RET
[2006] WASAT 151
•9 JUNE 2006
RET [2006] WASAT 151
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 151 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:838/2006 | 11 MAY 2006 | |
| Coram: | MS F CHILD (MEMBER) | 9/06/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | RET |
Catchwords: | Guardianship and administration – Inspection of documents – Represented person deceased – Need for access not demonstrated – Application dismissed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 112(4) State Administrative Tribunal Act 2004 (WA), s 78, s 79 |
Case References: | Re MB [2004] WAGAB 25 Re MM (2001) 28 SR (WA) 320 DeHass v Murcia and Associates (Unreported, Supreme Court of Western Australia Library No 980633; 14 September 1998) |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RET [2006] WASAT 151 MEMBER : MS F CHILD (MEMBER) HEARD : 11 MAY 2006 DELIVERED : 9 JUNE 2006 FILE NO/S : GAA 838 of 2006 BETWEEN : RET
- Represented Person
Catchwords:
Guardianship and administration – Inspection of documents – Represented person deceased – Need for access not demonstrated – Application dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 112(4)
State Administrative Tribunal Act 2004 (WA), s 78, s 79
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Re MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320
Case(s) also cited:
DeHass v Murcia and Associates (Unreported, Supreme Court of Western Australia Library No 980633; 14 September 1998)
(Page 3)
Summary of Tribunal's decision
1 An application for inspection of documents held on a file of the State Administrative Tribunal was dismissed as it was determined that the applicant had not demonstrated a need for access to the documents. The documents in question were held on a file dealing with applications made in November 2005 for the appointment of an administrator and a guardian for an elderly man with cognitive impairment. The applications were heard in January 2006 and an administration order made. The elderly man for whom the order was made died in May 2006 prior to the application for inspection being lodged.
Application
2 These written reasons relate to a determination of the Tribunal that an application for inspection of documents be dismissed.
3 The application for inspection is brought under s 112(4) of the Guardianship and Administration Act 1990 (WA) (the GA Act) for photocopies of documents held by the Tribunal on a file relating to an application for orders for guardianship and administration made in respect of RET (the represented person) in November 2005. The Tribunal has been advised that the represented person died on 7 May 2006.
4 The application for inspection was made by the son of the represented person (the applicant) on 8 May 2006.
5 For the purposes of these reasons, names of persons, including the applicant, will be anonymised consistent with the practice of the Tribunal in respect of applications made under the GA Act to avoid identification of the represented person.
6 The represented person was made subject to an administration order, dated 24 January 2006, by which DC was appointed his plenary administrator and enduring power of attorney, dated 5 April 2005, by which the represented person had appointed DC as his attorney was revoked. The application for guardianship was dismissed.
7 The application for inspection is framed in the following terms:
"We wish to seek to understand as to why the decision resulted as it did.
(Page 4)
- Why was the authority granted to [DC]."
8 The order sought by the applicant is as follows:
"All documentation other than our own submission.
Photocopy of the relevant documentation."
Legislation
9 Section 112(4) of the GA Act provides:
"(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."
11 The Full Board, when considering an application for review of a decision refusing inspection under s 112(4) made the following statements in respect of the operation of that section. (See Re MB now reported as Re MB[2004] WAGAB 25 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."
(Page 5)
12 And later at [35], the Full Board restated the policy underpinnings of the provision:
"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) 28 SR (WA) 320"
13 We agree with the observation of the Board in Re MM (2001) 28 SR (WA) 320, at page 332, that s 112(4) provided 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.
14 The Board determined that the circumstances in which the exercise of the discretion under s 112(4) would be exercised are limited at [60]:
"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 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.' "
(Page 6)
16 The reason given for the application for inspection in this present case is so that the applicant may "seek to understand" the decision made to appoint DC as administrator in January 2006. No further reasons are advanced for the need to access copies of the material held. As the represented person is now deceased the application for access to the documents and any understanding gained by the applicant from such access is not sought for the purposes of bringing any further proceeding before the Tribunal.
17 In my view, the applicant has not identified cogent reasons or demonstrated any need for access to the material held by the Tribunal and so I find that this is not an appropriate case to exercise the discretion of the Tribunal to allow access under s 112(4).
18 Further, given the terms in which the application for inspection is framed, I consider that it is misconceived as it is in substance a request for reasons for the decision of the Tribunal made on 24 January 2006.
19 The State Administrative Tribunal Act 2004 (WA) (SAT Act) provides for request of reasons by a party to proceedings. The relevant provisions are s 78 and s 79:
"78. Written reasons may be requested
(1) If the Tribunal makes a decision, whether or not a final decision, without having reserved its decision and does not give its reasons for the decision in writing, a party may, within the period of 28 days after the day on which the decision is given, request that the Tribunal give its reasons in writing.
(2) The Tribunal is to give written reasons that a party requests under subsection (1) within the period of 90 days after the day on which it receives the request or within an extension of that period given by the President.
79. Written decision or reasons using transcript
A written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally is sufficient for a provision of this Act that requires the decision or reasons to be in writing."
(Page 7)
20 Having reviewed the transcript of the hearing of 24 January 2006, conducted by Senior Sessional Member Dr Alan McCutcheon, in which the application for the appointment of a guardian was dismissed and an administration order was made, it is apparent that oral reasons were delivered for the decisions made, including the appointment of DC as administrator, at the conclusion of the hearing when the orders were announced. A copy of the transcript of the hearing was sent to the applicant on or around 15 May 2006.
21 A partyis entitled to seek written reasons for a final decision of the Tribunal pursuant to s 78 of the SAT Act. The applicant was the applicant in the matter in which the order was made for the appointment of an administrator for the represented person and so was a party in that proceeding. Requests for reasons may be made by a party within the period of 28 days after the day on which the decision is given. Since the original decisions were made in this matter in January 2006 and written reasons were not requested at that time, such a request would now be out of time.
22 However, pursuant to s 79 of the SAT Act provision of that part of the transcript of the hearing in which a decision is given orally or reasons are given orally is sufficient for the provision of written reasons under that section.
23 The application for inspection is dismissed.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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