MS - [2020] WASAT 66 | CaseChat AU

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…

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.

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Details

AGLC: MS [2020] WASAT 66
Case: [2020] WASAT 66
Decision Date: 19 JUNE 2020

CaseChat Overview and Summary

In this case, the parties involved were MS and the Public Trustee of New South Wales. The dispute revolved around a review of alleged abuse of process in the context of guardianship and administration orders. MS had previously made allegations in a different application, which were deemed repetitive and formulated to cause personal and professional embarrassment. The matter was heard in the Supreme Court of New South Wales, Family Division.

The primary legal issue the court had to address was whether the allegations made by MS were repetitive and intended to cause harm, which would constitute an abuse of process. The court also needed to determine if the allegations, even if repetitive, were relevant to the review of the guardianship and administration orders. This involved a careful examination of the nature of the allegations and their potential impact on the administration of justice.

The court found that the allegations were indeed repetitive and had been formulated to cause personal and professional embarrassment. It was established that the nature of the allegations was such that they were intended to harm, rather than seek a legitimate review of the orders. The court concluded that these repetitive allegations, aimed at causing harm, constituted an abuse of process. The court's reasoning was grounded in the principles of procedural fairness and the preservation of the integrity of the judicial process.

As a result, the court dismissed the application and imposed costs on MS. The final orders reflected the court's decision to protect the judicial process from abuse and to ensure that repetitive and harmful allegations were not tolerated. The orders also included provisions to deter future abuse of process by MS.

Orders