PV and AEV (Deceased)
[2006] WASAT 252
•25 AUGUST 2006
PV and AEV (Deceased) [2006] WASAT 252
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 252 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:808/2006 | ON THE PAPERS | |
| Coram: | MR J MANSVELD (MEMBER) | 25/08/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed | ||
| B | |||
| PDF Version |
| Parties: | PV AEV (Deceased) |
Catchwords: | Guardianship and administration Inspection of documents Legislative intent of Guardianship and Administration Act 1990 (WA) Public policy underpinning inspection regime Cogent reasons needed to inspect documents |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 97, s 97(1)(b)(iii), s 112, s 112(1), s 112(2), s 112(4), Part 8 State Administrative Tribunal Act 2004 (WA), s 78 |
Case References: | MB [2004] WAGAB 25 Re MM (2001) 28 SR(WA) 320 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PV and AEV (Deceased) [2006] WASAT 252 MEMBER : MR J MANSVELD (MEMBER) HEARD : ON THE PAPERS DELIVERED : 25 AUGUST 2006 FILE NO/S : GAA 808 of 2006 BETWEEN : PV
- Applicant
AND
AEV (Deceased)
Represented Person
Catchwords:
Guardianship and administration - Inspection of documents - Legislative intent of Guardianship and Administration Act 1990 (WA) - Public policy underpinning inspection regime - Cogent reasons needed to inspect documents
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 97, s 97(1)(b)(iii), s 112, s 112(1), s 112(2), s 112(4), Part 8
State Administrative Tribunal Act 2004 (WA), s 78
(Page 2)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant : Ms M Breisch
Represented Person : N/A
Solicitors:
Applicant : Gadens Lawyers
Represented Person : N/A
Case(s) referred to in decision(s):
MB [2004] WAGAB 25
Re MM (2001) 28 SR(WA) 320
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Case(s) also cited:
Nil
(Page 3)
Summary
1 A son of a woman (now deceased) applied to the Tribunal to inspect her file and have access to a report provided by the Public Advocate to the former Guardianship and Administration Board in respect of a hearing for administration held in 2004.
2 The jurisdiction of the Board was absorbed by the State Administrative Tribunal from 24 January 2005, and the Tribunal exercises the functions under the Guardianship and Administration Act 1990 (WA) formerly exercised by the Board.
3 The son made the application to obtain evidence of the deceased woman's testamentary capacity for inclusion in affidavit evidence in Supreme Court proceedings.
4 The application for inspection was dismissed as it was not considered in this case in the public interest for the documents and materials held by the Tribunal to be used for what the son was proposing. The Guardianship and Administration Act1990 was designed to protect people with disabilities which prevents them from making reasonable judgments about their personal life and financial estate. Information is provided to the Tribunal by professionals and other people, including family and friends of the person with the disability, and it is important that the information is given in the knowledge that it will only be used in other forums in limited circumstances.
Background
5 These reasons relate to an application made by PV to inspect documents on the file of AEV (deceased). PV is a son of AEV. The application was made on 2 May 2006 by PV's legal representatives, Gadens Lawyers.
6 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (the Act).
7 On 2 December 2004, the former Guardianship and Administration Board (the Board) appointed KMV, another son of AEV, as her plenary administrator. The order was set to be reviewed by 2 December 2009.
8 On 21 January 2005, MLC, daughter of AEV applied for a review of the administration order made on 2 December 2004.
(Page 4)
9 The jurisdiction of the Board was absorbed by the State Administrative Tribunal from 24 January 2005, and the Tribunal now exercises the functions under the Act formerly exercised by the Board.
10 On 24 March 2005, the Tribunal refused leave to the applicant for a review of the administration order to be heard.
11 AEV died on 27 September 2005.
Decision
12 On 5 May 2006, I dismissed the application to inspect documents and material held by the Tribunal in respect of AEV.
13 The applicant has requested written reasons pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).
14 I will provide the reasons for my decision by firstly, detailing the application to inspect, then stating the relevant legislation and lastly, analysing the legislation and case law against the purpose for which the inspection is sought.
The application to inspect documents or material held by the Tribunal
15 The applicant is seeking to inspect and have access to a document from the file of AEV pursuant to s 112(4) of the Act. In particular the applicant states that the reason for making the application is:
"To obtain evidence of [AEV's] testamentary capacity for the purpose of inclusion in affidavit evidence to be filed in Supreme Court proceedings…"
16 As to the order sought from the Tribunal the applicant states:
"An order that (a) the applicant's lawyers be permitted to inspect the file of [AEV]; and (b) that the applicant's lawyers be provided with a copy of the report produced by the Office of the Public Advocate (for the purpose of the State Administrative Tribunal (sic) hearing of 2 December 2004)."
The relevant legislation
17 A person's entitlement to inspect or have access to documents or other materials held by the Tribunal is dealt with by s 112 of the Act.
(Page 5)
"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.
(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: $2000 or imprisonment for nine 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."
18 Sections 112(1) and (2) are not relevant to the application by PV. As determined by the ReMB[2004] WAGAB 25(9 June 2004):
"As in the case of the right created by s 112(1), the right given by s 112(2) is for the benefit of parties to pending proceedings to facilitate a proper hearing of an application before the Board."
19 In the present application, the proceedings concerning AEV are complete and therefore PV is unable to rely upon s 112(1) or (2) to inspect or have access to documents or materials held by the Tribunal.
20 Section 112(4) is the relevant provision. The Full Board in MB stated the policy underpinning this provision at paragraph [35], paragraph [59], and paragraph [60]:
- "…As observed by the Board on an earlier occasion, the provisions of s 112 reinforce two important policies: firstly, the protection of the privacy of the person involved in the proceedings before the Board and in particular a proposed represented person or a represented person; and secondly, the public interest in the integrity of the Board processes which relies on the ability to obtain sensitive information from a variety of sources: see Re MM (2001) 28SR(WA)320 at 332. …
- 21 We agree with the observation of the Board in Re MM (supra), at 332, that s 112(4) provides the Board with a broad discretion on the application of any person or on its own initiative to allow inspection of or access to documents lodged with or held by the Board for the purposes of any application.
22 We also agree with the further expression of opinion of the Board in Re MM, at 332, that s 112(4) is not limited in its terms and, in an
(Page 7)
- appropriate case, may include inspection or access to relevant documents or materials for purposes other than proceedings before the Board, although the circumstances in which the Board would ordinarily consider exercising this power may be considered limited. As the Board said in Re MM, at 332:
"…given the sensitive and confidential nature of much of the material held by this Board, we are of the view that where an applicant requests the Board to exercise its discretion under s 112(4) for purposes not related to proceedings before the Board, he or she must provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed (see generally DeHass v Murciaand Associates, Supreme Court of Western Australia Library No 980633, per Templeman J.) It is not sufficient to rely on a general desire to be informed."
"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 Board, to inspect or otherwise have access to a document or material lodged with or held by the Board for the purposes of any application, or to any accounts admitted under s 80."
Should the application to inspect, succeed?
24 There are a number of issues that go to the heart of the inspection regime envisaged by the Act. They are, the legislative intention of the Act, the information that is provided to the Tribunal to assist in the achievement of the Act's intention, the right to inspect documents and materials within the framework of the Act's intention and finally, the use of the discretion given in s 112(4) of the Act.
25 E M Heenan J said in the decision of the Full Court of the Supreme Court in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at paragraphs 43 and 44:
"….the Guardianship and Administration Act is intended to 'provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to
(Page 8)
- make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes' (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
…The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes."
26 To fulfil the intention and objectives of the Act, the Tribunal relies upon the provision of information to it that is forthright and that will often contain sensitive material and contentious opinion. The information is provided by medical practitioners, allied health and other professionals and family and friends of the person for whom an application for the appointment of a guardian or administrator has been made. The information is often provided in circumstances where the person for whom an application is made is unable or only partially able to contribute to the hearing process and give answer to the information made available to the Tribunal on their behalf.
27 The information is provided to enable the Tribunal to make a determination on an application that accords with the substantial merits of the question to be resolved, for example whether the person is in need of an administrator or guardian. The people who provide the information can expect to be questioned on it and the credibility of their information tested as to its value to the Tribunal. As already mentioned, when an application is being heard by the Tribunal, the inspection regime is covered by s 112(1) and (2) of the Act. This allows for a limited number of people to inspect documents and materials held by the Tribunal in the context of submitting to the Tribunal information and opinion that will assist in the decision to be made on a particular application. This is
(Page 9)
- largely uncontroversial but even so is restricted in its scope. As stated in MB at paragraph [34]:
"…This is to be expected in the administration of an Act that provides for the guardianship of adults who need assistance in their personal affairs and the administration of the estate of persons who need assistance in their financial affairs."
29 An example of this is the report provided by the Public Advocate when a matter is referred to her by the Tribunal pursuant to s 97(1)(b)(iii) of the Act. The applicant is seeking access to such a report.
30 The Office of the Public Advocate is created by the operation of Part 8 of the Act. The functions of the Public Advocate are described, and relevantly under s 97 of the Act the Tribunal is empowered to have her investigate and report at hearings commenced under the Act, on any question or matter referred to her. When the Public Advocate provides the Tribunal with a written report arising out of her investigation, she makes it clear that the intended recipient is the Tribunal. The independent investigation is carried out and the report produced specifically for a proceeding under the Act and one can reasonably accept that is the understanding of the people from whom the Public Advocate obtains information. Whilst that is not of itself determinative of a decision of the Tribunal under s 112 of the Act, it has to be said that the investigations of the Public Advocate are an important source of information to the Tribunal and the integrity of that information is crucial to a number of the decisions it makes for people with a decision-making disability.
31 Situations can be envisaged, however, where after a proceeding is completed, an appointed guardian or administrator might seek to inspect material held by the Tribunal for the purpose of fulfilling their functions. For example, an administrator, after appointment, may make an application to inspect certain documents held by the Tribunal to assist in
(Page 10)
- determining the extent of the represented person's estate. Or an application might be made by a guardian or administrator of another represented person who has a demonstrated interest in the represented person's estate. These would seem to be reasonable requests under s 112(4) of the Act.
32 To speak of limiting the circumstances by which inspection might be allowed is not to fetter the broad discretion available to the Tribunal under s 112(4). This was restated by the Full Board in MB at paragraph [66] and paragraph [67]:
"…we think there are good reasons, relating to good public administration, why the Board's power to grant access to relevant documents and materials under s 112(4) should not be construed narrowly. It is possible to envisage a number of circumstances in which, for example, persons charged by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with and are held by the Board for the purpose of an application. The Board should be able to determine on an application-by-application basis whether the request for access by a person should be granted. But as the Board said in Re MM (supra), the reasons advanced in support of a request for access under s 112(4) will need to be cogent and be justified on a 'need to know' basis.
.It is for the Board in every case to decide if there are very good reasons to permit inspection or access having regard to the facts and circumstances raised in the application before it. In some cases, the exercise of the discretion may be constrained by the principle expressed in s 4(2)(a) of the Act, namely, that in the performance of its functions 'the primary concern of the Board shall be the best interests of any represented person, or of a person in respect of whom an application is made' ".
33 I accept that the example given in MB of an official investigation in the public interest, could be a situation where an inspection under s 112(4) is allowed. Public policy dictates that legislation, in general, is subject to such scrutiny.
34 I return, however, to the intention and objectives of the Act as stated in these reasons. It is my view that the discretion allowed me by s 112(4) of the Act should otherwise only be exercised for applications to inspect
(Page 11)
- that demonstrate a reasonable relationship between the purpose to which the requested information is to be put and those intentions and objectives.
35 I am not satisfied that the application by PV is in the nature of circumstances that should lead me to exercise my discretion under s 112(4). The action PV is taking in the Supreme Court is "[t]o obtain evidence of [AEV's] testamentary capacity for the purpose of inclusion in affidavit evidence to be filed in Supreme Court proceedings…"
36 This request, does not in my view, exhibit that "reasonable relationship" to which I have referred, with the objectives of the Act.
37 I therefore dismiss PV's application to inspect the file of AEV or have access to the report lodged by the Public Advocate in respect of the hearing of the Guardianship and Administration Board on 2 December 2004.
38 The Supreme Court may consider, in the appropriate case, to ask that AEV's file held by the Tribunal be made available to the Court, to provide material or documents on that file which may assist the Court.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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