PJB [2008] WASAT 190 (22 August 2008)

Guardianship and Administration Act 1990 (WA), s 4(2)(a), s 112

State Administrative Tribunal Act 2004 (WA), s 13

1 An application was made by CJS, son of PJB, to have access to a copy of her will lodged with the Tribunal in 2006 in respect of an application for guardianship for PJB.

2 The will had been provided by the former solicitors for PJB upon a request routinely made at the time by the Tribunal when an application was made under the Guardianship and Administration Act 1990 (WA). The practice of requesting a copy of the will of a person for whom an application has been made has now ceased.

3 The former solicitors for PJB had submitted at the time of the guardianship application that the will was being provided to the Tribunal as a privileged and confidential document and should not be made public.

4 CJS made the application in his role as attorney for PJB under an enduring power of attorney executed by her in 2005.

5 The application was considered by the Tribunal under s 112(4) of the Guardianship and Administration Act 1990.

6 CJS submitted that he was entitled to have access to the will in his authority as attorney for PJB. He also expressed his concerns that PJB's estate was not being managed in her best interests and required protection. He wanted access to the will as it would assist him in ascertaining PJB's interests and intentions with respect to her estate.

7 The former solicitors for PJB submitted that the application to have access to the will was not for the purposes of any application then before the Tribunal and s 112(4) could not apply. It was also submitted that a will was not relevant to the exercise of the powers of an attorney under an enduring power of attorney and therefore there was no basis for its disclosure.

8 The Tribunal decided not to allow CJS access to the will of PJB under s 112(4) of the Guardianship and Administration Act 1990. It was therefore not necessary to consider whether an attorney is entitled, by virtue of their role as attorney, to such a document.

9 The Tribunal relied upon the decision of the Full Board of the former Guardianship and Administration Board in MB [2004] WAGAB 25.

10 The Tribunal found that there were competing interests and tensions inherent in the operation of s 112(4). It was a matter of judgment in any particular case as to how the discretion available to the Tribunal under s 112(4) should be exercised.

11 The Tribunal decided that what must be preserved was the confidence of the public that in providing the Tribunal with information that might be relevant to proceedings under the Guardianship and Administration Act 1990, the information would not routinely find its way into other arenas of conflict.

12 Whether or not CJS, as attorney for PJB, was entitled to her will, the Tribunal was not the appropriate place to seek access to it.

13 These reasons relate to an application under s 112(4) of the Guardianship and Administration Act 1990 (WA) (GA Act).

14 The application has been made by CJS in his role as attorney for his mother, PJB, under an enduring power of attorney executed by her on 29 September 2005.

15 CJS is seeking access to and a copy of PJB's will lodged with the Tribunal in respect of an application for guardianship made by FHB, the spouse of PJB, in February 2006. The Tribunal appointed FHB as the plenary guardian of PJB on 13 March 2006 (see FHB and PJB [2006] WASAT 194).

16 At the time of the guardianship hearing it was the routine practice of the Tribunal to request a copy of the will of the person for whom an application had been made under the GA Act. This practice has been discontinued.

17 The will of PJB was provided to the Tribunal by her then lawyers, Pye and Quartermaine, who requested that the will be treated as a privileged document and that they be heard in respect of any future request to access the document.

18 Applications made pursuant to s 112(4) of the GA Act can be heard ex parte or the Tribunal can decide who is entitled to be heard (s 112(5)). When the application was made by CJS to have access to the will of PJB, the Tribunal wrote to Pye and Quartermaine giving them the opportunity to make submissions on the application.

19 Written submissions were received from Pye and Quartermaine and Taylor Linfoot Holmes acting on instructions from CJS as attorney for PJB. I decided, and the parties agreed, that the application be heard on the documents.

(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.

20 CJS states that a copy of the will of PJB was originally lodged with the Tribunal by Pye and Quartermaine under their then authority (if any) as lawyers for PJB. As the attorney for PJB, he submits that he has the right to view her will just as she has that right.

21 CJS contends that the scope of s 112(4) of the GA Act enables the Tribunal to allow appropriate persons to view the will of PJB. The will was lodged for the purposes of an application (the guardianship application in 2006) and this being the case the Tribunal has the authority and discretion to authorise a person to inspect it.

22 It is submitted that s 112(1) also authorises the Tribunal to allow the will of PJB to be inspected in so far as it allows a represented person (which PJB is by virtue of her being the subject of a guardianship order), to inspect any document or material lodged with or held by the Tribunal for the purposes of any application in respect of that person unless the Tribunal otherwise orders.

23 It is further submitted that the Tribunal should exercise its discretion to allow inspection of PJB's will because of concerns about what might have happened to PJB's estate. These concerns are summarised as follows:

[FHB] has control of the dealings, and the information and the financial statements concerning [PJB]'s estate (her interests in the family companies, trusts and superannuation funds). Pye and Quartermaine were the solicitors for [PJB], and EKS Solutions were and remain accountants for [PJB]. Pye and Quartermaine now act only for [FHB] and are not providing information about those matters. EKS Solutions are not providing the information because of their relationship with [FHB].

Some of the financial dealing and information which is known to [CJS] and us [the legal representative], as set out in our letter of 15 January 2008, suggests that significant financial transactions may have been effected, concerning the estate of [PJB], or may be in train, which may be against [PJB]'s interests and wishes.

[PJB]'s attorney should view her will, as it may assist him in ascertaining her interests and intentions with respect to her estate.

24 The letter of 15 January 2008 referred to details, amongst other things, the understanding of CJS about a private superannuation fund of which PJB was a member (and supposedly FHB as the only other member). This fund is said to represent the accumulation of assets of PJB and FHB over a long period of their marriage. PJB's entitlement is reported to have been declared at $18,578 and that amount was paid to her on or before 30 June 2006. She is said to have been removed as a member of the fund at that date. The financial statements of the fund at that time show the book value of the assets to be around $1.1 million and it is understood that the balance of those assets fell into the ownership of FHB as the remaining member. FHB is said to have been in control of the transaction(s) and that no party was independently involved to protect the interests of PJB. CJS was not involved even though he holds the enduring power of attorney.

25 CJS submits that he needs to know the contents of the will:

to give effect to the intention of [PJB] with respect to her estate. It may be that she has made bequests in her estate which may be thwarted if steps are not taken to protect her estate from dissipation or adverse manipulation.

26 In further support of his application CJS refers to a publication of the Department of Attorney General of Western Australia, through the Office of the Public Advocate, titled "A Guide to Enduring Power of Attorney in Western Australia."

27 The guide makes statements, amongst other things, about the obligations and powers of an attorney and the management of the donor's estate. The Public Advocate identifies a number of factors that may affect decision making by the attorney including "arrangements made by the donor prior to the loss of capacity, for example, the terms of the donor's will." (page 12 of the guide)

28 It is submitted that the source of power of the Tribunal to allow inspection or access to the will of PJB is contained in s 112(4) and (5) of the GA Act. To enliven that authority the inspection of access must be "for the purposes of any application." It is contended that there is presently no application before the Tribunal and therefore the jurisdiction of the Tribunal is not enlivened.

29 The will, when lodged with the Tribunal in 2006 is said not to have been relevant to the proceedings then before the Tribunal (the application for guardianship) and it is submitted that there are not any discernable circumstance in which disclosure of PJB's will is, or could be, relevant to the issues before the Tribunal.

30 It is further submitted that, in any case, the will is not relevant to the exercise by an attorney of the powers conferred by an enduring power of attorney. They say:

On the contrary, it would be an abrogation of the proper exercise of powers under an Enduring Power of Attorney were the donee of the power to be motivated by provisions made in the Will for the distribution of the donor's estate following the donee's [sic] death.

31 It is submitted that a will is a privileged and confidential document; no interest of any kind is created or conferred by its provisions except upon the death of a testator with the will unrevoked. A will cannot be made, altered or revoked by an administrator on behalf of a represented person ("DDM" File No 02/0352; Ex parte The Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475 at [58] and [70]-[75]).

32 There is, therefore, no basis for the disclosure of the will to CJS and that if he wishes pursue obtaining a copy of the will, he should be required to do so by other means.

33 There are essentially two questions before the Tribunal. Firstly, does CJS in his role as attorney for PJB under an enduring power of attorney, have a right to her will. Secondly, if he does have that right, should the Tribunal allow him, in its discretion, to inspect or otherwise have access to a copy of her will lodged with the Tribunal in respect of proceedings that have been determined (the guardianship application in 2006).

34 I have decided that even if the answer to question one is in the affirmative, I would not allow inspection or access under the second question. It is therefore not necessary to consider the law as it applies to the first question. My reasons are as follows.

35 The scope of s 112 of the GA Act was considered by the Full Board of the Guardianship and Administration Board in MB [2004] WAGAB 25, (Justice ML Barker, now President of the Tribunal, presiding). I adopt the reasoning of the Full Board.

36 The Tribunal took over the functions of the Guardianship and Administration Board in January 2005 (s 13 of the State Administrative Tribunal Act 2004).

37 The Tribunal's power to make the order sought is found in s 112(4) of the GA Act (MB at par [59] and [60]), not in s 112(1) as submitted by CJS because as the Full Board stated at par [39]:

... [that] right ... is exercisable in the course of pending proceedings and is no longer relevant once proceedings have been determined and a matter is not subject to review or appeal. It is a right given to facilitate a proper hearing of an application before the Board.

38 I do not accept the submission made by Pye and Quartermaine that s 112(4) is not enlivened unless there is an application pending before the Tribunal. There is nothing in the particular words of that section or in the definition of "application" in the GA Act that limits its scope in that way. Section 112(4) must also be read in relation to s 112(1) and (2) (see MB at par [63] - [65]).

39 The Full Board stated the general policy underpinnings of the operation of s 112 at [34] and [35]:

The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Board are limited. This is to be expected in the administration of an Act that provides for the guardianship of adults who need assistance in their personal affairs and the administration of the estate of persons who need assistance in their financial affairs ...Documents and other materials held by the Board very often go to matters that are highly confidential in respect of the health and safety of the person who may be in need of a guardianship order. In those circumstances it is to be expected that only a limited class of persons would ordinarily be entitled to inspect documents held by the Board.

...

... As observed by the Board on an earlier occasion, the provisions of s 112 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; and secondly, the public interest in the integrity of the Board processes which relies on the ability to obtain sensitive information from a variety of sources: see Re MM (2001) 28 SR(WA) 320.

40 In respect particularly to s 112(4), the Full Board stated at [59] and [60]:

We agree with the observation of the Board in Re MM (supra), at 332, that s 112(4) provides the Board with a broad discretion on the application of any person ... to allow inspection of or access to documents lodged with or held by the Board for the purposes of any application.

We also agree with the further expression of opinion of the Board in Re MM, [supra] at 332, that s 112(4) is not limited in its terms and, in an appropriate case, may include inspection or access to relevant documents or materials for purposes other than proceedings before the Board, although the circumstances in which the Board would ordinarily consider exercising this power may be considered limited. As the Board said in Re MM, at 332:

'... given the sensitive and confidential nature of much of the material held by this Board, we are of the view that where an applicant requests the Board to exercise its discretion under s 112(4) for purposes not related to proceedings before the Board, he or she must provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed (see generally DeHass v Murcia and Associates, Supreme Court of Western Australia Library No 980633, per Templeman J.) It is not sufficient to rely on a general desire to be informed.'

41 The Full Board considered circumstances when the discretion under s 112(4) might be exercised: at [66] and [67]:

... 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 purpose 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.

What is clear, is that s 112(4) empowers the Board, if it forms the view that an order permitting inspection or access to relevant documents and materials is appropriate in the circumstances of the application, to permit that inspection to occur. The Board's discretion to allow or reject an application is very wide. It is for the Board in every case to decide if there are very good reasons to permit inspection or access having regard to the facts and circumstances raised in the application before it. In some cases, the exercise of the discretion may be constrained by the principle expressed in s 4(2)(a) of the Act, namely that in the performance of its functions the 'primary concern of the Board shall be the best interests of any represented person, or of a person in respect of whom an application is made.'

42 I accept that the will would be useful in CJS's role as attorney in managing the estate of PJB, to enable him to take into consideration particular bequests (if any) that she might wish to make upon her death.

43 However, whatever the merits of the submission that CJS is entitled to the will of PJB as of right and by virtue of his concerns at the state of PJB's estate, I am not persuaded (even if he is entitled to the will) that he should have access to a copy of the document by way of the provisions of the GA Act.

44 As MB made clear, there are competing interests and tensions inherent in the operation of s 112(4) of the GA Act. It is a matter of judgment in any particular case as to how the discretion available to the Tribunal under s 112(4) should be exercised.

45 One such tension that arises is that between the best interests of a represented person (or person for whom an application has been made) and the public interest in the integrity of the Tribunal's processes which relies on the ability to obtain sensitive information from a variety of sources.

46 I find on balance that the application by CJS under s 112(4) should not succeed. The Tribunal has a copy of a will of PJB that was provided in respect of an application for guardianship heard in 2006. The will was requested as part of a routine administrative process of the Tribunal that has since been ceased. The will was provided by Pye and Quartermaine on their understanding at least that it not be made public. CJS, as a party to the application for guardianship for PJB, did not at the time seek to inspect the will for the purposes of that application.

47 I am satisfied in this case that CJS should not have access to the copy of PJB's will held by the Tribunal. What must be preserved is the confidence of the public that in providing the Tribunal with information that might be relevant to proceedings under the GA Act, the information will not routinely find its way into other arenas of conflict.

48 Whether or not CJS, as attorney for PJB, is entitled to her will, the Tribunal is not the appropriate place to seek access to it.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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