T v State Administrative Tribunal - [2021] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   T -v- STATE ADMINISTRATIVE TRIBUNAL [2021] WASC 67
CORAM:   QUINLAN CJ
HEARD:   11 MARCH 2021
DELIVERED          :   11 MARCH 2021
FILE NO/S:   GDA 11 of 2020
BETWEEN:   T
Appellant
AND
STATE ADMINISTRATIVE TRIBUNAL
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: DEPUTY PRESIDENT SHARP
MEMBER K Y LOH
SENIOR SESSIONAL MEMBER S GILLETT

File Number : GAA 1311 of 2020

Catchwords:

Guardianship and administration – Appeal from determination of State Administrative Tribunal to appoint guardian and administrator – Review of guardianship and administration orders by Tribunal imminent – Public interest in avoiding parallel proceedings – Leave to appeal refused

Legislation:

Guardianship and Administration Act 1990 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

Cases referred to in decision:

AS [2018] WASAT 1
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
SH v Chief Executive Officer of Department of Communities [2019] WASCA 31

QUINLAN CJ:

(This judgment was delivered extemporaneously on 11 March 2021 and has been edited for publication.)

Introduction

This is an application for leave to appeal from a determination of the State Administrative Tribunal (the Tribunal) under the Guardianship and Administration Act 1990 (WA) (the Act).
On 1 April 2020, the Tribunal (consisting of one member), made guardianship and administration orders in relation to GG, a young man with autism spectrum disorder and an intellectual disability. The Public Trustee was appointed as GG's plenary administrator and the Public Advocate appointed as GG's limited guardian. On 2 and 3 July 2020, those orders were reviewed by the Full Tribunal, pursuant to s 17A of the Act. Following the review, the Full Tribunal affirmed the orders made by the single member.
The orders made by the Tribunal included an order that they be reviewed by 1 April 2021.
The applicant, Ms T, is GG's mother. She seeks leave to appeal the determination of the Tribunal dated 3 July 2020.
The particular course of events in the present case have meant that Ms T now faces parallel proceedings in relation to GG. That is, in this appeal, she seeks leave to appeal the correctness of the guardianship and administration orders and, at the same time those orders are to be the subject of a statutory review by the Tribunal.
There are a number of reasons for that situation having arisen. The period between the Tribunal's determination and review date (1 April 2021) was, as the Tribunal recognised, unusually short. The review by the Full Tribunal necessarily took time. Ms T's notice of appeal was filed out of time and she had difficulty obtaining transcripts of the proceedings before the Tribunal (including making further applications to the Tribunal for that purpose). I also recognise that this Court, too, must bear some of the responsibility for the delay as it took time to receive the relevant records of the Tribunal and to have the matter listed.
Be that as it may, the appeal was brought on for directions on 25 February 2021. At that hearing I enquired of Ms T as to the progress of the review of the guardianship and administration orders. She advised me that she had not yet heard anything in relation to the review. She said that she still did not have a copy of the transcript of the July 2020 hearing, which the Court has since provided to her.
Given the public interest in avoiding parallel proceedings I adjourned the hearing until today, in order that enquiries could be made in relation to the conduct of the review. My chambers wrote to the Tribunal, the Public Trustee and the Public Advocate enquiring as to the status of the review required to be undertaken by 1 April 2021.
On 5 March 2021 the Executive Officer of the Tribunal responded to that correspondence advising that it proposed to list the review on 29 March 2021. Yesterday, the Public Trustee responded, enclosing a copy of its report to the Tribunal for the purposes of the impending review. With the consent of the Public Trustee, I provided a copy of that report to Ms T in the course of today's hearing.
The Public Advocate did not respond to the correspondence from my chambers.
The fact that there is a pending review of GG's guardianship and administration orders is relevant to whether leave should be granted to appeal the original decision of the Tribunal.
It is to that issue that I now turn.

Leave to appeal

Appeals from the Tribunal to this Court in relation to determinations under the Act are provided for in pt 3 div 3 of the Act. Section 19 provides that appeals from the Tribunal when constituted by three members not including the President may be brought to a single judge of this Court, by leave of a judge of the Court.
Sections 21 and 22 of the Act provide:
21. Grounds
An application for leave to appeal may only be made on a ground or grounds coming within the following –
(a)that the State Administrative Tribunal –
(i)made an error of law or fact, or of both law and fact; or
(ii)acted without or in excess of jurisdiction,
or did both of those things; or
(b)that there is some other reason that is sufficient to justify a review of the determination.
22.Grant or refusal of leave
(1)The judge shall grant leave to appeal only if it is shown to his satisfaction that there is a prima facie case justifying an appeal on one or more of the grounds specified in section 21.
(2)An order granting leave to appeal shall show the ground or grounds of the appeal and, subject to section 27, the appeal shall not be heard or determined on any ground that is not shown in the order.
(3)In determining an application for leave to appeal the judge may inform himself in such manner as he thinks fit.
The grounds of review contemplated by s 21 are wider than those found in the State Administrative Tribunal Act 2004 (WA) in relation to decisions of the Tribunal generally.[1] An appeal may be brought on either an error of fact or law and, indeed, s 21(b) provides, in an appropriate case, a more general supervisory jurisdiction.
[1] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 105.
The breadth of the Court's appellate jurisdiction under the Act need not be finally determined. I would, however, observe that, while the Court's appellate jurisdiction under s 21 is broad, in my view it is nevertheless generally concerned with the correction of error. In particular, in my view, it is not intended to supplant the comprehensive review process provided for in pt 7 of the Act. In the usual course, for example, a change in a represented person's circumstances is properly to be addressed in a review before the Tribunal rather than in an appeal to this Court. It is the Tribunal, and not this Court, that has primary responsibility for making determinations under the Act.
In relation to the question of whether leave should be granted in a particular case, while it is a requirement of s 22(1) that the applicant demonstrate a prima facie case, the considerations relevant to the grant of leave are not confined to whether the applicant has a prima facie case. In that regard, in my view, the requirement for leave in the Act reflects the same statutory purpose as the requirement for leave from decisions of the Tribunal under s 105 of the SAT Act.
In that context, in SH v Chief Executive Officer of Department of Communities, Mitchell and Pritchard JJA and I said:[2]
As this court recognised in Paridis v Settlement Agents Supervisory Board, the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.
… Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal.
[2] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 (SH v Chief Executive Officer of Department of Communities) [51], [53] (Quinlan CJ, Mitchell & Pritchard JJA).
In SH v Chief Executive Officer of Department of Communities, the appellant sought leave to appeal a decision of the Tribunal dismissing an application by him to review a care planning decision made in relation to his granddaughter (C). The care planning decision had been made under the Children and Community Services Act 2004 (WA) (CCS Act). While the Court concluded that the Tribunal had erred in law (in concluding that it did not have jurisdiction to consider the application), leave to appeal was nevertheless refused.
In that context, the Court observed that the care planning decision sought to be reviewed by the appellant had been superseded by a later care planning decision. The Court was not satisfied that any substantial injustice would be occasioned by leaving the Tribunal's original decision undisturbed.
In that regard, we said:[3]
The appellant will therefore have available to him a more appropriate avenue for review than a review of the [earlier] care planning decision.
…
As matters stand, a further annual review of C's care plan is imminent. That review, and the resolution of the internal review of the [subsequent] modifications, are mandatory requirements of the CCS Act. Those reviews should include consideration of the operation and effectiveness of the [subsequent] care planning decision in relation to the supervision of C. It is in the best interests of C that any review of her care plan be based on the most up-to-date information available.
In our view, notwithstanding the unfortunate delays in relation to the internal review of the [subsequent] care planning decision, it would not be in the best interests of C for those reviews to be conducted in parallel with a review by the Tribunal of the [earlier] care planning decision. As it is, there are already two parallel reviews underway that must be completed. A third review would only add an additional layer of complexity and uncertainty into C's life.
[3] SH v Chief Executive Officer of Department of Communities [97], [104], [105] (Quinlan CJ, Mitchell & Pritchard JJA).
Turning then to the present case.

Application to the present case

As noted above, the orders made by the Tribunal appointed the Public Trustee as plenary administrator of GG's estate.
The Public Advocate was appointed limited guardian of GG with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)To determine the services to which the represented person should have access.
In making those findings the Tribunal found, as it was required to do in order to be able to make guardianship and administration orders, that GG was unable to make reasonable judgments in respect of matters concerning his estate, was incapable of looking after his own care and safety and in need of oversight, care or control in the interests of his own care and safety (the capacity issue).[4]
[4] Hearing ts 87 (03/07/2020).
The Tribunal also found, for the purposes of s 43(1)(c) and s 64(1)(b) of the Act, that GG was in need of a guardian and an administrator.[5] That question is obviously separate and distinct from the capacity issue. It is, of course entirely possible that informal arrangements, involving a person's loved ones, may adequately protect a person who experiences some relevant lack of capacity.[6]
[5] Hearing ts 87 ‑ 88 (03/07/2020).
[6] See e.g. AS [2018] WASAT 1 [51] ‑ [53].
That principle is, of course, expressly recognised in the principle identified in s 4(4) of the Act, namely that:
A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
Implicitly, at least, the Tribunal in the present case, in reaching the conclusion that he was in need of both a guardian and administrator, found that GG's needs could not be met by Ms T and other family members.
That notion was perhaps made more explicit by the fact that the Tribunal concluded that it had concerns about Ms T being appointed as GG's guardian and administrator. A particular matter of relevance to that decision was the decision as to where GG would live.
At the time of the hearing before the Tribunal, GG was living with Ms T. The Tribunal, however, said:[7]
In terms of the decision that will need to be made at some point about where [GG] lives, a concern we have with regard to the ability of Ms [T] to make that decision is quite simply Ms [T] has told the tribunal that there is some possibility that she herself may be moving to Esperance, and it's not clear to the tribunal how that's going to leave the accommodation requirements for [GG]. At the moment the property that [GG], his mother and his sister live in is rented.
We understand that the tenancy is to come to an end at the end of the year, and so we have a concern that the needs of [GG] as to where he lives are going to be confused to some extent with the concerns of Ms [T] as to where she lives, and the tribunal has taken the view as far as accommodation is concerned that it would be better dealt with by an independent decision-maker until such time as at least that decision has passed.
In terms of the services, there are some complication with the negotiations at the moment being conducted by the NDIS. The tribunal has concluded that [GG]'s interests would be better served by, again, somebody independent involving themselves in the negotiations with the NDIS until such time as that side of things has been sorted out with the various people concerned.
As far as the determination as to contact, the tribunal is in no doubt that that decision-making process needs to be made by an independent person. The decision as to who [GG] sees and who [GG] doesn't see, at the end of the day, we think, ought to be made by somebody who has no personal interest in the matter. I can add no more about that. As far as the treatment decisions are concerned, again, the tribunal has decided at this time that treatment decisions should be made by an independent person.
[7] Hearing ts 89 ‑ 90 (03/07/2020).
In relation to the appointment of an administrator, the Tribunal's conclusion that Ms T was not a suitable administrator was based solely on its conclusion as to whether she could work cooperatively with the guardian. The Tribunal said:[8]
Turning to the administrator, the tribunal needs to be satisfied that the administrator and the guardian can work together. There are often issues with regard to guardians making decisions which require the cooperation of the administrator. In this case the tribunal is not satisfied that Ms [T] could work cooperatively with the guardian in terms of the funding of anything that needs to be done. The tribunal, on that basis, has concluded that Ms [T] is not suitable to be appointed as administrator.
[8] Hearing ts 90 (03/07/2020).
As to the future, the Tribunal said:[9]
A point that I want to make is this is a time in [GG]'s life where a number of decisions have to be made. I'm talking about his accommodation. I'm talking about his access to services and the negotiations with the NDIS and so on. It may be that once those matters are resolved that the decision made by the Tribunal today should be reconsidered.
So although we don't need to order a review of these orders for up to five years, we've decided that they should be looked at again soon because, as I say, things may well change, and so we're going to leave the date of review for both the administration and the guardian orders as ordered by Member Child, which is 1 April 2021. So in about 10 months time the tribunal will revisit this and see what the situation is at that point.
[9] Hearing ts 91 (03/07/2020).
It is in that context that the upcoming review to take place 29 March 2021 will be undertaken; namely the recognition that circumstances may well change in the short term.
Ms T's application for leave to appeal to this Court raises a number of issues of fact and law, which range from particular concerns as to the evidence upon which the Tribunal's decision was based to broader complaints as to the 'culture' in operation at the Tribunal.
I will say something about those broader complaints first. It must be acknowledged, in light of the material provided by Ms T as background to the proposed appeal, that Ms T has developed a good deal of mistrust of the Tribunal and other agencies with which she has dealt over a number of years in relation to GG.
Those dealings stretch back to 2013 when guardianship and administration orders were made in relation to GG. Those orders prompted a significant number of applications before the Tribunal, ultimately resulting in the orders being revoked by the Tribunal in 2016 (in GAA 2796 of 2016).
It is apparent from the record that the process itself was causing GG distress. In that regard, at the time that the 2013 orders were revoked, Deputy President Sharp said:[10]
We're not sure about whether or not [GG] needs a guardian. Again, I don't think we need to go there because our view is that whether or not he needs a guardian, the conflict and the distress that it's causing him to have a guardian is outweighing any need that might be fixed as a result of it.
So the view is that we're not going to make any finding about whether or not he's a person who should have a guardian. We're not going to make any finding about whether he needs a guardian because if he does need a guardian it's not helped by the conflict that it causes in his life by having a guardian.
[10] Hearing ts 87 (22/09/2016).
As a consequence of the various proceedings in the Tribunal, Ms T now contends that the Tribunal has 'continually acted in 'Bad Faith''[11] and that its officers wrongfully use their positions for improper purposes. It goes without saying that that is an extremely serious allegation to make and one which the clearest of evidence would be required to satisfy a Court that it was the case.[12] On the basis of the material before the Tribunal on 2 and 3 July 2020 (including the transcript of that hearing), I am not satisfied that there is a prima facie case justifying an appeal on that basis.
[11] Applicant's Submissions dated 24 February 2021 [5(b)].
[12] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
This is not to say that Ms T's sense of grievance is not genuine. As Deputy President Sharp recognised in the passage I have just quoted, proceedings under the Act concern deeply personal matters that affect not only the freedom and autonomy of those subject to the orders but their loved ones as well. For someone in Ms T's position, it is understandable that a series of decisions made over the course of many years, each of which (individually) may have been made in good faith according to the decision maker's best efforts, might be perceived, as a whole, as the 'system' working against her and GG.
As understandable as that perception might be, objectively, in my view, the reality is otherwise. I am not satisfied that there is a prima facie case that the Tribunal carried out the review on 2 and 3 July 2020 otherwise than in good faith and in the best interests of GG.

While, I am not satisfied that there is a prima facie basis for the allegations of bad faith or improper purpose, I have not concluded that Ms T's proposed appeal is wholly without merit. One of the complaints she raises, for example, is that the medical evidence in relation to which the Tribunal relied was mostly in excess of 12 years old. There was indeed a paucity of recent medical evidence before the Tribunal. The only recent report, dated 20 December 2019, was from a general practitioner who had seen GG three times in nine months. That report was on the Tribunal's pro forma medical report form, and while the doctor ticked boxes to the effect that GG had a number of incapacities, he provided no details of them as indicated by the form.
There were also, it must be recognised, a number of reports from allied health workers, such as social workers and occupational therapists. Regrettably, however, those reports do not appear to have resulted from any personal contact with GG.[13] That was, in part due to COVID-19 restrictions. Nevertheless, it did limit the depth of the information that the Tribunal had available to it.
[13] Report of Delegated Guardian dated 18 May 2020.
It is not necessary, however, for me to reach a concluded view as to whether the proposed appeal in this case otherwise has prima facie merit. That is because I am satisfied that leave to appeal the Tribunal's decision should be refused for separate reasons, namely in light of the upcoming review proceedings, which are listed for 29 March 2021.
In that context, Ms T has advised me that GG is still living with her in the same accommodation that they were living in at the time of the hearing before the Tribunal in July 2020. Ms T, who has since married, travels to her husband's farming property every 7 to 10 days, at which time GG's sisters come to the home to keep an eye on him. Ms T said that those arrangements were working well and getting better all the time (my paraphrase).
Ms T advises that the current guardian with the Public Advocate appointed to GG has yet to contact or meet GG. There is no information from the Public Advocate confirming that to be the case or, more importantly, if so, why that is the case. Nevertheless, at least on the basis of her submissions to me, Ms T and her daughters are effectively acting in the role of guardian. This was essentially the position this time last year, before the guardianship order was made.
Indeed, in one of the reports provided to the Tribunal, from a senior investigator advocate, with the office of the Public Advocate dated 6 March 2020, the officer, while recommending the Public Advocate's appointment as guardian, acknowledged that 'such an appointment may make little change in [GG's] actual circumstances'. On the basis, at least, of Ms T's submissions to me that would appear to be so.
Similarly, Ms T advised that the Public Trustee had not met or contacted GG since the making of the orders. The Public Trustee, in its correspondence to the Court, confirmed that that is indeed the case, although its report to the Tribunal states that Ms T has declined to provide GG's contact details or provide suitable information in relation to his circumstances. Ms T made submissions to me as to difficulties she had in dealing with the Public Trustee in relation to GG's budget.
These are all matters that can properly be raised before the Tribunal in the upcoming review. They are relevant, in particular, to the question of whether GG is in need of a guardian or administrator. If the Tribunal is satisfied, for example, that GG is indeed living safely and effectively with the support of his family and without the active engagement of either the Public Trustee or the Public Advocate, that may well be a reasonable basis for concluding that he is not in need of a guardian or an administrator.
I express no concluded view about those matters. They are, however, legitimate considerations for the Tribunal to take into account and, more importantly, they would not be relevant to the appeal to this Court from the orders made in July 2020. Generally speaking, an appeal to this Court looks 'backwards' to the identification of error by the Tribunal, whereas a review under in pt 7 of the Act looks 'forward' into the future and what is in the best interests of GG.
For these reasons, particularly given that the review is imminent, it represents a preferable course of action than an appeal to this Court, at the present time. In that respect this case has some similarities with SH v Chief Executive Officer of Department of Communities. As in that case, the review is imminent. It is in GG's best interests that the consideration of whether he requires a guardian or administrator be based on the most up-to-date information available. It is not in GG's best interests for an appeal to this Court to be conducted in parallel with the review proceedings. Indeed, even if the appeal was successful, it may be that the appropriate order would be to return the matter to the Tribunal for reconsideration in any event.
It is clear that the multiplication of proceedings is not in GG's interests. Nor is it in Ms T's interests. As I have impressed upon Ms T today, the best way to attend to GG's best interests is to focus on the future and to participate in the proceedings before the Tribunal in a meaningful way, so as to provide the Tribunal with the opportunity to carefully consider all of the issues under the Act with as much relevant information as possible.
At the hearing today, Ms T acknowledged that the upcoming review was a preferable course to the appeal, although she expressed concern as to whether the review would go ahead on the scheduled date. She raised the prospect that I might adjourn this hearing until after the review. While I have considered that submission, in my view, it is preferable that I deal with this matter today, stating my reasons why it is in the interests of justice for the review to proceed rather than the appeal.
For these reasons, I am not satisfied that it is in the interests of justice that there be a grant of leave to appeal. Leave to appeal is refused.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
11 MARCH 2021