Re Awc; Ex Parte Awc - [2009] WASAT 216

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE AWC; EX PARTE AWC [2009] WASAT 216

MEMBER: MR J MANSVELD (MEMBER)
MS F CHILD (MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)

HEARD: 12 MAY 2009 AND 2 SEPTEMBER 2009

DELIVERED : 2 NOVEMBER 2009

FILE NO/S: GAA 834 of 2009

EX PARTE
AWC
Represented Person

Catchwords:

Guardianship and administration Administration Review of administration order Mental disability Acquired brain injury Psychiatric assessment Neuropsychological assessment Ability to make reasonable judgments about all or any part of his estate Court action for personal injuries Conduct of court action Damages award Need for an administrator Administrator appointed

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(b)(iv), s 64(1), s 64(1)(a), s 90, Sch 1
Supreme Court Rules 1971 (WA), r 1, O 70

Result:

Category: B

Representation:

Counsel:

Represented Person : Mr AJ Klein

Solicitors:

Represented Person : Stephen Browne Personal Injury Lawyers

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

FS [2007] WASAT 202

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The mother of a 45yearold man was appointed his administrator so that she could act as his next friend in an action in the District Court for a personal injury claim arising out of a motor vehicle accident. Amongst other things, the man had residual physical injuries and suffered severe expressive dysphasia; an inability to put thoughts into appropriate words.
Subsequent to the trial in the District Court but prior to the judgment of the Court, the mother, on the advice of the man's solicitor, sought a review of the administration order. An assessment had been made by a psychiatrist that the man was now capable of conducting the legal action in his own right and, moreover, could manage any award of damages that might be made.
The man's solicitor advised that the Court would not hand down its judgment until the review of the administration order had been determined by the Tribunal.
The evidence before the Tribunal for the review included an assessment by a clinical psychologist that differed from the opinion of the psychiatrist. That assessment found that some of the man's higher brain functioning was compromised, in particular, that he had a deficit in both his recall and his working memory which impaired his ability to keep in his mind and take into account all relevant information in consideration of an idea or proposition. The psychologist's conclusion was that the man remained very impaired in relation to the conduct of his personal and financial affairs.
The Tribunal preferred the assessment of the clinical psychologist which was based on neuropsychological testing and which was in part supported by the reported observations and experiences of the man's family.
The Tribunal decided to continue with the administration order that had been previously made because the complexity of the legal action in which the man was engaged…

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.

Continue reading Re Awc; Ex Parte Awc

Details

AGLC: Re Awc; Ex Parte Awc [2009] WASAT 216
Case: [2009] WASAT 216
Decision Date: 2 NOVEMBER 2009

CaseChat Overview and Summary

The case of Re Awc; Ex Parte Awc involved a man who had suffered an acquired brain injury resulting in a mental disability. The matter came before the court on an application for a review of an administration order, seeking to determine the man's capacity to manage his own affairs and estate. The primary concern was whether he retained the ability to make reasonable judgments about his estate, given his cognitive impairments. The court was tasked with evaluating the psychiatric and neuropsychological assessments conducted to ascertain his decision-making capacity.

The central legal issues the court had to decide were whether the man could understand and appreciate the nature and consequences of dealing with his estate and whether he could make decisions about his property and financial affairs. The court had to assess the evidence from the assessments, which included detailed reports from medical experts, to determine his current cognitive and functional abilities. The court also considered the implications of his disability on his capacity to conduct his own court action for personal injuries and to manage his damages award.

In delivering the judgment, the court found that the man's cognitive impairments significantly affected his ability to make reasonable judgments about his estate. The evidence from the psychiatric and neuropsychological assessments indicated that he had difficulties in understanding and managing his financial affairs. The court concluded that an administrator was necessary to manage his estate and to ensure that his interests were protected. The court appointed an administrator to oversee his financial matters, providing a safeguard for his interests while he was unable to manage them himself.

Orders