Public Trustee and Anor
[2005] WASAT 199
•9 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PUBLIC TRUSTEE & ANOR [2005] WASAT 199
MEMBER: MS D DEAN (MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 9 AUGUST 2005
FILE NO/S: GAA 1210 of 2005
BETWEEN: PUBLIC TRUSTEE
Applicant
HH
Represented Person
Catchwords:
Administration - Application for inspection of documents
Legislation:
Guardianship and Administration Act 1990 (WA), s 35, s 112, s 112(1), s 112(2), s 112(3), s 112(4)
Result:
Application to inspect documents granted
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Represented Person : Selfrepresented
Solicitors:
Applicant: Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
An application was made by the Public Trustee to inspect documents held by the State Administrative Tribunal in relation to the hearing of an application for an administration order in respect of a person now deceased. The application to inspect documents was made for the purpose of proving the validity of a Will made by the deceased represented person.
The Tribunal considered the reasons provided by the Public Trustee for the application to inspect, to be valid and therefore granted the inspection under s 112(4) of the Guardianship and Administration Act 1990 (WA) (the Act).
Background
HH, the represented person, was the subject of an administration order appointing the Public Trustee administrator of her estate. The Public Trustee was appointed plenary administrator on 13 January 2000 on the basis that HH had been diagnosed with dementia and assessed as no longer able to manage her financial affairs.
On 30 November 1995, HH had executed an Enduring Power of Attorney (EPA) in favour of the Public Trustee. The Public Trustee had been operating the EPA prior to their application to the then Guardianship and Administration Board (the Board) for an administration order in respect of HH.
The Public Trustee made the application for administration to the Board in the context of an action in the Supreme Court of Western Australia in which it was alleged that HH had entered into a contract of sale for her home on 30 March 1993, when she allegedly did not have the capacity to enter into such an agreement. If the Supreme Court action was successful, it could have been argued that the EPA was invalid and the Public Trustee would have no standing.
HH died on 20 September 2001 and the Public Trustee was appointed, under s 35 of the Act, "receiver and administrator" of her estate.
It is alleged that HH made a number of Wills over the years and for all of these "testamentary capacity is at issue". On 14 July 2005, the Public Trustee made an application to the Tribunal for inspection of "all medical evidence as to testamentary capacity" in order to make an application to prove the validity of a Will.
Legislation
Section 112 of the Guardianship and Administration Act 1990 (WA) allows for the inspection of documents.
"112. Inspection of records
(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.
The right to inspect under s 112(1) is exercisable only in the course of pending proceedings and is no longer relevant once proceedings have been determined. As the proceedings concerning HH are complete, Section 112(1) is not relevant to the Public Trustee's application.
"(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.
As in s 112(1), the right given by s 112(2) is for pending proceedings and as proceedings concerning HH are no longer pending, this section is not applicable to the Public Trustee's application.
"(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."
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.
"(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."
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 the Public Trustee'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 it to exercise its discretionary powers and to permit the inspection or access to occur. The Tribunal must also be satisfied that it is in the best interests of the represented person and there is a particular need as to why the inspection should be allowed.
Findings and Reasons
The reasons given by the Public Trustee for applying for inspection and access to the Tribunal file were to ascertain the testamentary capacity of HH when executing the numerous Wills she is said to have made and to aid in proving the validity of those Wills.
The Tribunal considers the reasons provided by the Public Trustee in its application to inspect, to be cogent and in the best interests of the represented person that the validity of the Wills be clarified and therefore grants leave to inspect and make copies of relevant documents or material on the file.
Decision and Order
The Tribunal has considered the application by the Public Trustee to inspect documents and materials in relation to the administration application hearing on 13 January 2000 and grants leave to inspect requested documents and materials.
The order of the Tribunal is:
The application under s 112 of the Guardianship and Administration Act 1990 (WA) to inspect documents is granted.
I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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