Re WA and IA; - [2011] WASAT 60

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE WA AND IA; EX PARTE AA [2011] WASAT 60

MEMBER: MS F CHILD (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 13 APRIL 2011

FILE NO/S: GAA 496 of 2011
GAA 497 of 2011
EX PARTE
AA
Applicant
AND
IA
WA
Proposed Represented Persons

Catchwords:

Guardianship and administration - Application for access to copies of applications filed - Application refused

Legislation:

Guardianship and Administration Act 1990 (WA), s 112, s 112(4)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Proposed Represented Persons : N/A

Solicitors:

Applicant: Self-represented
Proposed Represented Persons : N/A

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

KWD [2011] WASAT 4
MB [2004] WAGAB 25
Re WA and IA Ex parte AA and JA [2011] WASAT 33

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The son of the elderly couple sought access to copies of a number of applications filed with the Tribunal by his sister for orders under the Guardianship and Administration Act 1990 (WA) for their parents. The son said the applications were brought for an improper purpose, which is disclosed in the application forms. He wants access to them as he says he is concerned that his sister will make further applications to the Tribunal, that the matters have not been finally resolved, and he may need to refer to these documents in the future so that his parents' wishes can be maintained.
The Tribunal was not persuaded by the reasons advanced by the applicant for access to be granted. If future applications are made to the Tribunal about his parents, the earlier applications filed would form part of the record before the Tribunal. In that event, the applicant could seek access to the documents at that time, to inform himself and prepare for those proceedings.
The stated need for access, so that the applicant can refer to the applications made about his parents to ensure their wishes are maintained in the future, is illdefined. If at a future date there are cogent reasons for the release of the application forms, an application could be made at that time.
The Tribunal also determined that the best interests of the elderly couple would not be served by the release of the application forms, as to do so would likely contribute to the ongoing conflict in the family.
The Tribunal decided that the application for access should be dismissed.

Background

These written reasons relate to a determination of the Tribunal that an application for access to documents held on the files of the Tribunal be dismissed.
The application for access to documents is brought pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) (GA Act). Access is sought to copies of applications filed with the Tribunal in 2010 made in respect of WA and IA who are the elderly parents of the applicant (AA).
Some of the background of this matter is set out in Re WA and IA Ex parte AA and JA [2011] WASAT 33 which is a costs determination arising out of the original applications made to the Tribunal and to which the applicant now seeks copies.
In summary, BA, the sister of the present applicant, AA, made applications to the Tribunal seeking orders for the appointment of herself as guardian and administrator of the estates of their elderly parents, WA and IA. On the day before the hearing of those applications, BA made further applications for orders revoking enduring powers of attorney (EPA) and enduring powers of guardianship (EPG) made by WA and IA. Both WA and IA, and their other children (AA and JA), opposed the proposed orders.
In her applications, BA made a number of unsubstantiated allegations about AA's conduct of their parents' financial and personal affairs.
Following the withdrawal of her applications, the Tribunal made a costs order against BA because the Tribunal found that she acted unreasonably in the conduct of the proceeding before the Tribunal so that the payment of some of AA's and JA's costs by BA was justified.

Application

In the present application, AA states:
I am applying to obtain copies of application forms filed with the Tribunal in 2010 [in] respect of my parents [WA and IA]. In these applications, my sister [BA] made a number of false allegations about me. My sister was unable to provide the Tribunal with any evidence to support these allegations. Due to the serious nature of these allegations, I was advised to seek legal advice. Even though my parents made their wishes plainly known to my sister, she persisted with her applications to have herself appointed as their administrator and guardian. This was also in spite of her obtaining medical opinion that both my parents had legal capacity and were still capable of making decisions and managing their affairs. I believe that the applications were made for an improper purpose which my sister very clearly stated in her notes attached to her application forms in that her primary motivation for becoming administrator and guardian for my parents was so that she could change their wills in favour of herself. I am concerned that she will, in the future, submit further applications to SAT and/or make further, false, serious allegations about myself or other family members. Therefore, because of the unreasonable nature of my sister's actions, I believe this issue has not been resolved. In my opinion, these application forms very clearly show [BA]'s thinking to be unbalanced, unreasonable and inappropriate, and for this reason I may need to refer to these documents in the future so that my parents' wishes can be maintained.

Section 112 of the GA Act

Section 112(4) of the GA Act regulates access to documents in respect of proceedings brought under the Act.
(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: $2 000 or imprisonment for 9 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.
The present application is brought under s 112(4) of the GA Act.
A decision of the Full Board of the Guardianship and Administration Board (Full Board), when considering an application for review of refusal of access made under s 112(4) of the GA Act, provides guidance as to the exercise of the discretion: see MB [2004] WAGAB 25 (MB). In that case, the Full Board made the following statements in respect of the operation of the section at [34].
The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Board are limited. 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. ... Documents and other materials held by the Board very often go to matters that are highly confidential in respect of the health and safety of the person who may be in need of a guardianship order. In those circumstances it is to be expected that only a limited class of persons would ordinarily be entitled to inspect documents held by the Board.
And later at [35] the Full Board restated the policy underpinnings of that provision:
... [A]s observed by the Board, the provisions of s 112 reinforces two important policies. Firstly, the protection and privacy of the person involved in the proceedings before the Board and in particular a proposed represented person or the represented person; and secondly, the public interest in the integrity of the Board's processes, which relies on the ability to obtain sensitive information from a variety of sources: see Re MM (2001) 28 SR (WA) 320 at 322.
The Full Board went on to say:
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.
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 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 Murcia and 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.'
When considering the nature of the discretion to allow access under s 112(4) of the GA Act, the Full Board confirmed that the discretion is a wide one and may be exercised on the application or the initiative of the Guardianship and Administration Board (now the Tribunal following the transfer of jurisdiction to the Tribunal in 2005).
The Full Board considered that the circumstances when this discretion might be exercised at [66] and [67]:
... [W]e 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. ...
In a recent decision of the Full Tribunal, KWD [2011] WASAT 4, the Tribunal reaffirmed that:
In the exercise of its discretion, the Tribunal should give attention to the policies that underpin s 112 of the GA Act as identified in Re MM; the protection of the privacy of the person for whom an application has been made and the public interest in the integrity of the Tribunal's processes which relies on the ability to obtain sensitive information from a variety of sources. In that case, the Tribunal went on to say at [93]:
The Tribunal must also observe the principles set out in s 4(2) of the GA Act, with the primary concern in any proceeding being the best interests of any represented person, or of a person in respect of whom an application is made (s 4(2)(a)).
Turning to the present application, there are three aspects to the request: the first is that AA says the issue which brought the applications to the Tribunal in the first place has not been resolved; the second relates to possible future proceedings before the Tribunal; and the third appears to be a more general need to maintain his parents' wishes in the face of what he says are his sister's unreasonable actions.
In relation to the proceedings brought by BA in relation to her parents, no orders were made following BA's application to withdraw the applications at the hearing. Despite the distress caused to WA and IA, and no doubt, to AA and JA, by those proceedings, there is no doubt that they have now been concluded. There are no applications before the Tribunal which relate to WA and IA other than this present application for access to material held on their Tribunal files. AA's position that the matters have not been resolved may reflect the ongoing family conflict, however, the matters before the Tribunal have been finalised by leave being granted to the applicant, BA, to withdraw her applications.
The contention of AA that he requires copies of the applications because BA may later make applications to the Tribunal (and make further false allegations about him or other family members) cannot sustain the grant of access at the present time to those documents. All the material filed with the Tribunal in respect of any proposed represented person is retained by the Tribunal and forms part of the Tribunal's file. In any future application which might be made in relation to WA or IA, all of the earlier material filed, including the present applicant's own submissions, will form part of the record of the Tribunal. It would not be appropriate for documents to be released now, simply to be part of the private records of AA. This is so, whether or not orders were made in respect of WA and IA. If in the future new applications are made by any person, access to the records of the Tribunal already held might be sought to enable the parties to prepare for those proceedings.
AA submits that the applications should be released to ensure the wishes of WA and IA are maintained. This part of the application is somewhat unclear. It is understood that AA is the donee of enduring powers of attorney and, with his sister JA appointed as enduring guardians of WA and IA. It is understood he is appointed executor in their wills. In these circumstances, AA has the relevant authority to give effect to the wishes of WA and IA, as expressed in those documents or gathered from them or directed by them from time to time. If there is a challenge in the future to those expressed wishes it is difficult to see what relevance the applications made by BA to the Tribunal would have to that question. Whatever the case, there is not a specific need identified for the release of the applications to AA and so that submission cannot be considered a cogent reason for the release of copies of the applications to him.
Additionally, the Tribunal is bound to have the best interests of WA and IA as the primary concern in any proceedings, including the determination of this application for access to documents. Having regard to the material before the Tribunal filed in respect of the original applications where health professionals reported the stress and anxiety caused to both WA and IA as a result of the conflict between their children, it cannot be in their best interests that the conflict continues. If the documents sought were to be released, they would likely contribute to the continuation of the family conflict.
For these reasons the application is dismissed.

I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER