SH and EJH - [2013] WASAT 176

SH and EJH [2013] WASAT 176

Last Update: 04/11/2013

SH and EJH [2013] WASAT 176
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 176
Published:	29/10/2013
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1710/2013	Heard:	13 SEPTEMBER 2013
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT), MS D TAYLOR (SENIOR MEMBER), MS A SEGHEZZI (SESSIONAL MEMBER)	Delivered:	13/09/2013
No of Pages:	11	Judgment Part:	1 of 1
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
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	SH EJH
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 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
Case References:	O'Connor and Town of Victoria Park [2005] WASAT 161
Summary:	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. The application for review was dismissed, and the decision to refuse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SH and EJH

Details

AGLC: SH and EJH [2013] WASAT 176
Case: [2013] WASAT 176
Decision Date: 29 OCTOBER 2013

CaseChat Overview and Summary

The case involved SH, the applicant, and EJH, the respondent, who was under guardianship and administration. SH, the nearest relative of EJH, sought an audio recording of a hearing held under the Guardianship and Administration Act 1990 (WA). The court was required to decide whether to grant an extension of time for SH to seek a review of the decision to deny access to the audio recording and whether the decision to deny access was in the best interests of EJH.

The court considered the statutory framework and the interests of the represented person, EJH, in determining the matter. The court recognised the legitimate expectation of the nearest relative to be provided with an audio recording of the hearing. However, the court also considered the potential adverse effect on EJH's mental health if the recording was provided to SH. The court found that the decision to refuse access to the audio recording was in the best interests of EJH, and therefore, the application for review was dismissed. The court also granted leave for an extension of time to seek review.

The court's decision affirmed the decision to refuse access to the audio recording of the hearing and dismissed the application for review. The court found that the potential adverse effect on EJH's mental health if the recording was provided to SH outweighed the legitimate expectation of SH to be provided with the recording. The court also granted leave for an extension of time to seek review. The final orders of the court were that leave was granted for an extension of time to seek review and the application for review was dismissed, and the decision to refuse access to the audio recording of the hearing was affirmed.

Orders

Orders of the court

Leave granted for an extension of time to seek review

Application for review dismissed

Decision to refuse access to audio recording of hearing affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.