of 2017 and further ordered that the Public Advocate be appointed as the limited guardian for the RP. As a consequence, the applicant's period of limited guardianship in respect of the RP was revoked.
The single member of the Tribunal on 27 April 2018 made an order that the guardianship order thereby made was to be reviewed pursuant to s 84(1) of the GA Act by 31 October 2018 at which time the Full Tribunal's administration order made in GAA 2439 of 2017 on 26 October 2017 would also be reviewed.
As there was no review sought of the administration order made in GAA 2439 of 2017, that order continued in operation and was to be reviewed by the Tribunal pursuant to s 84 of the GA Act by 31 October 2018.
On 17 October 2018, in GAA 2731 of 2018 the Tribunal conducted a hearing of the review of the guardianship order made in GAA 1105 of 2018 and the administration order made in GAA 2439 of 2017. The Tribunal reserved its decision following the hearing on that date and made orders on 16 November 2018. The Tribunal made an order revoking the earlier administration order made in GAA 2439 of 2017 and instead appointed Mr RD as the sole plenary administrator of the estate of the RP. The Tribunal made a further order appointing the Public Advocate as the limited guardian of the RP.
Shortly prior to that date the applicant had made two applications (GAA 1358 of 2018 and GAA 1359 of 2018) which were considered by a senior member of the Tribunal to be misconceived and both of those applications were dismissed pursuant to s 47 of the SAT Act.
On 10 December 2018 in GAA 3958 of 2019 Mr JD, the former joint administrator, sought a review pursuant to s 17A of the GA Act by the Full Tribunal of the orders made in GAA 2731 of 2018. He sought a review of all of the orders made on 16 November 2018 but the focus of his application was the appointment of Mr RD as the sole administrator. Mr JD's contention was that he was the most suitable person to be appointed as the administrator of the RP's estate and upon review he should be so appointed.
On 13 December 2018 in GAA 4009 of 2018 the applicant on her own behalf and purportedly on behalf of the RP also applied for a review of all of the orders made in GAA 2731 of 2018. The applicant asserted that she was the RP's primary care giver, notwithstanding the fact that the RP was resident in a residential care home. The applicant further asserted that she is the only person who genuinely cares for the RP and who genuinely has the RP's best interests at heart. She asserted that the care service provider had ever-changing personnel (including cooks and kitchen hands) which was deleterious to the RP. The applicant asserted that the Public Advocate's delegated guardian (delegated guardian) and the other children of the RP had acted 'vexatiously' and provided 'false and misleading information' to the Tribunal and others to 'achieve their current orders' (that is, the orders made on 16 November 2018) and 'alternative agenda to [the RP's] best interests'. The applicant proceeded to make what can only be described as scandalous allegations against each of the other children of the RP. The applicant in summary asserted that the delegated guardian had acted against the RP's interest and against the applicant's interests.
On 19 December 2018, during a directions hearing in GAA 3958 of 2018 and GAA 4009 of 2018, the Acting President ordered GAA 4009 of 2018 to be consolidated with GAA 3958 of 2018, the latter being the lead proceeding.
GAA 3958 of 2018 (consolidated with GAA 4009 of 2018) was heard by the Full Tribunal constituted by the Acting President and two members on 14 February 2019. On that day the Full Tribunal made the order referred to in full at the commencement of these reasons.
What is in issue in this proceeding?
Mr RD wishes to continue as the administrator of the estate of the RP and no other person is advanced as the administrator jointly with him or solely in his place, save for the applicant. Similarly, no other person save for the applicant advocates or asserts that he or she should be appointed as the guardian for the RP. The question then arises in this proceeding whether the order made by the Tribunal on 14 February 2019 to appoint the Public Advocate as the limited guardian for the RP and Mr RD as the sole plenary administrator of the estate of the RP should be revoked, affirmed or varied in some way.
Procedural history of this proceeding
As stated, the application comprises the one letter dated 20 September 2019, which is of significant length. Attached to that letter is another letter from the applicant to the delegated guardian. By order dated 7 October 2019 the senior member conducting directions in this proceeding ordered that the letter of 20 September 2019 be taken as an application made pursuant to s 85(1)(c) and (d) of the GA Act. Those provisions provide:
Without limiting section 84 or 86, the State Administrative Tribunal shall review a guardianship or administration order if a guardian or administrator -
…
(c)has been guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders him unfit to continue as guardian or administrator; or
(d)appears to the Tribunal to be incapable by reason of mental or physical incapacity of carrying out his duties[.]
On 14 October 2019 the Tribunal ordered that notification of the proceedings be given to all relevant parties forthwith. The Tribunal also ordered that on or before 4 November 2019 the applicant was to file with the Tribunal and furnish to other parties specific details of the neglect, misconduct or default which renders the guardian or administrator unfit to continue or incapable, by reason of his or her mental or physical incapacity, of carrying out their duties.
On 11 November 2019 the time for compliance with that order was extended. On 2 November 2019 in light of Mr RD's letter of 4 November 2019, the senior member ordered that the applicant was to lodge in the Tribunal and serve on the parties, any submission 'as to why the current application is not an abuse of process; by showing how, why or what allegations in these proceedings have not already been substantively before the Tribunal'.
On 16 December 2019 a member of the Tribunal conducting a directions hearing ordered the time for compliance with order 1 made on 11 November 2019 be extended to 6 January 2020.
Documents filed by the applicant
At no time has the applicant succinctly identified or identified at all the basis of the alleged neglect, misconduct or default or mental or physical disability for the purposes of s 85(1)(c) and (d) of the GA Act.
The applicant filed the following additional documents:
•a document received on 4 November 2019 headed 'State Administrative Tribunal - Matter No GAA 3627/2019, file 3661/2017';
•a bound booklet received by the Tribunal on 29 November 2019; and
•a letter dated 10 December headed 'State Administrative Tribunal matter GAA 3627/2019 file: 661/2017'.
Along with the letter dated 20 September 2019, the above identified three documents comprise the whole of the applicant's position in support of her application in this proceeding.
Analysis of complaints concerning the administrator order
The applicant's letter of 20 September 2019 referred to above, states:
•numerous breaches Guardianship and Administration Act 1990 Part 6;
•alleged beaches Criminal Code Act Compilation Act 1913 Part III, Part V
•numerous breaches Privacy Act 1988;
•numerous breaches Aged Care Act 1997;
•breaches Retirement Villages Act 1992
•vexatious and frivolous conduct;
•misleading and false financial reports presented;
•material information withheld;
•Not fit and proper, not 'suitable'; [RD] is IN FACT a twice bankrupt, knowingly withheld and knowingly misrepresented - not a voluntary bankrupt as he declared 16 November 2018 and 14 February 2019 at SAT Hearings;
•continued failure to act in the best interests of The Represented Person.
Further reasons, justification, evidence to be provided in writing and orally.
The 'questions of law', raised by the applicant, in the letter dated 20 September 2019 include:
•inter-jurisdictional complexities;
•inter-jurisdictional transactions without proper legal authority;
•GAA 1481 of 2017 21 July 2017 Vexatious Proceedings Restriction Act2002 - S3 (a)(b)(c)(d) - Application, Delay, Dearing, Orders;
…
•undisputed evidence and proof of my exemplary financial arrangement management for The Represented Person provided to SAT - May 2005 Enduring Power of Attorney - long and duly considered on the basis of [the RP's] known and well-founded knowledge and experience of the moral, ethical and financial conduct of all her children and their partners;
•May 2005 EPA is the legally documented directive of [the RP];
•SAT did not give (valid) reason for decision as to the revocation of May 2005 EPA;
•appointment of Administrator(s) questionable given May 2005 EPA in place, operating and maintaining the Represented Persons best interests;
•May 2005 EPA precedes and overrides any other claim to Power of Attorney of the Represented Person irrespective of jurisdiction;
•GAA 2439/2017 26 October 2017 - though present, the represented person … was not asked nor given an opportunity to verbally express her wishes or opinion as to whom should be appointed Administrator;
SAT has not corrected material errors of fact and law despite written advice;
material errors and omissions in transcripts;
GAA 3958+4009/2018 SAT Orders made on false assumptions;
current Guardian, Administrator(s), Agents decisions and conduct knowingly outside of legal authority at the time;
SAT has relied on false, unauthorised, misleading information provided to Office of Public Advocate and Public Trustee without their appropriate due diligence; placing the Represented Person at risk and subsequent decisions not in her best interests;
Orders were made without adequate or appropriate opportunity for my mother or I to rebut, or furnish true and accurate evidence.
appointed Administrator(s) and 'agents' unfit and unsuitable to hold a fiduciary position, to continue as Administrator(s), or to be appointed as Guardian for the Represented Person (SAT Decision 2018 Legal Practice Board WA v Garber);
•decisions and conduct by others are causing the Represented Person (and myself) financial, physical, emotional, psychological, social, cultural, detriment and harm ([[2012] WASC 306] - including actual or ostensible bias - SAT and others to date;
•GAA 3958+4009/2018 was not heard 'de novo'.
In relation to the heading 'urgent mandatory review: general rationale and statements', the applicant states that the RP is 95 years old; 'other parties' have an 'alternative agenda' to the best interests of the RP, are not genuine in their stated 'love' and 'care' of the RP; the RP's three eldest children are estranged from her and have been for many years; by contrast, the RP and the applicant are 'best friends' and the applicant understands the RP's 'unique needs'. The applicant asserts that she is the only person who will make all decisions in the RP's best interests to 'ensure she maximises and enjoys her twilight years without being subjected to further abuse and trauma'. The applicant notes again that she was the 'sole enduring power of attorney' for the RP who had been financially independent and secure. The applicant alleges that there has been a diminution in the RP's fortunes by almost $800,000 in the past two years and in respect of which there is no factual basis asserted.
In relation to the guardianship order review, the applicant's letter dated 20 September 2019 states as follows under the headings 'facts - urgent mandatory review':
Brief Written Reasons - Guardianship - OPA AR and 'agents'
•numerous breaches Guardianship & Administration Act 1990: S45(2), S51(1)(2), S53;
•numerous breaches Freedom of Information Act 1992;
•alleged breaches Criminal Code Act Compilation Act 1913 Part III, Part V
•numerous breaches Privacy Act 1988;
•numerous breaches Aged Care Act 1997;
•breaches Retirement Villages Act 1992
•vexatious and frivolous conduct;
•misleading, false, vexatious, defamatory medical evidence presented (including pertaining to me);
•material information withheld;
•continuing failure to act in the best interests of The Represented Person.
In relation to the urgent mandatory review, in addition to those stated, the applicant asserts that her previously 'implied' guardianship was 'bone fide' and there was no substantiated, justified or valid evidence to suggest otherwise. In addition, the applicant supplied a copy of a letter provided to the delegated guardian in which she complained to the delegated guardian that a proposed extended trip to Victoria by the RP, chaperoned by her daughter Ms JZ and son-in-law Mr BH to visit Mr RD and Mr JD in Victoria was not in the RP's best interest. She states that the RP was 'extremely distraught' and asserted that the RP did not wish to visit Mr RD or Mr JD in Victoria or to attend with Ms JZ and Mr BH, on the plane for that purpose. She asserted that the RP refused to go on a Mother's Day outing with Mr BH and Ms JZ and 'is either bruised, sick, traumatised and hospitalised after every unsupervised visit or conversation with any of her three eldest children'. The applicant states in the letter to the delegated guardian 'what are you not getting?? In your position at OPA that stands for the prevention of elderly abuse why are you not acting contrarily??'.
The applicant further asserted to the delegated guardian that the medical records and the medical history for the RP were not being considered by the current residential care service provider. The applicant asserts that Ms JZ and Mr BH continue to 'perfunctorily' visit the RP twice a week and continues to be bullied and is distraught after their visits.
In the letter of 4 November 2019, the applicant did not provide any substantially new information to what she asserted in the letter dated 20 September 2019. She again repeated that the RP's former residence was valueless because it is not fit for habitation, rental or sale and has been abandoned and in disrepair, because of the conduct of Mr RD as the administrator. She again asserts that the administrator neglected to 'fund necessities for health, hygiene, comfort, safety and wellbeing' including replacement hearing aids, and that he failed to fund 'necessary daily toiletries, necessary footwear, necessary clothing, necessary personal grooming, necessary items for leisure and personal interests' of the RP.
The applicant again asserts the Mr RD's appointment as administrator of the estate of the RP is 'contrary to the legally documented directive [the EPA] wishes and previous actions' of the RP.
In short, the applicant repeats the substance of the complaints made in the letter dated 20 September 2019 and which complaints have been the subject of allegations in the past proceedings. The balance of the document continues in the unstructured repetitive complaints about the delegated guardian, the residential care service provider, Mr RD as administrator and all of the RP's other children generally.
The bundle of documents dated 29 November 2019 contains repetitive statements of misconduct by others and documents that are alleged to support the repetitive allegations made in the letter of 20 September 2019, the document dated 4 November 2019, which allegations have been made a number of times in the earlier proceedings. In addition there are scandalous statements concerning the RP's other children, their children, alleged criminal activity and unnecessary photographs of faeces.
Relevantly, the bundle of documents contains:
•a photograph of the RP's back showing a red patch which the applicant asserts is an allergic reaction to a medication;
•a photograph asserting that the glass in the photograph contains wine given twice a day to the RP contrary to pharmaceutical warnings;
•photographs of alleged burst blood vessels of the RP's eyes caused by the RP crying so much because she does not wish to be in the nursing care home;
•other assertions and photographs pertaining to poor care by the residential care service provider;
•a photograph of an injury to the RP's arm which the applicant asserts the RP is too afraid to discuss.
These photographs are evidence of events that have occurred since 14 February 2019 and while they do not support an allegation pursuant to s 85(1)(c) or (d) of the GA Act, the photographs evidence new circumstances that support an application for leave to review being granted pursuant to s 87(1)(d) of the GA Act.
The principles of law
Section 47 of the SAT Act provides as follows:
(1)This section applies if the Tribunal believes that a proceeding
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal’s powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
Section 47 of the SAT Act confers power on a legally qualified member of the Tribunal to dismiss a proceeding upon the basis that it is an abuse of process (Erujin Pty Ltd v Western Australian planning Commission [2010] WASC 326 (Erujin) at [56]). The principles relating to abuse of process in a court of record 'including re-litigation of a matter that has been finally determined, are properly applied to SAT' (Erujin at [56]). The Tribunal is mindful of the fact that the applicant is not legally trained or legally represented and a degree of latitude should be applied when assessing whether an application made by an unrepresented person amounts to an abuse of process (Ninan v Valuer General (WA) [2016] WASCA 120 (Ninan v Valuer General)). The Tribunal is also mindful that the subject matter of the application is an elderly person residing in residential care; who has lost the presumed capacity referred to in s 4(3) of the GA Act; is especially vulnerable and in need of the exercise of the Tribunal's powers when properly sought pursuant to the GA Act. The Tribunal is further alerted to the possibility that 'beneath inadequately expressed and often irrelevant material there may lurk an arguable case' (Ninan v Valuer General citing Glew v Frank Jasper Pty Ltd[2010]WASCA87). Whilst the Tribunal is aware of these possibilities nonetheless, where it is clear that the events and allegations complained of in the new proceeding are repetitious of those previously made, heard and determined, then it is open to the Tribunal to dismiss the application as an abuse of process.
The Tribunal also considers that where the manner and nature of the allegations even if not repetitive are made to cause personal or professional harm or embarrassment to others, such proceedings may be dismissed as an abuse of process (Ninian v Valuer General). The Tribunal processes are not to be used for such purposes.
Consideration
With respect to the guardianship issues and the order made on 14 February 2019, the Tribunal considers that the only new facts raised in this proceeding are the applicant's complaints and allegations concerning the appearance in the photographs of redness around the RP's eyes which the applicant describes as burst blood vessels caused by crying brought about by the RP's alleged despair at her current predicament; the injury to the RP's arm which the applicant asserts the RP is too afraid to speak about; the alleged administering of alcohol to the RP, contrary to pharmaceutical warnings and the application of topical medication to the RP's skin and to which the RP is allergic.
All other assertions and allegations have been raised repeatedly and fully ventilated in the past Tribunal proceedings. To allow the applicant to repeatedly raise those same allegations and assertions, would amount to an abuse of the Tribunal process (Erjudin). In addition, the nature of the allegations made concerning the delegated guardian and the other children of the RP and the RP's grandchildren are made to cause personal and professional embarrassment to those people. There is no other reason to make such allegations in this proceeding as none of those people seek to be made the guardian and only Mr RD seeks to continue as the administrator of the RP's estate. The allegations about Mr RD have been made a number of times in past proceedings. Such a purpose is not a proper use of the Tribunal's process.
Because the allegations concern physical detriment to an elderly woman of such advanced years, now 96 years old, in residential care, the Tribunal considers that these new events, however, justify leave being granted to the applicant for the guardianship orders made on 14 February 2019 in GAA 3958 of 2018, to a limited extent, to be reviewed. Although the application was classified by the Tribunal as an application made pursuant to s 85(1)(c) and (d) of the GA Act, the Tribunal now considers upon hearing the applicant and receiving the applicant's information in support, that the application should be considered, at least in the alternative, as an application for review pursuant to s 86(1)(c) of the GA Act and an application for leave to review the guardianship orders made on 14 February 2019 pursuant to s 87(1) of the GA Act.
The Tribunal considers that the application dated 20 September 2019, insofar as it concerns a review of the guardianship orders made on 14 February 2019 pursuant to s 85(1)(c) and(d), based on the new facts, has no merit. There is no evidence of neglect, misconduct or default or or lack of physical or mental fitness by the delegated guardian or the Public Advocate in discharging the functions of the appointed guardian. To that extent the application should be dismissed as misconceived and to the extent that it relies on allegations that are repetitive of those previously made or on allegations that are made to cause personal or professional embarrassment (because of the lack of relevance, lack of evidence or because of their scandalous nature), the application should be dismissed summarily pursuant to s 47 of the GA Act as an abuse of the Tribunal process.
Insofar as the application dated 20 September 2019 is implicitly an application for leave to review pursuant to s 87(1) of the GA Act and an application for review pursuant to s 86(1)(d) of the GA Act, the Tribunal grants leave to the applicant to have the guardianship order reviewed but only insofar as the functions of determining where the RP is to live permanently and temporarily and with whom the RP is to live, are concerned. There is no evidence of any new facts that justify a change of circumstance or need to review any other function of the current guardian.
With respect to the administration order made on 14 February 2019, there is no new allegation concerning the RP's estate, the management of it or the suitability of the Mr RD to be the administrator. All allegations concerning the EPA and Mr RD's financial background and circumstances have been made, ventilated, heard and considered by the Tribunal on a number of occasions. The fact that the applicant disagrees with the views of the Tribunal (single members and Full Tribunals) is not a basis to reiterate the same allegations. Such actions are an abuse of process. The Tribunal concludes that the application insofar as it seeks a review of the administration orders made on 14 February 2019 pursuant to s 85(1)(c) and (d) of the GA Act should be dismissed. Further insofar as that application is an application for review pursuant to s 86(1)(d) of the GA Act and an application for leave to review made pursuant to s 87(1) of the GA Act, the Tribunal concludes it should be dismissed.
Accordingly the Tribunal makes the orders referred to below.
Orders
1.The applicant's application for a review of the guardianship and administration orders made on 14 February 2019 pursuant to s 85(1)(c) and/or (d) of the Guardianship and Administration Act 1990 (WA) is dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA).
2.The applicant's application for a review of the administration orders made on 14 February 2019 pursuant to s 86(1)(d) of the Guardianship and Administration Act 1990 (WA) and for leave to review the same pursuant to s 87 of the of the Guardianship and Administration Act 1990 (WA) is dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA).
3.The applicant's application for leave to review the guardianship orders made on 14 February 2019 pursuant to s 86(1)(d) of the Guardianship and Administration Act 1990 (WA) pursuant to s 87 of the Guardianship and Administration Act 1990 (WA) is granted in part and the grant of leave is limited to a review of the appointment of the Public Advocate as the guardian with the functions of determining:
(a)where the represented person resides, permanently and temporarily; and
(b)with whom the represented person shall reside, permanently and temporarily.
4.Subject to order 3 above, the applicant's application for a review of the guardianship orders made on 14 February 2019 pursuant to s 86(1)(d) of the Guardianship and Administration Act 1990 (WA) and for leave to review the same pursuant to s 87 of the of the Guardianship and Administration Act 1990 (WA) is dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA).
5.Further to order 3 above, the review of the guardianship order for which leave has been partially granted shall be listed for a final hearing on a date to be fixed and the hearing shall be allocated 1.5 hours for submissions and oral evidence.
6.Further to order 3 above, the applicant's oral submissions and evidence shall be limited to 20 minutes.
7.Further to order 3 above, the oral submissions and evidence of all other parties, except the Office of Public Advocate, shall be limited to 20 minutes.
8.Further to order 3 above, the oral submissions and evidence of the representative of the Office of the Public Advocate shall be limited to 20 minutes.
9.The Tribunal shall make such further directions on the documents as it thinks fit to facilitate the conclusion of this proceeding.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N OWEN-CONWAY, MEMBER
19 JUNE 2020
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