MS
[2015] WASAT 112
•13 OCTOBER 2015
MS [2015] WASAT 112
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 112 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:4051/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 13/10/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MS |
Catchwords: | Guardianship and administration Inspection of documents Cogent reasons needed to inspect documents |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 112, s 112(2), s 112(4), s 112(5) State Administrative Tribunal Act 2004 (WA), s 60(2) |
Case References: | KWD [2011] WASAT 4 LFG and Public Trustee [2015] WASAT 71 M [2008] WASAT 262 |
Summary | The Tribunal received an application for access to the transcripts of hearings at which an administration order was originally made in respect of the estate of a person who is now deceased.,Access to the transcripts was sought because the applicant intended to refer to the evidence of medical practitioners from the Tribunal hearings to assist in a probate dispute regarding the person's deceased estate.,The Tribunal did not grant access because it found that the applicant did not provide sufficiently cogent reasons and did not identify any public policy reason why access should be allowed.,The Tribunal found that access to documents or material on the file of a deceased person who was no longer subject to an administration order, should not be given simply for the assistance or convenience of the applicant pursuing a matter in another jurisdiction.,The application was therefore dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MS [2015] WASAT 112 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 13 OCTOBER 2015 FILE NO/S : GAA 4051 of 2015 EX PARTE
MS
Represented Person
Catchwords:
Guardianship and administration - Inspection of documents - Cogent reasons needed to inspect documents
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 112, s 112(2), s 112(4), s 112(5)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Application dismissed
Summary of Tribunal's decision:
The Tribunal received an application for access to the transcripts of hearings at which an administration order was originally made in respect of the estate of a person who is now deceased.
Access to the transcripts was sought because the applicant intended to refer to the evidence of medical practitioners from the Tribunal hearings to assist in a probate dispute regarding the person's deceased estate.
The Tribunal did not grant access because it found that the applicant did not provide sufficiently cogent reasons and did not identify any public policy reason why access should be allowed.
The Tribunal found that access to documents or material on the file of a deceased person who was no longer subject to an administration order, should not be given simply for the assistance or convenience of the applicant pursuing a matter in another jurisdiction.
The application was therefore dismissed.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
KWD [2011] WASAT 4
LFG and Public Trustee [2015] WASAT 71
M [2008] WASAT 262
Introduction
1 An application has been made under s 112(4) of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking access to documents on the file of MS who is deceased.
2 The applicant, ES, is a son of MS.
3 The Public Trustee was first appointed the administrator of the estate of MS on 7 November 2008. That application had been made by another son of MS, GS.
4 The Public Trustee remained as administrator until the death of MS on 31 December 2014.
5 In his application, ES states that a probate caveat has been placed on the estate of MS. Claims about MS's testamentary capacity have been raised in the probate proceedings and ES is seeking access to the transcripts of the Tribunal hearings held on 28, 29 and 30 October 2008 (2008 transcripts), as he intends to refer to the evidence of medical practitioners from those hearings.
6 The reasons for the decision of 7 November 2008 were published by the Tribunal as M[2008] WASAT 262. As a party to the proceedings, ES received a copy of those reasons.
7 The Tribunal has decided to deal with the application of ES on an ex parte basis and to conduct the proceeding entirely on the basis of the documents (s 112(5) of the GA Act and s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The relevant legislation
8 Section 112 of the GA Act provides:
(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.
Discussion
9 The Public Trustee ceased to be the administrator of the estate of MS upon her death on 31 December 2014 and at the same time MS ceased to be a represented person as defined in s 3 of the GA Act.
10 ES does not therefore make his application as a party to a proceeding concerning the administration order made in respect of MS under the GA Act. Accordingly, his application falls to be considered under s 112(4) of the GA Act without reference to the conditional entitlement of a party under s 112(2): LFG and Public Trustee [2015] WASAT 71 (LFG) at [20] [22].
11 Although the Tribunal has a wide discretion under s 112(4) of the GA Act to allow inspection or other access to documents or material lodged with or held by the Tribunal, that discretion is conditioned by the need of an applicant to give very cogent reasons as to why access should be allowed. The factors which articulate this position are described in LFG at [23] [36] citing the Full Tribunal in KWD [2011] WASAT 4 at [88] [92]. In particular, it is not sufficient in the exercise of the discretion under s 112(4) of the GA Act for access to be granted simply for the assistance or convenience of a party to a proceeding in another jurisdiction, which is what ES is asking the Tribunal to do: LFG at [31] and [34].
12 In addition, the application by ES does not refer to any public policy reasons as to why access should be allowed.
13 I adopt the reasoning in LFG.
14 I should therefore not exercise my discretion to allow ES to have access to the 2008 transcripts.
Order
1. The application is dismissed.
I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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