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[2011] WASAT 4
General information, not legal advice.
State Administrative Tribunal (WA)
2011-01-13
Judge J
Original judgment source is linked above.
Guardianship and administration - Access to documents or material held by the Tribunal - Meaning of proceeding - Meaning of application - Proceeding ends when final decision made disposing of the matter raised in the application - Conditional entitlement of a represented person (or person for whom an application is made) to access documents held by the Tribunal for the purposes of any application in respect of the person including a general right to be informed - Conditional entitlement of any other party to any proceedings to documents held by the Tribunal for the purpose of those proceedings - Any other person has no anticipatory entitlement to documents held by the Tribunal - Cogent reason to be given if access to documents is sought for a purpose other than a proceeding - Application for access to documents held by the Tribunal to be made under s 112(4) of the Guardianship and Administration Act 1990 (WA)
Freedom of Information Act 1992 (WA), Sch 1, Glossary s 1, s 3, s 5
Guardianship and Administration Act 1990 (WA), s 3, s 4(1), s 4(2), s 4(2)(a), s 16(4), s 17A, s 17A(2), s 17B(g), s 26, s 31, s 40, s 41, s 41(1)(v), s 60 Pt 7, s 84, s 85, s 86, s 89(1)(g), s 89(2)(g), s 90, s 97(b)(i), s 112, s 112(1), s 112(2), s 112(3), s 112(4), s 112(4)(a), s 112(4)(b), s 113, Sch 1 Pt B cl 11, Sch 1 Pt B cl 12, Sch 1 Pt B cl 13
State Administrative (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 416, s 466
State Administrative Tribunal Rules 2004 (WA), r 5
BMD and KWD [2008] WASAT 127
De Hass v Murcia and Associates (unreported, WASC, Library No 980633, 14 September 1998)
Forrest v Kelly [1991] FCA 591; (1991) 32 FCR 558; 105 ALR 573
Re MM (2001) 28 SR (WA) 320
1 The applicant, a son of the represented person, requested access to a report of the Public Trustee that had been before the Tribunal in a hearing to review an administration order made for the represented person.
2 The Public Trustee and the represented person's spouse had been appointed the administrators of the represented person's estate. The order was to be reviewed in 12 months.
3 The administration order and the request for access to the Public Trustee's report were made pursuant to the provisions of the Guardianship and Administration Act 1990 (WA).
4 The applicant had made the request after the order had been reviewed and a new order made.
5 The request for access was heard by a single member of the Tribunal and refused.
6 The applicant sought a review of that decision by the Full Tribunal.
7 The applicant submitted that as a party to the review proceedings, he had a general right to inform himself of the documents held by the Tribunal in respect to the represented person. He argued that because the order made by the Tribunal was subject to a review, the proceedings did not end when the order was made but remained open. This, he said, gave him an entitlement under the relevant legislation, to have access to the report of the Public Trustee.
8 The applicant said that he wanted access to the Public Trustee's report so that he could obtain legal advice in what he considered to be in the represented person's best interests.
9 The Tribunal did not accept the applicant's submission. The Tribunal decided that a proceeding ends when a final decision is made which disposes of the matter raised in an application. In those circumstances, the applicant did not have an entitlement to access but was required to provide cogent reasons that would satisfy the Tribunal that access should be granted.
10 In refusing access to the report of the Public Trustee, the Tribunal took into account the policies that underpin the inspection regime under the legislation; the protection of the privacy of the person for whom the application has been made; and the public interest in the integrity of the Tribunal processes which relies on the ability to obtain sensitive information from a variety of sources.
11 The Tribunal also took into account the principles of the legislation with the primary concern in any proceeding being the best interests of the represented person.
12 This matter comes before the Full Tribunal by way of an application under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act).
13 The application was made out of time, however the Tribunal allowed the application to proceed (s 17A(2) of the GA Act).
14 The applicant is seeking a review of a determination made by a single member of the Tribunal under s 112(4) of the GA Act to refuse access to documents held by the Tribunal in respect of the represented person (KWD).
15 A review under s 17A of the GA Act is heard de novo.
16 The applicant is a son of KWD, an elderly man who is subject to an order for administration made under the GA Act. The most recent order made on 1 October 2009 appointed the Public Trustee as limited administrator of KWD's estate to deal with his interest in and entitlement to monies held in an escrow account. The spouse of KWD was appointed the plenary administrator of the balance of his estate.
17 The order for administration was set for review in 12 months and is to be heard on 27 January 2011.
18 The circumstances which brought the original application for an administration order to the Tribunal in early 2007 have been the subject of an ongoing and bitter dispute between the applicant in particular and members of the family of KWD's spouse (see BMD and KWD [2008] WASAT 127).
(1) A represented person, a person in respect of whom an application under this Act is made or a person representing any such person in any proceedings commenced under this Act is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to -
(a) any document or material lodged with or held by the Tribunal for the purposes of any application in respect of that person;
(b) any accounts submitted under section 80 by the administrator of the estate of that person.
(2) Any other party to any proceedings commenced under this Act, or a person representing any such party, is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purpose of those proceedings, other than a document or material that is or contains a medical opinion not being an opinion concerning that party.
(3) Except as provided in this section, no person (not being a member of the State Administrative Tribunal or a member of staff of the Tribunal) shall, unless he is authorised to do so by order of the Tribunal, inspect or otherwise have access to a document or material lodged with or held by the Tribunal for the purposes of any application, or to any accounts submitted under section 80.
(4) 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.
(5) An application under subsection (4) may be made ex parte or the State Administrative Tribunal may give directions as to the persons to whom notice of the application shall be given and who shall be entitled to be heard.
The original application under s 112(4) of the GA Act
20 By way of letter dated 11 November 2009, the applicant requested a copy of a report of the Public Trustee referred to in a hearing held on 1 October 2009 to review an order for the administration of the estate of KWD. His reason for seeking access to that document was to ' ... obtain legal advice with respect to what I believe would be in the best interests of the represented person i.e. my Father'.
21 The request was accepted by the Tribunal as an application under s 112(4) of the GA Act and was heard on the papers by a single member of the Tribunal.
22 On 11 February 2010, the member refused the applicant access to the Public Trustee's report.
23 In the reasons for his decision, the member referred to the earlier decisions of Re MM (2001) 28 SR (WA) 320 (Re MM) and MB [2004] WAGAB 25 (MB).
24 Re MM and MB are decisions of the Full Board of the former Guardianship and Administration Board (Board).
25 The Tribunal took over most of the functions of the Board in January 2005 (see the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (Conferral Act)).
26 The reasoning in Re MM and MB referred to in the member's decision, although not binding on the Tribunal, has been followed in decisions regarding access to documents lodged with or held by the Tribunal under the GA Act.
27 Re MM concerned a periodic review of guardianship and administration orders under s 84 of the GA Act. Prior to the hearing of that matter, the legal representative of MM sought and was given copies of documents held by the Board for the purposes of the review proceedings, pursuant to the entitlement of the represented person to access provided for in s 112(1) of the GA Act.
28 The legal representative also sought copies of the documents for the purposes of her representation of MM at proceedings before the Mental Health Review Board and to retain them permanently.
29 After noting that 'inspection' and 'access' in s 112(1) of the GA Act does not necessarily include an entitlement to copies of the documents, the Full Board said, at [331] and [332]:
... We also note that we are of the view that the entitlement to inspection under s 112(1) applies only for purposes related to proceedings before this Board.
30 The Full Board took the view that the request by MM for documents held by the Board to be used in her Mental Health Review Board proceedings should be considered under s 112(4) of the GA Act. It said, at [332]:
Under s 112(4) the Board has a broad discretion on application by any person or on its own initiative to allow inspection or access to documents or to withhold access to those documents. In the view of the Board, subsection (4) is not limited in its terms and in the appropriate case may include inspection or access to documents for purposes other than proceedings before the Board ...
31 In determining the circumstances in which access might be given under s 112(4), the Full Board considered s 112 in the context of the whole of the GA Act, including the relevant confidentiality provisions (s 113 and Sch 1 Pt B cl 12). It said at [332]:
In the Board's view, these provisions reinforce two important policies[;] firstly, the protection of the privacy of the person involved in the proceedings before the Board, and in particular a proposed represented person, or a represented person [a person for whom a guardianship order and/or administration order is in force], and, secondly, the public interest in the integrity of the Board's processes which relies on the ability to obtain sensitive information from a variety of sources.
32 Citing Templeman J in De Hass v Murcia and Associates (unreported, WASC, Library No 980633, 14 September 1998) (De Hass v Murcia and Associates), the Full Board said at [332] that an application under s 112(4) of the GA Act would need to demonstrate very cogent reasons and a particular need for access to documents (not just a general desire to be informed) before the Board could consider exercising its discretion in the applicants favour.
33 MB concerned a review under s 17A of the GA Act of a decision by a single member of the Board not to grant access to documents and materials to MB shortly after the death of his mother who had been the subject of guardianship and administration orders.
34 In MB, the Full Board agreed with Re MM that s 112(1) of the GA Act relates to proceedings before the Board (now the Tribunal), but further restricts that entitlement to pending proceedings, which it defines at [63] as:
... pending, not determined or not the subject of review or appeal proceedings under the Act ...
35 The entitlement in s 112(2) of the GA Act is similarly expressed as relating to pending proceedings at [55].
36 The purpose of s 112(1) and s 112(2) of the GA Act is said to be designed to facilitate a proper hearing of an application before the Tribunal (MB at [55]).
37 The Full Board noted that the entitlement in s 112(1) and s 112(2) of the GA Act is not unlimited, but subject to the Tribunal ordering otherwise. For example, a party's right to access might, in the appropriate case, be limited to the nature of their interest in the proceedings (MB at [39] and [54]).
38 The Full Board also noted that the exception in s 112(2) in respect of medical opinions emphasises the privacy concerns of the GA Act. The Full Board agreed with the view expressed in Re MM that s 112 of the GA Act reinforces the policies of the protection of the privacy of the person involved in the proceedings and the public interest in the Tribunal's ability to obtain highly sensitive information. Section 112(3) of the GA Act is said to further strengthen the notion that the right to access is limited by making it an offence for access to take place except as provided in s 112 of the GA Act and authorised by order of the Tribunal (see above and MB at [35] and [57]).
39 The Full Board agreed with Re MM in that s 112(4) of the GA Act is not to be limited in its terms and can apply to requests for access to documents for purposes other than proceedings before the Tribunal.
40 Access under s 112(4) is expressed by reference to 'any application' and at the time of the decision in MB, 'application' was defined by s 3 of the GA Act to mean:
An application to the Board under this Act, and includes a review under Part 7 which is initiated by the Board on its own motion.
41 The Full Board held that nothing in the definition of application suggests the application must be one that remains pending. It would include applications previously made and determined (MB at [63] - [65]).
42 In deciding that the Tribunal has a wide discretion to allow access under s 112(4) of the GA Act, the Full Board said, at [66] in MB:
Indeed, we think there are good reasons, relating to good public administration, why the Board's power to grant access to relevant documents and materials under s 112(4) should not be construed narrowly. It is possible to envisage a number of circumstances in which, for example, persons charged by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with and are held by the Board for the purposes of an application. The Board should be able to determine on an application-by-application basis whether the request for access by a person should be granted. But as the Board said in Re MM (supra), the reasons advanced in support of a request for access under s 112(4) will need to be cogent and be justified on a 'need to know' basis.
43 The Full Board decided that the application for inspection and access stood to be considered under s 112(4) of the GA Act because the proceedings concerning MB's mother were no longer pending and MB was therefore unable to rely upon s 112(2) of the GA Act (MB at [56]).
44 In the present case, the applicant submits that the scheme of s 112 of the GA Act is to allow a represented person or a person for whom an application is made to have almost unlimited access to documents that concern them (s 112(1)). This is based on the principle that the person should have a right to know what information an agency holds about him or her. Additionally, any other party should be given sufficient access to engage in the proceedings but that access might be limited to exclude certain personal information, for example, medical information, about the person (s 112(2)). Finally, any other person should be further restricted in their access to documents and this would appear to be covered by the discretion available in 112(4) of the GA Act.
45 The applicant argues that his request for access to the Public Trustee's report should be considered under s 112(2) rather than under s 112(4) of the GA Act.
46 The applicant's case is that the terms 'application' and 'proceedings' are used in s 112 of the GA Act to mean different things. He contends that 'proceedings' is a term of wide import and can include the application, interlocutory matters and reviews or appeals. Where there is a reference to proceedings in s 112 of the GA Act, the applicant submits that the term is to be used broadly to encompass the original application and the subsequent processes of the Tribunal that flow from any order made, and in particular, where the orders are subject to review, those reviews.
47 The applicant submits that the distinction made in MB that s 112(1) and s 112(2) of the GA Act apply in pending proceedings is incorrect.
48 On the applicant's analysis, the proceedings in respect to KWD continue from the original application and the administration order made on 12 January 2007, through any reviews of the order until the order is revoked or KWD dies.
49 The Tribunal initially made an order for administration for KWD on 12 January 2007 which has been the subject of review under s 84 (periodic review initiated by the Tribunal) and s 86 of the GA Act (review initiated by a party). The most recent order was the one made on 1 October 2009 pursuant to s 84 of the GA Act (see above).
50 The applicant says the Public Trustee's report to which he seeks access is relevant to the proceedings in the broad sense. As a party to the proceedings, it is sufficient that he wishes to inform himself for the purposes of those proceedings (so that he is properly informed for any subsequent review). His request for access should not be subject to the need for him to give 'cogent reasons' under s 112(4) of the GA Act but should instead be considered against the conditional entitlement available in s 112(2) of the Act which applies to proceedings. Section 112(4) refers to access to documents in respect to any application, not a proceeding, and should therefore be applied to requests from persons other than parties to a proceeding.
51 The applicant submits in the alternative, that should s 112(4) of the GA Act apply to the applicant's request, then access should be granted, because the purpose for which he is seeking access is to inform himself of the review application that was heard on 1 October 2009. Reference to the Public Trustee's report was made during the course of the hearing and access is required to make proper sense of it. It does not matter that the hearing is concluded.
52 The applicant submits that a proper reading of Re MM is that the need to give 'cogent reasons' applies only to applications for access to documents for purposes other than proceedings commenced under the GA Act. This is consistent, in the applicant's view, with the reference in Re MM to De Hass v Murcia and Associates, which concerned a person other than a party to proceedings seeking access to documents for purposes not related to the proceedings. The Full Board in Re MM did no more than confine the need to give cogent reasons to a situation where access is sought for purposes that are not relevant to the proceedings.
53 For these reasons, the applicant submits that he should not be required to give cogent reasons for access to the Public Trustee's report, because his request for access to the report is related to the application or proceedings, and that is sufficient reason for him to be given access.
54 The decisions in Re MM and MB were made prior to the establishment of the Tribunal under the State Administrative Tribunal Act 2004 (WA) (SAT Act).
55 Under the Conferral Act, aspects of the GA Act were amended (see s 416 to s 466 of the Conferral Act). Relevant to the matter before the Tribunal are the following amendments:
56 The question that arises is whether the SAT Act says anything about the disclosure of documents that impacts on the entitlements of parties and the discretion of the Tribunal to grant or not to grant access under s 112 of the GA Act.
57 In deciding whether any inspection regime established by the SAT Act impacts on the operation of s 112 of the GA Act, regard must be had to s 5 of the SAT Act, which states:
If there is any inconsistency between this Act and an enabling Act, the enabling Act prevails.
58 A decision to grant access under s 112 of the GA Act is one that is made at the discretion of the Tribunal. This is the case whether the person requesting access to documents held by the Tribunal under the GA Act is the person for whom an application has been made (or represented person), other parties to the proceedings or the public at large. To the extent that the relevant provisions of the SAT Act appear to fetter that discretion (see, for example, s 62, s 155, s 160 and s 161 of the SAT Act), they are inconsistent with the operation of s 112 of the GA Act, and therefore s 112 of the Act applies.
59 The Tribunal concludes that it is s 112 of the GA Act that establishes and regulates the inspection regime for applications and proceedings commenced under the GA Act.
60 Section 112 establishes three classes of persons to whom access to documents may be given:
61 The exercise of the discretion in s 112 may be applied differently for the different classes of persons, but all cases require a positive act by the Tribunal to consider a request for access to documents. It is open to the Tribunal to deny access even to a represented person or a person for whom an application is made, because such access is provided subject to the provision that the Tribunal may otherwise order. The Tribunal must decide whether, of all the documents in the possession of the Tribunal, any should be withheld.
62 That being the case, the better view is that an application under s 112(4) is the means by which a request by any party for access to documents must be made. This is because s 112(4) is the provision which gives the Tribunal power to make an order for access by any person (s 112(4)(a)) including an order contemplated by s 112(1) and s 112(2) (s 112(4)(b)). This view is also compatible with the right of a review or appeal which is available from a determination made under s 112(4).
Access to documents in respect to an application or a proceeding
63 It may be that the purpose of s 112(1) and s 112(2) of the GA Act is to alert the Tribunal to two important matters when considering an application made under s 112(4) of the Act to have access to documents. The first is that a person for whom an application is made, or a represented person, has a conditional entitlement to access for the purposes of any application in respect of that person. Secondly, any other party to any proceedings has a conditional entitlement to access to any document for the purpose of those proceedings (except medical opinion).
64 The applicant submits that he has an entitlement to the Public Trustee's report because the term proceedings in s 112 of the GA Act describes an ongoing process for orders that are subject to review that begins with the original order through subsequent reviews. The rationale is that such an order (guardianship or administration), is always subject to review. A party retains an interest and should be allowed to inform themselves from time to time.
65 The Tribunal does not accept this submission of the applicant for the reasons set out below.
66 The Tribunal accepts that the terms application and proceedings are used in s 112 of the GA Act to mean different things.
67 'Application' is defined in the GA Act to mean an application to the Tribunal under that Act (s 3).
68 The GA Act was amended by the Conferral Act to remove the reference to application in respect to the process initiated by the Tribunal by which orders are periodically reviewed under s 84 of the GA Act (the definition of 'application' in s 3 of the SAT Act does not appear to restore that provision). However, to sensibly apply s 112 of the GA Act, it is sufficient to take the position that a review under s 84 of the Act is an application which is the subject of a proceeding (see below).
69 The definition of 'application' in s 3 of the GA Act does not suggest that it must be one that remains pending (MB at [64]).
70 The Tribunal accepts this is the case and further, given the farreaching orders that can be made for a person and the fact that s 112 alone regulates access to documents under the GA Act, it is logical that the person should have access at any time to documents or materials that concern them and not be constrained by the need to have proceedings on foot. This is consistent with the principle that a person is entitled to know what information is being held about them by a body such as the Tribunal, subject of course to the exercise of the Tribunal's discretion.
71 The reference to application in this sense is to ensure the person has the opportunity to be given the fullest access to documents in respect to any application made about them, either applications that are pending or applications that have been determined.
72 There is therefore no need, with respect, to characterise s 112(1) of the GA Act as relating to pending proceedings, as the Full Board decided in MB.
73 The entitlement of any other party is restricted to the proceedings in which they are a party (s 112(2) of the GA Act).
74 This entitlement is not the same as that available to the person for whom the application is made (or the represented person). It is bound with the need to accord the party natural justice (s 32(1) of the SAT Act) and is commensurate with their interest in the proceedings.
75 The Tribunal therefore respectfully agrees with the Full Board in MB that in respect to any other party, s 112(2) of the GA Act refers to access in the context of pending proceedings; that is, proceedings which have not yet been determined.
76 The applicant submits that, in the case where orders are reviewable under the GA Act, the meaning of 'proceeding' includes not only the original application but any subsequent reviews of the orders made.
77 Whilst the meaning of 'proceeding' has been held to extend to include administrative matters, as distinct from legal or judicial matters, it is to the particular legislation that one must turn to ascertain its relevant meaning (Forrest v Kelly [1991] FCA 591; (1991) 32 FCR 558; 105 ALR 573 at [408] and [409]).
78 The extended meaning which the applicant submits could be given to 'proceeding' is not supported by a review of the relevant legislation.
79 To illustrate, 'proceeding' is not defined in either the GA Act or the SAT Act. However, there is nothing in the way in which the words 'proceeding' or 'proceedings' are used in these Acts that would suggest anything else other than a proceeding starts by way of an application and ends by the making of a final order determining the matter the subject of the application (see, for example, s 4(1), s 16(4), s 17B(g), s 26, s 31, s 41(1)(v), s 60, s 89(1)(g), s 89(2)(b), s 97(b)(i) and Sch 1 Pt B cl 11 - cl 13 of the GA Act and the numerous references to proceeding(s) in the SAT Act, particularly those in Pt 4 on the Tribunal's procedures, and s 105 and s 155, together with r 5 of the State Administrative Tribunal Rules 2004 (WA)).
81 Under s 74 of the SAT Act, a decision of the Tribunal has to be given in writing, if, amongst other things, the decision is the 'final decision'. Under s 75 of the SAT Act, the Tribunal is to give a copy of any written decision (which includes a final decision) 'it gives in a proceeding', to each party; each other person who is, under this Act or the enabling Act, entitled to 'notice of the proceeding' or the relevant hearing, or of the decision; and any person prescribed by the rules (there is no person yet so prescribed).
82 In the GA Act, applications for guardianship and administration orders are made under s 40, with the persons who should be given a notice of hearing set out in s 41 of the Act. The orders that are ultimately made either dismiss the application(s) or appoint a guardian and/or an administrator. The orders are the 'final decision' in that they dispose of the matter raised by the application. It appears a new proceeding is commenced when a review of the order takes place either under s 84, s 85 or s 86 of the GA Act. The procedures for review of orders are separately set out in Pt 7 of the GA Act and include the powers of the Tribunal on review (s 90), the persons to whom notice of the review should be given and, relevantly, that the notice for review must include particulars of the 'nature of the proceedings' (s 89(2)(g)).
83 Taking all of the above into consideration, the original application in respect to KWD and any reviews of orders conducted under Pt 7 of the GA Act are distinct and separate proceedings and are to be treated as such when considering applications made under s 112(4) of the Act.
Access to documents other than for the purposes of a proceeding
84 In deciding the construction of s 112, the Tribunal has identified a distinction between those persons who might seek access to documents. The distinction is between the person for whom an application is made (or the represented person); any other party to any proceedings; and, finally, any other person.
85 There is also need to give consideration to a further distinction recognised in Re MM and MB, that being the purpose for which access to documents is sought.
86 The person for whom an application is made (or the represented person) has a conditional entitlement to access any document held by the Tribunal in respect to any application made for them, both as a general right to know and in the conduct of a proceeding.
87 Any other party to a proceeding has a conditional entitlement for access to documents held by the Tribunal for the purposes of that proceeding.
88 The final class of persons (the public at large) has no anticipatory entitlement to inspect or otherwise have access to documents held by the Tribunal for matters under the GA Act.
89 In exercising its discretion to grant access to documents upon an application by any person to use the information in those documents for matters other than a proceeding under the GA Act, the Tribunal should act cautiously.
90 The Tribunal agrees with the Full Board in Re MM (at [65]) that such a consideration would necessarily incorporate a judgment about the particular need for which the access is sought and how persuasive or cogent are the reasons given in the application.
91 In the exercise of its discretion, the Tribunal should give attention to the policies that underpin s 112 of the GA Act as identified in Re MM [at 332]; the protection of the privacy of the person for whom the application has been made and the public interest in the integrity of the Tribunal processes which relies on the ability to obtain sensitive information from a variety of sources.
92 The Tribunal must also observe the principles set out in s 4(2) of the GA Act, with the primary concern in any proceeding being the best interests of any represented person, or of a person in respect of whom an application is made (s 4(2)(a)).
93 The report being sought by the applicant is a report dated 4 September 2009 filed by the Public Trustee with the Tribunal on 7 September 2009. The report was part of the material upon which the Tribunal relied in its decision made on 1 October 2009. The report was discussed at that hearing (T: 14 - 21, 1.10.09).
94 The request by the applicant for access to the report was filed with the Tribunal on 12 November 2009.
95 In respect to the meaning of 'proceeding', the application for access was made at a time when there were no proceedings before the Tribunal. The decision of the Tribunal on 1 October 2009 had determined a review under s 84 of the GA Act and a review of that order had not yet commenced.
96 The Tribunal has decided to refuse the applicant access to the Public Trustee report dated 4 September 2009.
97 A review under s 17A of the GA Act is heard de novo; however, in considering the evidence and submissions, the Tribunal agrees with the member that the applicant has not given a sufficiently cogent reason to warrant access.
98 The report of the Public Trustee formed part of the documents for the s 84 proceedings heard on 1 October 2009. It was at that time available for access by a party to the proceedings (as the applicant was), because it was a document lodged with or held by the Tribunal 'for the purposes of those proceedings' (s 112(2) of the GA Act); however, the applicant did not seek access at that time. A representative of the Public Trustee was present at the hearing to speak to the report. Its contents were discussed in the context of the Public Trustee's evidence and submissions to the Tribunal. The applicant was in a position to question the Public Trustee about the report. After the determination of the Tribunal, the applicant did not seek review of the decision by the Full Tribunal under s 17A of the GA Act.
99 The order for administration made on 1 October 2009 put in place a regime whereby the Public Trustee was given the authority and responsibility to deal with the escrow monies and KWD's spouse was given the authority to manage the balance of his estate. In those circumstances, the administrators were responsible to manage the estate of KWD, the subject of the order.
100 The applicant did not, at the time the request for access was made, have a general right to be informed. That right or entitlement under s 112(2) of the GA Act (conditional though it is), was available to him during the proceedings (to allow him to fully participate in those proceedings) that culminated in the order of 1 October 2009. With the proceedings completed, that need fell away.
101 The applicant's request that access to the report of the Public Trustee be granted to enable him to obtain legal advice that he believed would be in the best interests of KWD is a task that, should it need to be undertaken, would properly be a task for the appointed administrators.
102 The order for administration made on 1 October 2009 is due to be reviewed on 27 January 2011 under s 84 of the GA Act by which the Tribunal can confirm, amend or revoke the order. If the applicant is a party to those proceedings, he will, subject to the Tribunal otherwise ordering, be entitled, upon application under s 112(4) of the GA Act, to inspect or otherwise have access to documents lodged with or held by the Tribunal for the purpose of those proceedings.
I certify that this and the preceding [102] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(1991) 32 FCR 558