Re CH; Ex Parte Ed
[2008] WASAT 94
•9 MAY 2008
RE CH; EX PARTE ED [2008] WASAT 94
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 94 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:954/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) | 9/05/08 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application is refused | ||
| B | |||
| PDF Version |
| Parties: | ED |
Catchwords: | Application to inspect document held by Tribunal for purposes of proceedings under the Guardianship and Administration Act 1990 Application under s 112(4) Proceedings finalised Applicant sought access to letter provided in support of appointment of guardian and administrator Letter made passing reference to unidentified person whom applicant believed was herself Applicant wanted opportunity to challenge statement in the letter Considerations to be taken into account Insufficient reason to allow inspection Application refused |
Legislation: | Guardianship and Administration Act 1990 (WA), s 112, s 113, cl 12 Pt B Sch 1 |
Case References: | Re MB (unreported decision of the Full Board of the Guardianship and Administration Board, 9 June 2004) Re MM (2001) 28 SR (WA) 320 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE CH; EX PARTE ED [2008] WASAT 94 MEMBER : MS J TOOHEY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 9 MAY 2008 FILE NO/S : GAA 954 of 2008 MATTER : APPLICATION UNDER S 112(4) OF THE GUARDIANSHIP AND ADMINISTRATION ACT EX PARTE
ED
Applicant
Catchwords:
Application to inspect document held by Tribunal for purposes of proceedings under the Guardianship and Administration Act 1990 Application under s 112(4) Proceedings finalised Applicant sought access to letter provided in support of appointment of guardian and administrator Letter made passing reference to unidentified person whom applicant believed was herself Applicant wanted opportunity to challenge statement in the letter Considerations to be taken into account Insufficient reason to allow inspection Application refused
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 112, s 113, cl 12 Pt B Sch 1
Result:
Application is refused
Category: B
Representation:
Counsel:
Applicant : N/A
Solicitors:
Applicant : N/A
Case(s) referred to in decision(s):
Re MB (unreported decision of the Full Board of the Guardianship and Administration Board, 9 June 2004)
Re MM (2001) 28 SR (WA) 320
(Page 3)
Summary of Tribunal's decision
1 The applicant sought access under s 112(4) of the Guardianship and Administration Act 1990 (WA) to a document which the Tribunal had received in the course of hearing applications to appoint a guardian and an administrator for CH. The proceedings had been finalised.
2 The document in question was a letter which had been sent to the Tribunal unsolicited by a person who supported the appointment of CH's cousin as her guardian and administrator. The writer, who identified himself, made a passing reference to a "carer" in terms which suggested that the conduct of the "carer" was wanting in some respect. It did not identify the "carer" or give details of the conduct. The applicant said that she was the "carer" referred to in the letter and she wanted to respond to the accusations against her.
3 The Tribunal refused the application. The document had been given to it for the purpose of the proceedings concerning CH. The applicant clearly knew the identity of the writer and the contents of the letter. She did not need the letter to respond to any allegations. Her reasons for seeking access to the document had nothing to do with CH.
4 Although the Tribunal has a wide discretion to allow access under s 112(4), the applicant's desire to inspect the letter did not outweigh other considerations. It would undermine confidence in the Tribunal's processes if access could be obtained to documents for purposes unrelated to the proceedings for which they were held without a cogent reason and a demonstrated need to know.
Background
5 The applicant seeks access under s 112(4) of the Guardianship and Administration Act 1990 (WA) (the Act) to a letter which was submitted to the Tribunal in the course of an application to appoint a guardian and administrator for CH. The proceedings were finalised some months ago and an administrator appointed for CH.
6 The letter was sent to the Tribunal unsolicited by a person who knew CH and who supported the appointment of her cousin as her guardian and administrator. The writer, who identified himself, made a passing reference to a "carer" in terms which suggested that the conduct of the "carer" was wanting in some respect. He did not identify the "carer" or give any details of the conduct.
(Page 4)
7 In her application for access to the letter, the applicant identified the writer by name. She said she was the "carer" referred to and she wanted to inspect the letter in order to respond to the accusations against her.
Reasons
8 Proceedings under the Act usually involve very personal information about an individual including about their family, their medical treatment and their finances. For this reason, the Act imposes strict confidentiality requirements on persons performing functions under it, and strict limitations on publication of proceedings: s 113; cl 12 of Pt B, Sch 1.
9 As was noted in Re MB (unreported decision of the Full Board of the Guardianship and Administration Board, 9 June 2004), the circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Tribunal is limited.
10 Section 112(1) and s 112(2) set out the circumstances in which parties to pending proceedings may be entitled to access to documents held by the Tribunal for the purpose of those proceedings.
11 Section 112(4) provides that the Tribunal may, on the application of any person, allow any person to inspect or otherwise have access to documents held for the purposes of any application. In an appropriate case, this may include inspection or access to documents or materials for purposes other than proceedings before the Tribunal, although such cases would likely be limited: see MB at [60].
12 In MB, the Full Board, citing its earlier decision in Re MM (2001) 28 SR (WA) 320, at 332, said:
"… 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 … It is not sufficient to rely on a general desire to be informed."
13 Having said that, the Full Board considered there are good reasons for not construing s 112(4) narrowly. Situations can be envisaged where the public interest would be served by allowing access to documents or materials even by a person who was not a party to the proceedings. The Tribunal's discretion is wide and each application must
(Page 5)
- be considered on its merits. Nevertheless, there must still be cogent reasons for the request and a "need to know": MB at [66].
14 In this case, the letter in question was sent to the Tribunal for the purpose of the proceedings concerning CH. It did not concern the applicant other than by making a passing reference to "the carer". The applicant assumes that she is "the carer" referred to and she may be right. However, even allowing that she is, she clearly knows the identity of the writer and the contents of the letter, at least in general terms. She does not need the letter to respond to any allegations. No-one else can have access to it without the express authority of the Tribunal. Moreover, her purpose in seeking access to the letter has nothing to do with CH or the proceedings.
15 Although the Tribunal has a wide discretion to allow access under s 112(4), it is not satisfied that the applicant has provided cogent reasons for allowing access to the document and she has not demonstrated a need to know its contents. Her desire to inspect the letter does not outweigh other considerations. It would undermine confidence in the Tribunal's processes if any person could have access to documents for purposes unrelated to the proceedings for which they are held without a cogent reason and a demonstrated need to know. The application is refused.
Order
1. The application is refused.
I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J TOOHEY, SENIOR MEMBER
0
0
1