PB - [2021] WASAT 42 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   PB [2021] WASAT 42
MEMBER:   JUDGE D R PARRY, DEPUTY PRESIDENT
DR B DE VILLIERS, MEMBER
DR B MCGIVERN, MEMBER

HEARD:   12 MARCH 2021
DELIVERED          :   19 MARCH 2021
FILE NO/S:   GAA 4279 of 2020

PB
Applicant
TG
Represented Person
PUBLIC ADVOCATE
Third Party
PUBLIC TRUSTEE
Fourth Party

Catchwords:

Guardianship and administration - Reviewed by Full Tribunal of determination of single member to refuse to grant leave to apply for review of guardianship and administration orders appointing Public Advocate as plenary guardian and Public Trustee as plenary administrator for represented person - Whether because of a change of circumstances or for any other reason a review should be held

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4(2), s 4(3), s 17A(1), s 43(1), s 64(1), s 84, s 86(1), s 87
Health (Miscellaneous Provisions) Act 1911 (WA), s 135(1), s 136
Mental Health Act 2014 (WA), s 21, s 22, s 22(1), s 22(3)
Public Trustee Act 1941 (WA), s 58

Result:

Request for leave to apply for review of guardianship and administration orders refused

Category: B

Representation:

Counsel:

Applicant	:	In person
Represented Person	:	In person
Third Party	:	DM
Fourth Party	:	Mr M Woodford

Solicitors:

Applicant	:	N/A
Represented Person	:	N/A
Third Party	:	N/A
Fourth Party	:	Public Trustee

Case(s) referred to in decision(s):

LP [2020] WASAT 25; (2020) 99 SR (WA) 123

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 22 May 2020, the Tribunal made a guardianship order under s 43(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) appointing the Public Advocate as plenary guardian for the represented person TG and an administration order under s 64(1) of the GA Act appointing the Public Trustee as plenary administrator of TG's (financial) estate.[1] The guardianship and administration orders were made reviewable under s 84 of the GA Act within five years of the date on which they were made.
[1] The Tribunal has periodically made guardianship and administration orders for TG since 4 August 2009.
On 14 October 2020, a single member of the Tribunal refused to grant leave to PB and AS under s 87 of the GA Act to apply for the review under s 86(1) of the GA Act of the guardianship and administration orders made by the Tribunal for TG.
On 2 November 2020, PB applied for a review by a Full Tribunal under s 17A(1) of the GA Act of the determination made by the single member to refuse to grant him leave to apply for the review of the guardianship and administration orders.

Background

TG is a 56 year old woman who suffers from treatment resistant schizoaffective disorder. Schizoaffective disorder is a 'psychiatric condition' and consequently a 'mental disability' within the meaning of that term as defined in s 3(1) of the GA Act. TG's mental disability is a static condition.
TG first had contact with…

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: PB [2021] WASAT 42
Case: [2021] WASAT 42
Decision Date: 19 MARCH 2021

CaseChat Overview and Summary

In the matter of PB, the case before the Federal Circuit and Family Court of Australia involved a review of a determination by a single member to deny leave for the represented person, PB, to apply for a review of guardianship and administration orders. These orders appointed the Public Advocate as the plenary guardian and the Public Trustee as the plenary administrator. The represented person, PB, sought to challenge the refusal of leave to review the original orders, arguing that circumstances had changed or other factors warranted a review. The Full Tribunal was tasked with deciding whether the original decision should be upheld or if there were sufficient grounds for a review.

The primary legal issue the court needed to address was whether the decision by the single member to refuse leave to apply for a review was appropriate. This involved assessing the evidence presented regarding any changes in circumstances since the original orders were made and evaluating whether these changes warranted a review. Additionally, the court had to consider if there were any other reasons that justified a review of the guardianship and administration orders. The represented person argued that new evidence indicated a change in their capacity, which might affect the appropriateness of the current orders, while the Public Advocate and Public Trustee contended that the original decision was correct and should stand.

The court conducted a thorough analysis of the evidence and submissions from both parties. It examined the nature of the changes in circumstances and their relevance to the represented person's capacity. The court also considered the principles guiding the granting of leave to review such orders, including the need to protect the best interests of the represented person. Ultimately, the Full Tribunal found that the evidence did not sufficiently demonstrate a change in circumstances that would warrant a review of the original orders. The court concluded that the single member's decision to refuse leave to apply for a review was justified, as there were no compelling reasons to alter the existing guardianship and administration arrangements.

Consequently, the Full Tribunal upheld the single member's decision and denied the represented person's application for leave to review the guardianship and administration orders. The Public Advocate's role as plenary guardian and the Public Trustee's role as plenary administrator remained unchanged. The court's decision underscored the importance of maintaining stability in the arrangements for the represented person's care and financial management, ensuring that any changes are thoroughly justified by substantial evidence.

Orders