T v The Executive Officer of the State Administrative Tribunal of Western Australia

[2016] WASC 207

T -v- THE EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA [2016] WASC 207

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 207
Published:	06/07/2016
Case No:	GDA:1/2016	Heard:	22 APRIL 2016
Coram:	CORBOY J	Delivered:	22/04/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	T THE EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Catchwords:	Guardianship and administration Review of determinations made by a single member of the State Administrative Tribunal Review to be conducted by the Full Tribunal of the State Administrative Tribunal Leave to appeal refused
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : T -v- THE EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA [2016] WASC 207 CORAM : CORBOY J HEARD : 22 APRIL 2016 DELIVERED : 22 APRIL 2016 PUBLISHED : 6 JULY 2016 FILE NO/S : GDA 1 of 2016 BETWEEN : T

Applicant

AND

THE EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : MR J MANSVELD (MEMBER)

File No : GAA 4777 of 2015

Catchwords:

Guardianship and administration - Review of determinations made by a single member of the State Administrative Tribunal - Review to be conducted by the Full Tribunal of the State Administrative Tribunal - Leave to appeal refused

Legislation:

Nil

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : No appearance

Solicitors:

Applicant : In person
Respondent : No appearance

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

Nil

CORBOY J:

The background to the appeal

1 On 8 April 2013, the State Administrative Tribunal (the Tribunal) made guardianship and administration orders under the Guardianship and Administration Act 1990 (WA) (the Act) in respect of GG. The order was made for a period of 12 months, with the Public Advocate appointed as guardian.

2 The order was subsequently reviewed and extended for a period of five years. However, GG's father applied for a review of the order in May 2014. The Tribunal made an order in March 2015 confirming the appointment of the Public Advocate as a limited guardian for GG.

3 A further application for a review of the guardianship and administration order was made by the appellant, who is GG's mother. On 9 November 2015, the Tribunal made various declarations as to the capacity and needs of GG and confirmed the appointment of the Public Advocate as his limited guardian. The declarations and orders were made by a single member of the Tribunal.

4 The appellant commenced an appeal in this court against the declarations and orders made by the Tribunal. A hearing was subsequently held at which I refused the appellant leave to appeal and dismissed the appeal. The appellant requested that I publish my reasons for refusing leave.

The Act

5 Sections 43 and 64 of the Act provide that the Tribunal may make guardianship and/or administration orders. Part 7 of the Act provides for a review of guardianship and administration orders. The making of, or refusal to make, an order on a review is a 'determination' for the purpose of the Act: see the definition of 'determination' in s 3.

6 Section 17A(1) of the Act provides that where a single member makes a determination, a party who is aggrieved by the determination may request the President of the Tribunal to arrange for a Full Tribunal to review the determination and the President must comply with the request. The reference to the 'Full Tribunal' is to the Tribunal constituted so as to consist of the President or a Deputy President and two other members.

7 An application for a review of a determination by a single member of the Tribunal is to be made within 28 days of the date of the determination or, if the Full Tribunal considers there is good reason for making the request outside that time, such further time as the Full Tribunal allows: s 17A(2). Section 19 of the Act provides that, by leave, an appeal lies to a single judge of the Supreme Court from a determination of the Tribunal when constituted by three members not including the President, or the Court of Appeal from a determination of the Tribunal constituted by three members including the President, but otherwise there is no appeal from a determination of the Tribunal.

8 In short, an appeal from a determination under the Act by a single member of the Tribunal must be directed to the Full Tribunal. This court only has jurisdiction to hear and determine an appeal under the Act from the Full Tribunal.

The appellant's appeal to this court

9 The appellant made an affidavit in support of her application for leave to appeal in this court. She attached to her affidavit a letter received from the Tribunal which enclosed a copy of the declarations and orders made by the Tribunal on 9 November 2015 and which advised that, 'You may have a right under the Guardianship and Administration Act 1990 to have this determination reviewed by State Administrative Tribunal or by the Supreme Court'.

10 The appellant stated at the leave hearing that she had interpreted the letter to mean that she could have the determination of the Tribunal (the orders made by the Tribunal on 9 November 2015) reviewed by this court at her election. She was aware of the effect of s 17A of the Act.

Reasons

11 The Act stipulates that the appellant could only seek a review in the Full Tribunal of the orders made by the Tribunal on 9 November 2015 and that this court has no jurisdiction to review the Tribunal's determination. Accordingly, leave to appeal was refused and the appeal was dismissed.

12 It was apparent that the outcome of the Tribunal's determination was a matter that had caused, and was continuing to cause, the appellant considerable distress. Without commenting on the merits of her position, it is unfortunate that the appellant lost time in pursuing a review of the Tribunal's determination by commencing an appeal in this court that was futile. I am aware of at least one other occasion in which an appeal has been recently commenced in this court from a determination under the Act made by a single member of the Tribunal. Although it is a matter for the Tribunal, it might assist unrepresented parties in guardianship and administration matters if two standard letters could be utilised to advise on the right of review following a determination - one letter where the determination was made by the Tribunal constituted by a single member and another letter where the determination was made by the Full Tribunal.