PJB [2008] WASAT 190

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 190
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2348/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR J MANSVELD (MEMBER)	Delivered:	22/08/08
No of pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	PJB
Catchwords:	Guardianship and administration Enduring power of attorney Whether an attorney has a right to access a copy of a will obtained by the Tribunal in respect of person for whom an application has been made and determined under the Guardianship and Administration Act 1990 (WA) The application for access to the will decided pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) Competing interests and tensions in the operation of s 112(4) of the Guardianship and Administration Act 1990 (WA) People who provide information to the Tribunal in respect of applications under the Guardianship and Administration Act 1990 (WA) should have confidence that the information will not routinely find its way into other arenas of conflict The Tribunal is not the appropriate place to seek access to a will
Legislation:	Guardianship and Administration Act 1990 (WA), s 4(2)(a), s 112 State Administrative Tribunal Act 2004 (WA), s 13
Case References:	"DDM" File No 02/0352; Ex parte The Full Board of the Guardianship & Administration Board (2003) 27 WAR 475 FHB and PJB [2006] WASAT 194 MB [2004] WAGAB 25
Summary	An application was made by CJS, son of PJB, to have access to a copy of her will lodged with the Tribunal in 2006 in respect of an application for guardianship for PJB.,The will had been provided by the former solicitors for PJB upon a request routinely made at the time by the Tribunal when an application was made under the Guardianship and Administration Act 1990 (WA). The practice of requesting a copy of the will of a person for whom an application has been made has now ceased.,The former solicitors for PJB had submitted at the time of the guardianship application that the will was being provided to the Tribunal as a privileged and confidential document and should not be made public. ,CJS made the application in his role as attorney for PJB under an enduring power of attorney executed by her in 2005.,The application was considered by the Tribunal under s 112(4) of the Guardianship and Administration Act 1990.,CJS submitted that he was entitled to have access to the will in his authority as attorney for PJB. He also expressed his concerns that PJB's estate was not being managed in her best interests and required protection. He wanted access to the will as it would assist him in ascertaining PJB's interests and intentions with respect to her estate.,The former solicitors for PJB submitted that the application to have access to the will was not for the purposes of any application then before the Tribunal and s 112(4) could not apply. It was also submitted that a will was not relevant to…

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: PJB [2008] WASAT 190
Case: [2008] WASAT 190
Decision Date: 22 AUGUST 2008

CaseChat Overview and Summary

An application was made to the Western Australian Civil and Administrative Tribunal by a guardian and attorney seeking access to a copy of a will obtained by the Tribunal in relation to the person for whom the application was made. The applicant argued that as the attorney of the deceased person, they had a right to access the will. The Tribunal was required to determine whether the applicant had a right to access the will obtained by the Tribunal and if so, whether the competing interests and tensions in the operation of the relevant section of the Guardianship and Administration Act 1990 (WA) should be taken into account.

The Tribunal considered the legal issues in relation to the applicant's right to access the will obtained by the Tribunal. The Tribunal was required to balance the applicant's right to access the will against the competing interests and tensions in the operation of section 112(4) of the Guardianship and Administration Act 1990 (WA). The Tribunal also considered the need to provide confidence to people who provide information to the Tribunal in respect of applications under the Act that the information will not routinely find its way into other arenas of conflict.

The Tribunal held that the applicant did not have a right to access the will obtained by the Tribunal. The Tribunal found that the application for access to the will should be decided pursuant to section 112(4) of the Guardianship and Administration Act 1990 (WA). The Tribunal held that the Tribunal was not the appropriate place to seek access to a will and that the competing interests and tensions in the operation of section 112(4) of the Act should be taken into account. The application for access to the will was dismissed.

The Tribunal dismissed the application for access to the will obtained by the Tribunal.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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