RM v MF

[2012] WASC 367

RM -v- MF [2012] WASC 367

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 367
Published:	08/10/2012
Case No:	GDA:7/2012	Heard:	3 OCTOBER 2012
Coram:	HALL J	Delivered:	3/10/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	RM DK MF AW
Catchwords:	Appeal from State Administrative Tribunal Decision by a single member of SAT under Guardianship and Administration Act 1990 (WA) Whether appeal lies to Supreme Court from the decision of a single member Whether appeal competent
Legislation:	Guardianship and Administration Act 1990 (WA), s 17A, s 19, s 85
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RM -v- MF [2012] WASC 367 CORAM : HALL J HEARD : 3 OCTOBER 2012 DELIVERED : 3 OCTOBER 2012 PUBLISHED : 8 OCTOBER 2012 FILE NO/S : GDA 7 of 2012 BETWEEN : RM

DK
Appellants

AND

MF
First Respondent

AW
Second Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : MS D TAYLOR (SENIOR MEMBER)

File No : GAA 635 of 2012, GAA 637 of 2012

(Page 2)

Catchwords:

Appeal from State Administrative Tribunal - Decision by a single member of SAT under Guardianship and Administration Act 1990 (WA) - Whether appeal lies to Supreme Court from the decision of a single member - Whether appeal competent

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A, s 19, s 85

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants : No appearance
First Respondent : No appearance
Second Respondent : No appearance

Solicitors:

Appellants : No appearance
First Respondent : No appearance
Second Respondent : No appearance

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

Nil

(Page 3)

1 HALL J: This is an appeal from a decision of the State Administrative Tribunal (SAT) made on 4 May 2012. On 3 October 2012 I dismissed the appeal. These are my reasons for doing so.

2 The parties will be referred to by initials. That is to ensure compliance with the requirements of cl 12, sch 1 of the Guardianship and Administration Act 1990 (WA) which limits the publication of information that identifies parties to proceedings under the Act.

3 On 23 February 2012 the first respondent, MF, filed an application with the SAT for guardianship and administration orders pursuant to s 40 of the Guardianship and Administration Act 1990. The application related to RM, who is the first-named appellant. At the time of the application RM was in transition care at the Brightwater Care Group Facility at Kingsley. MF was a social worker with responsibility for RM's care. The second respondent, AW, was the manager of the Kingsley facility. The second-named appellant, DK, is one of RM's seven children.

4 The hearing in the tribunal commenced before a senior member on 26 March 2012. The hearing was adjourned part heard until 4 May 2012. For present purposes it is unnecessary to refer in any detail to what occurred at the hearing. At the conclusion of the proceedings on 4 May 2012 the senior member made an order appointing another of RM's children to be a limited guardian for a period of five years. Orders were also made appointing the same person as a plenary administrator and revoking two enduring powers of attorney previously made by RM.

5 On 23 May 2012 an appeal notice was filed in this court. The appeal notice was apparently completed and signed by DK. It identified the decision appealed from only by reference to the date of 4 May 2012 and the name of the senior member who made the decision on that day. The appeal notice did not set out any grounds of appeal and, accordingly, did not comply with the requirements of O 65 r 10(1)(c) of the Supreme Court Rules 1971 (WA).

6 The respondents, MF and AW, have both written to the court advising that they do not intend to appear or participate in the appeal and will abide by any decision of this court.

7 The appeal notice states that it is an appeal brought pursuant to s 19 of the Guardianship and Administration Act. That section provides that an appeal may be brought, by leave, to a single judge of this court from a determination of the SAT under the Act when the tribunal is constituted by three members not including the President. An appeal, by leave, lies to

(Page 4)

the Court of Appeal from a determination of the tribunal constituted by three members including the President. That is to say, the only decisions for which there is provision for appeal to this court are decisions made by a coram of three tribunal members.

8 Section 19 states that other than as provided by that section there is no appeal from a determination of the tribunal. Where a determination is made by a single member of the tribunal a party who is aggrieved may request the President to arrange for a full tribunal to review the determination: s 17A.

9 It is clear from this that an appeal does not lie to this court pursuant to s 19 of the Act from the decision of a single member of the tribunal. The legislative scheme is that single member decisions are subject to internal review only and that appeals to this court will only arise after any such review has occurred and only in respect of the review decision.

10 On 11 July 2012 a letter was written to DK by an officer of the court. That letter was written at my direction. The letter noted the terms of s 19 of the Act and that an appeal to this court did not lie from the decision of a single member of the tribunal pursuant to that section. The letter stated that if DK wished to discontinue the appeal he should file a notice of discontinuance. If he wished to argue that the appeal was competent he was informed that the matter would be listed before a judge to determine whether leave to appeal should be granted. The letter also noted that the appeal notice did not comply with the rules in that the wrong form had been used, it did not provide sufficient details of the decision appealed from and it contained no grounds of appeal.

11 The letter was addressed to DK at the address he provided in the appeal notice. Previous correspondence to him at that address had been replied to by him. The letter was also copied to an address of DK in Sydney. A copy of the letter was also sent to DK by email on 8 August 2012 to an email address that he provided in the appeal notice. A further copy was sent to another email address he provided on 22 August 2012.

12 No notice of discontinuance was filed. Nor was any response received to the letter of 11 July 2012. In these circumstances, the matter was listed for a directions hearing before me on 3 October 2012. A letter advising DK of the date and time of that directions hearing was emailed and posted to him on 20 September 2012.

13 On 3 October 2012 a directions hearing was convened before me. DK did not appear. I dismissed the appeal because, in my view, it was

(Page 5)

incompetent. I came to that conclusion for the reasons referred to above, in particular that no appeal lies to this court under s 19 of the Act from a decision of a single member of the tribunal. No argument to the contrary has been raised and there is no reasonable basis for any contrary argument.

14 In any event, information provided by the tribunal indicates that the decisions made on 4 May 2012 were subject to a review under s 85 of the Act and further determinations were made by a single member of the tribunal on 24 May 2012. Accordingly, the decisions made on 4 May 2012 are no longer the operative determinations in respect of RM. Furthermore, the determinations made on 24 May 2012 are the subject of a review by the tribunal under s 17A of the Act. Thus it would seem that the decisions that are the subject of this appeal have been superseded in any event.