MWM
[2005] WASAT 97
•3 MAY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990
CITATION: MWM [2005] WASAT 97
MEMBER: MS D DEAN (MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 3 MAY 2005
FILE NO/S: GAA 573 of 2005
BETWEEN: MWM
Applicant
Catchwords:
Administration - Application for inspection of documents
Legislation:
Guardianship and Administration Act 1990 (WA), s 112
Result:
Application to inspect documents refused
Category: B
Representation:
Counsel:
Applicant: Self-represented
Solicitors:
Applicant:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MS D DEAN (MEMBER)
REASONS FOR DECISION
Background
On 17 February 2002 an application was made to the then Guardianship and Administration Board (the Board) to intervene in relation to an Enduring Power of Attorney (EPA) executed by MWM in favour of her granddaughter RW. The application was made by JAR, manager of the aged care facility where MWM resided.
The application stated that the donor, MWM, had repeatedly, both verbally and in writing, requested a substitute attorney for her EPA.
On 3 July 2003 an application for inspection of medical documents to be considered at the hearing planned for 9 July 2003, was made by the solicitor for RW, the current attorney. The application was granted.
The hearing of the matter was commenced on 9 July 2003 but was adjourned for further medical evidence in relation to MWM's capacity to execute an EPA.
On 19 December 2003 an application to inspect "all" documents tabled at the July 9 hearing, made by CH, another granddaughter of MWM, was granted.
At a hearing on 3 October 2003 the Board dismissed the application to intervene on the basis that MWM was capable of executing an EPA and there was therefore no role for the Board in relation to her affairs.
On 27 May 2004 an application for the Board to intervene in relation to the accounts held and managed by the previous EPA was made by CAH another granddaughter of MWM and one of the new joint donees.
On 10 August 2004 an application pursuant to s 42 of the Guardianship and Administration Act 1990 (WA) to withdraw the application for the Board to intervene was made by CAH and approved by the Board.
On 16 August 2004 CAH applied for inspection of documents relating to the hearings on 9 July and 3 October 2003. The documents were said to be required in relation to legal action against the previous donee for alleged misappropriation of funds. The Board made an order allowing inspection of all documents in relation to both hearings (except the report prepared by the Office of the Public Advocate).
On 12 April 2005 FI applied for inspection of a specific document that was tabled at the hearing on 9 July 2003. FI stated that the document contained "unfounded and untrue" information about herself and other family members. FI further informed the Tribunal that she intended "following this up" and stated that this action may result in the matter being "taken to court".
Legislation
Section 112 of the Guardianship and Administration Act 1990 (WA) allows for the inspection of documents.
Section 112(1) provides that for the purposes of any application a represented person or proposed represented person is entitled to inspect or have access to documents and materials. This right is exercisable only in the course of pending proceedings and is no longer relevant once proceedings have been determined. As the proceedings concerning MWM are complete, s 112(1) is not relevant to FI's application.
Section 112(2) entitles a person who is not the represented person or the proposed represented person, or their representative, but who is otherwise a party to proceedings, to inspect or otherwise have access to documents or materials for the purpose of those proceedings. As in s 112(1), the right given by s 112(2) is for pending proceedings and as proceedings concerning MWM are no longer pending, this section is not applicable to FI's application.
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 Tribunal, to inspect or otherwise have access to documents or material lodged with, or held by the Tribunal for the purposes of any application.
Section 112(4) provides the Tribunal with broad discretion on the application to inspect and have access to documents and may apply to documents and materials other than those in proceedings before the Tribunal. This section is therefore relevant to FI's application. The Tribunal would only exercise this discretion and allow access to such documents if satisfied that such inspection or access is appropriate.
In assessing the appropriateness or otherwise of an application to inspect, the Tribunal requires the applicant to provide cogent reasons for the application. In addition, the purpose of the application should be relevant to the proceedings, and in the interests of the proposed represented person for the Tribunal to consider exercising its discretionary powers to permit the inspection or access to occur.
Findings and Reasons
The Tribunal has carefully examined the application from FI and is of the opinion that the application is not related to the proceedings that were before the Board in July 2003. Further, it is the opinion of the Tribunal that the application is in the interests of FI and not in any way related to the interests of MWM.
The Tribunal is not satisfied that there is a need to know that warrants it executing its discretion in favour of the applicant.
Decision and Order
The Tribunal has carefully considered the application by FI to inspect documents and materials in relation to the administration hearing on 9 July 2003 and refuses leave to inspect such documents and materials.
The order of the Tribunal is:
1.The application under s 112 to inspect documents is dismissed.
I certify that this and the preceding 4 pages comprise the reasons for decision of the State Administrative Tribunal.
______________________
Ms D Dean
Member
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