| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : SH and EJH [2013] WASAT 176 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MS D TAYLOR (SENIOR MEMBER)
MS A SEGHEZZI (SESSIONAL MEMBER)
HEARD : 13 SEPTEMBER 2013 DELIVERED : 13 SEPTEMBER 2013 PUBLISHED : 29 OCTOBER 2013 FILE NO/S : GAA 1710 of 2013 BETWEEN : SH Applicant
AND
EJH
Represented Person
Catchwords: Guardianship and administration - Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) - Inspection or access to documents or material - s 112(4) of the Guardianship and Administration Act 1990 (WA) - Nearest relative - Sole sibling of represented person requested audio recording of hearing - Legitimate expectation of party to be provided with audio recording - Best interests of the represented person - Potential adverse
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affect on represented person's mental health if recording provided to his sibling - Practice and procedure - Extension of time to seek review Legislation: Guardianship and Administration Act 1990 (WA), s 3(1), s 4(2), s 17A, s 40(1), s 41(a)(iii), s 84, s 112(4)
State Administrative Tribunal Act 2004 (WA), s 32(1)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10 Result: Leave granted for an extension of time to seek review
Application for review dismissed
Decision to refuse access to audio recording of hearing affirmed
Summary of Tribunal's decision: The applicant who is the represented person's sister made an application under s 112(4) of the Guardianship and Administration Act 1990 (WA) for access to an audio recording of the guardianship hearing concerning the represented person. That application was refused by a single member.
The Tribunal received a letter from the applicant which was accepted as a s 17A application under the Guardianship and Administration Act 1990 (WA) for review by a Full Tribunal. The application was made 12 days out of time. Therefore, the Tribunal had to consider whether an extension of time should be granted.
The Tribunal granted an extension of time to the applicant, as the applicant was absent for two weeks, there was an arguable case for review, and there was no prejudice to anyone in granting an extension of time.
The Tribunal found that the applicant should not be granted access to the audio recording for three reasons. First, the Tribunal accepted evidence from the represented person's cousin and family friend that providing the recording to his sister could adversely affect the represented person's mental health. Second, because during the hearing the represented person's family friend provided to the applicant substantially the information she sought. Finally, because the guardianship application had been dismissed and therefore there was no guardianship order in place for the represented person. Ultimately, the Tribunal found it would be contrary to the represented person's best interests for the recording to be released to the applicant.
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The application for review was dismissed, and the decision to refuse access was affirmed.
Category: B
Representation: Counsel:
Applicant : In person
Represented Person : N/A
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
O'Connor and Town of Victoria Park [2005] WASAT 161
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REASONS FOR DECISION OF THE TRIBUNAL:
Background and application 1 On 6 February 2013, Senior Member Murray Allen conducted a hearing in relation to both an application under s 40(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) brought by a social worker for an order appointing a guardian for the represented person and a statutory review under s 84 of the GA Act of an administration order made in respect of the represented person in June 2012. The represented person has a diagnosis of mental illness, namely, chronic paranoid schizophrenia, and has suffered from that illness for many years. On 6 February 2013, Senior Member Allen adjourned the matter or matters part heard to a date to be fixed. 2 On 12 February 2013, the applicant, who is the represented person's sister and sole sibling, made an application under s 112(4) of the GA Act, for access to the audio recording of the hearing on 6 February 2013. The applicant expressed her reasons for seeking access to the recording as follows: I am the respondent's sister, and next of kin in Australia. I was not able to attend the hearing on 6th Feb 2013. I will listen to the audio recording seeking to understand why the application for guardianship was made, and the findings of the Tribunal so far. I do this with a view to protecting my brother's best interests. 3 On 20 February 2013, the Tribunal invited the represented person and the Public Advocate to make written submissions regarding whether or not access to the recording should be granted. 4 On 25 February 2013, the investigating advocate with the carriage of the matter in the Office of the Public Advocate made a written submission stating that, although the represented person was very clear that he did not want his sister involved in the hearing or to attend the hearing, even by telephone, as he found it difficult, he said, to cope with her attending, the investigating advocate did not see why the applicant should not have access to the transcript. The investigating advocate said: This will enable her to have an understanding of the outcome of the hearing without having participated. 5 On 28 February 2013, the represented person made a written submission objecting to his sister being provided access to the recording. (Page 5)
The represented person said that he had only seen his sister half a dozen times over the last 40 years. 6 On 22 March 2013, Senior Member Allen refused the applicant's application for access to the audio recording for essentially four reasons, which we will discuss later. 7 On 6 May 2013, the Tribunal received a letter from the applicant posted on 2 May 2013, which was taken by the Tribunal as an application for review, under s 17A of the GA Act, of the decision to refuse access to the recording. Section 17A of the GA Act enables a party who is aggrieved by a decision of the Tribunal constituted by a single member to seek review by a Full Tribunal, comprising three members, including a judicial member. 8 Rule 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) requires that any such application be commenced within 28 days of the date on which the Tribunal gave notice of the decision to the aggrieved person. The applicant's application for review was therefore made approximately 12 days out of time, although the letter communicating the application was posted only approximately eight days out of time. The Tribunal has discretion to extend the time period under r 10 of the SAT Rules. 9 The Tribunal listed the consideration of whether to extend time and the substantive application for review of the decision to refuse access to the recording for hearing concurrently before us today. 10 Finally, by way of background, on 7 May 2013 Senior Member Allen conducted a further hearing in which he dismissed the application for a guardianship order in relation to the represented person but confirmed, for a further period of three years, the administration order appointing the Public Trustee as plenary administrator.
Should time in which to seek review be extended? 11 It is well recognised that there are four principal considerations in relation to an application for an extension of time. They are: firstly, the length of delay; secondly, the reasons for delay; thirdly, whether there is an arguable case for review; and fourthly, whether it would cause prejudice to any party to grant an extension - see O'Connor and Town of Victoria Park [2005] WASAT 161 at [38] [51]. (Page 6)
12 In this case, the length of delay was not significant. As we have said, it was in the order of 12 days, and review was sought within about eight days of the expiry of the period of 28 days. 13 There is a reasonable explanation for the delay, namely, that the applicant was absent for two weeks. There is an arguable case for review, for reasons that will become clear when we consider the review, and there is no relevant prejudice to anyone if an extension of time were granted. 14 We, therefore, grant an extension of time under r 10 of the SAT Rules in which to seek review.
What is the correct and preferable decision in relation to the review? 15 Section 112(4) of the GA Act states that: 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. 16 The primary concern of the Tribunal in relation to the application for review, as in relation to all applications under the GA Act, is the 'best interests of any represented person, or of a person in respect of whom an application is made' - s 4(2) of the GA Act. A second important consideration in this review is that under s 32(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the Tribunal is bound by the rules of natural justice, except to the extent that the SAT Act or the enabling Act under which a matter is brought before the Tribunal authorises, whether expressly or by implication, a departure from those rules. 17 In this case, the GA Act is the enabling Act, and by virtue of its overriding imperative to protect the best interests of any represented person, or of a person in respect of whom an application is made, the GA Act discloses, potentially, an authorisation to depart from the rules of natural justice in a particular case where such departure is in the best interests of the represented person, or person in respect of whom the application is made. 18 The applicant has a reasonable expectation of being allowed to attend hearings in relation to her brother, or if she does not attend, especially if (Page 7)
she does not attend because of his wishes for her not to, to know what occurred at the hearing. This is because notice of the hearing is required to be given to her as 'the nearest relative' by s 41(1)(a)(iii) of the GA Act. 19 Although under the definition of 'nearest relative' in s 3(1) of the GA Act, a child is higher in the list of relatives than a brother or sister and although the represented person has a child, namely, a daughter in the United States, this is subject to them being 'reasonably available at the relevant time'. In this case, it is arguable that the represented person's daughter is not reasonably available at the relevant time and, therefore, that the applicant is, in fact, the represented person's 'nearest relative'. In any case, the applicant was given notice of the hearing before the Tribunal on 6 February 2013, and that made her a 'party' for the purposes of the GA Act. 20 A party has a reasonable expectation to attend a hearing, or if they do not attend, to know what occurred at a hearing. That is the case even in a jurisdiction in which the best interests of a person are of paramount consideration. However, if a party's attendance at a hearing, or access to a transcript or recording of a hearing, would be contrary to the best interests of the represented person, or persons in respect of whom the application is made, attendance or access may be refused. 21 In the circumstances of this case, the single member determined to refuse to allow access to the recording for essentially four reasons. The first was that prior to the hearing on 6 February 2013, the Tribunal was advised by the Public Advocate and by another person that the represented person did not want the applicant to attend the hearing as her attendance would be distressing to him. The applicant did not contest this and on the evidence that we have been given by the represented person's and the applicant's cousin and by a long term family friend, it is clearly the case. 22 However, we would not regard the represented person's clearly expressed wish for the applicant not to attend the hearing as a cogent reason to deny her access to the recording. When a party is not allowed to attend a hearing because attendance of that party would be distressing to a represented person, or a proposed represented person, and therefore contrary to his or her best interests, there is, if anything, an even greater expectation that the party would be allowed access to the recording to know what occurred, and therefore what further role he or she should play in the proceeding. (Page 8)
23 The second reason for the single member's decision was that the represented person had, as we have previously noted, indicated in response to the Tribunal's request for a submission, that he objected to his sister having access to the recording, in part because, he said, they had had little contact over several decades. That latter statement is not, in fact, entirely accurate. While the represented person most recently saw his sister at his cousin's house in December 2010, they have had some telephone contact since that time and have had intermittent telephone contact and correspondence over a number of years. When the represented person was hospitalised in Europe in the late 1980s, it was the applicant that the Australian Government authorities contacted and the applicant sent money to her brother at that time. 24 Although the represented person's views as to whether his sister should have access to the recording are certainly a relevant and material consideration in determining what is in his best interests, ultimately best interests consideration is an objective one. We would not have refused access simply because of the represented person's professed view. 25 The third reason given by the single member was that the application for a guardianship order was made by a social worker and the applicant could seek information from that source about the application. We do not consider that to be a cogent reason to deny access to a party, given that such information would necessarily be second hand. 26 The fourth reason for the single member's decision was that the Tribunal had not, as yet, made any findings in relation to the guardianship application as the matter had been adjourned to see if the represented person's financial and social issues would stabilise. And in fact, they did. However, we would not regard that as a cogent reason to deny access to the recording to a party. Indeed, the fact that the guardianship application had not been finalised would be a reason why a party would wish to have access to the recording, in order to be able to participate meaningfully in relation to the determination of the application. 27 However, a further matter was disclosed in the evidence provided to us today. That further matter was in the evidence of both the represented person's cousin and his long term family friend. 28 The represented person's cousin and family friend have, we find, played a significant role in the represented person's life and wellbeing over many years, and certainly over the past four or five years in which, sadly, the represented person has had difficulties as a result of his mental (Page 9)
illness. Both witnesses said that not only does the represented person not wish to have any contact with his sister, and that that view has been expressed over a considerable period of time, but that if the recording were provided to his sister, it could potentially and significantly, adversely affect the represented person's mental health. 29 The represented person's cousin gave evidence to the Tribunal that if the recording were provided to the applicant, 'I am really concerned that it may really upset [the represented person] in a way causing him to run away. He will abscond or worse'. She said that 'We have to be very careful that nothing will upset [the represented person]'. She said that, 'I dread what would happen' if the represented person knew that the recording of the hearing had been provided to his sister. The represented person's family friend agreed and echoed these concerns. 30 The applicant questioned the veracity of this evidence. However, given both witnesses' close relationship with the represented person, particularly during the past troubling period, we have no hesitation in accepting their evidence of the very real potential adverse affect on the represented person's mental health, of knowing that the recording is released to his sister. 31 It is also significant, in our view, that during the hearing today, by virtue of the represented person's family friend's recounting of the represented person's circumstances over recent times, that the applicant has, in fact, been provided with substantially the information she sought, about what prompted the guardianship application and the circumstances in which it was considered by the Tribunal. 32 Finally, we consider it significant that the guardianship application was dismissed and that, currently, there is no guardianship order in respect of the represented person. 33 In all of those circumstances, we do not consider that it is in the represented person's best interests, and indeed, that it would be contrary to his best interests, for the recording of the hearing on 6 February 2013 to be provided to his sister. 34 In making that finding, for different reasons to those expressed by the single member, we do not wish to be taken as expressing any doubt as to the applicant's motivations in seeking access to the recording and wishing to be involved generally in the proceeding. We have no doubt, and neither do the represented person's cousin and family friend have any (Page 10)
doubt, that the applicant is acting, and wishes to act, in the represented person's best interests.
Further proceedings 35 Finally, and related to this observation, although it is outside the scope of this review, given that the administration order will be the subject of a statutory review and given that, potentially, guardianship orders may be sought in the future in relation to the represented person, the applicant should be noted on the Tribunal file as an interested person in relation to any proceedings in relation to her brother. 36 The question of whether the applicant should be allowed to attend, whether in person or by telephone, any future hearings and/or have access to the recording or transcript of any such hearings, are decisions to be made in the future, having regard to an assessment, objectively made, of the best interests of the represented person. The represented person's views and the symptoms of his illness may well change over time.
Orders 37 For these reasons, we now make the following orders. (Page 11)
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