Understanding the Serious Harm Test in Defamation Law (yet to apply in WA)

In this blog post, I explore the serious harm test, drawing on the first Australian trial to consider it, Martin v Najem [2022] NSWDC 479, and other relevant cases.

The Serious Harm Test

The serious harm test, as adapted from Section 1 of the UK's Defamation Act 2013, requires plaintiffs to establish that serious harm has been or is likely to be caused by the defamatory statements in question.

As laid out in the case of Newman v Whittington [2022] NSWSC 249, this test aims to discourage cases where the legal costs are disproportionate to the potential damages.

Factors to Consider

In assessing whether serious harm has been or is likely to be caused, the following factors may be considered, as outlined in Martin v Najem [2022] NSWDC 479:

1. The meaning of the words and the gravity of any imputations.

2. The extent of publication.

3. The standing of the defendant.

4. The identity of the recipients and their relationship (if any) with the plaintiff.

5. The circumstances of the plaintiff.

6. The reaction of the recipients.

However, these factors should not be treated as evidence in themselves, but rather as headings under which relevant evidence may be presented.

Proving Serious Harm

Establishing serious harm requires a fact-rich proof of harm that is actually or likely to be serious, as opposed to mere inferences of serious harm. There must be causation between the publication and the serious harm, which may be established by inference, particularly when considering future matters such as the statement's impact on people who will come to know the plaintiff in the future (Napag Trading Ltd v Gedi Gruppo Editoriale SPA [2020] EWHC 3034 (QB)).

Martin v Najem [2022] NSWDC 479

Introduction

This was legal battle between two prominent food influencers.

The plaintiff, known by his social media handle "@Issac_eatsalot", and the defendant built their careers on blogging about food-related issues on Instagram. However, their rivalry took a dark turn, resulting in defamatory comments.

Background

@Issac_eatsalot, a former pastry chef, began his social media career by participating in competitive food eating contests and promoting the venues he visited. He had amassed a significant following on various social media platforms and frequently worked in paid partnerships with venues and businesses. His wife, who was also involved in his food blogging work, had been directly affected by the escalating situation.

The Feud

On April 22, 2022, @Issac_eatsalot was informed by one of his followers that the defendant had published a video about him on Instagram. In the video, the defendant called @Issac_eatsalot a paedophile and a racist. Concerned and offended by the content, @Issac_eatsalot discovered that the defendant had directed his followers to a second Instagram account, where he continued to post defamatory content.

The Impact

The plaintiff's anxiety and distress were exacerbated by the knowledge that the defendant was an Instagram business rival with a relatively substantial following.

The defendant's campaign of abuse continued with several more videos and a direct message threatening to destroy @Issac_eatsalot. This resulted in the plaintiff reporting the publications to the police and seeking medical assistance.

The Legal Battle

The plaintiff commenced legal proceedings in July 2022, seeking damages for the defamatory content posted by the defendant. Since then, @Issac_eatsalot continued to receive negative and derogatory comments on his own Instagram account.

The Findings

In Martin v Najem [2022] NSWDC 479, the court found that the publications in question caused serious harm due to factors such as the extreme nature of the allegations, the manner of publication, the extent of publication, and the ongoing impact on the plaintiff's health and security.

The court also considered the reactions of third parties and the plaintiff's own affidavit detailing the stress and anxiety caused by the publications.

Common Law Qualified Privilege in Defamation: Understanding the Reciprocity of Duty and Interest

Defamation law seeks to balance two competing interests: the protection of an individual's reputation and the freedom of speech.

One of the defences available to a defendant in a defamation case is common law qualified privilege, which arises when there is a reciprocity of duty and interest between the publisher and the recipient of the statement.

This blog post provides a better understanding of common law qualified privilege, focusing on the concept of “interest”, as highlighted in the case of Bolton v Stoltenberg [2018] NSWSC 1518.

The Defence of Qualified Privilege

A communication is protected by common law qualified privilege when the publisher has a legal, social, or moral interest or duty to make a statement on a particular occasion, and the recipient has a corresponding interest or duty to receive it (Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470).

The question of whether common law qualified privilege applies depends on a close scrutiny of the circumstances of each case, the situation of the parties, the relations of all concerned, and the events leading up to and surrounding the publication (Bashford).

As a result, determining whether qualified privilege applies can be challenging and requires a careful analysis of the specific facts of the case.

Reciprocity of Duty and Interest

The concept of reciprocity of duty and interest is essential to the defence of qualified privilege.

To establish this reciprocity, the publisher must demonstrate that they had an interest or duty in making the statement and that the recipient had a corresponding interest or duty in receiving it.

In the case of Visscher v Maritime Union of Australia (No 6), Beech-Jones J rejected a submission that readers of a website operated by the Maritime Union of Australia had a direct or indirect interest in the maritime industry simply because of the nature of the forum. Beech-Jones J emphasized that the defence of common law qualified privilege could not apply to unrestricted publications available to the general public.

Excessive Publication

Even when there is a reciprocity of duty and interest, excessive publication may still defeat the defence of qualified privilege.

Excessive publication occurs when a statement is made available to a broader audience than necessary to satisfy the interest or duty.

In Vakras v Cripps, the Victorian Court of Appeal held that publication to the world at large on general websites could be evidence of excessive publication and thus, not protected by qualified privilege.

Bolton v Stoltenberg [2018] NSWSC 1518

In Bolton v Stoltenberg [2018] NSWSC 1518 the defense of common law qualified privilege was considered by the court.

The case involved a Facebook page called Narri Leaks, which was claimed to be dedicated to dealing with issues of interest to persons within the Narrabri Shire. The defendant, Mr. Stoltenberg, argued that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire and had a reciprocal interest in issues relating to the Narrabri Shire Council.

The court, however, found that the readership of Narri Leaks extended far beyond the residents of the Narrabri Shire Council who were interested in the finances of the Council. The judge cited evidence such as interrogatories provided by Mr. Stoltenberg, Facebook posts made by him, and Facebook activity logs, among other things. The posts themselves contained references to the wide readership of Narri Leaks, and the defendant admitted to having spent money on "boosting" posts all over the state.

As a result, the court concluded that Mr. Stoltenberg had failed to establish that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire with a reciprocal interest in a limited subject matter.

Furthermore, even if the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter, the evidence of publication of the Narri Leaks Facebook page was evidence of excessive publication.

The court also rejected the argument that the matters complained of fell within the special and reciprocal interest identified by Mr. Stoltenberg. While the finances of the Narrabri Shire Council and the appointment of General Managers were important topics in the Narrabri area, the defendant had no duty to attack the plaintiff's reputation. The court concluded that the defense of common law qualified privilege was not applicable in this case.

This case demonstrates that in the digital age, establishing a limited audience for defamatory publications can be challenging, especially when social media platforms are involved. Courts will carefully scrutinize the facts to determine whether a defense of qualified privilege can be upheld. In this case, the court concluded that the readership of the Narri Leaks Facebook page was not limited to residents of the Narrabri Shire with a reciprocal interest in a limited subject matter, and therefore, the defense of qualified privilege was rejected.

Key Take-Aways

• Establishing the defence of qualified privilege in defamation cases requires a close examination of the circumstances surrounding the publication and the interests or duties of the publisher and recipient.

• It is essential to demonstrate a reciprocity of duty and interest and to avoid excessive publication.

• Ultimately, whether qualified privilege applies will depend on the specific facts and context of each case.

Navigating Palliative Care and Hastened Death: A Guide to the Guardianship and Administration Act in Western Australia

In Western Australia, the Guardianship and Administration Act (the GA Act) provides guidance for health professionals when making treatment decisions, particularly in relation to palliative care.

This blog post explores the circumstances under which a health professional may lawfully act in relation to palliative care, despite it hastening the death of the patient, under the GA Act.

I rely on extracts from the legislation and provide references to the relevant sections throughout the article.

Valid Treatment Decisions: Palliative Care and Hastening Death

Section 110ZL of the GA Act provides guidance on the validity of certain treatment decisions made by health professionals.

According to this section, if a health professional:

(a) commences or continues palliative care in relation to a patient; or

(b) does not commence or discontinues any treatment of a patient,

in accordance with a treatment decision that is:

(c) in an advance health directive made by the patient; or

(d) made by the patient’s guardian or enduring guardian or the person responsible for the patient under section 110ZD,

the health professional is considered to have done so in accordance with a valid treatment decision, even if an effect of doing so is to hasten the death of the patient.

Palliative Care Defined

To better understand the context of Section 110ZL, it is important to know what palliative care entails.

According to Section 3(1) of the GA Act, palliative care is defined as a medical, surgical, or nursing procedure directed at relieving a person's pain, discomfort, or distress, but does not include a life-sustaining measure.

Treatment Decisions and Advance Health Directives

Section 110ZL of the GA Act provides that the health professional's actions are considered valid when they act according to a treatment decision:

• specified in an advance health directive or

• made by the patient's guardian or enduring guardian or

• made by the person responsible for the patient under section 110ZD.

An advance health directive, as defined in Section 3(1), refers to a directive made under Part 9B of the GA Act or an instrument recognised as such under section 110ZA.

An enduring guardian, as mentioned in Section 3(1), is the person appointed under an enduring power of guardianship or the persons who are joint enduring guardians under an enduring power of guardianship, including a substitute enduring guardian.

A person responsible for a patient under section 110ZD is explained here.

Key Take-Aways

• In summary, under the GA Act, a health professional in Western Australia may lawfully act in relation to palliative care, even if it hastens the death of the patient, as long as the health professional acts in accordance with a valid treatment decision.

• This decision must be either specified in an advance health directive made by the patient or made by the patient's guardian or enduring guardian.

Treatment Decisions Under the Guardianship and Administration Act in Western Australia

As a guardianship lawyer in Western Australia, I frequently come across questions related to treatment decisions for patients who are unable to make reasonable judgments in respect of their treatment.

In this blog post, I discuss the circumstances in which a “person responsible” may make treatment decisions under the Guardianship and Administration Act 1990 (WA) (GA Act). We will focus on sections 110ZD, 110ZE, 110ZJ, 110ZI, 110ZIA, and the definition of "nearest relative" as per section 3 of the GA Act.

1. Circumstances in which a person responsible may make treatment decisions (Section 110ZD)

According to Section 110ZD of the GA Act, if a patient is unable to make reasonable judgments regarding a proposed treatment, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.

The person responsible for the patient is the first in order of the persons listed in subsection (3) who:

(a) is of full legal capacity;

(b) is reasonably available; and

(c) is willing to make a treatment decision in respect of the treatment.

The persons listed in subsection (3) include:

(a) the patient’s spouse or de facto partner, subject to specific age and living arrangements;

(b) the patient’s nearest relative who maintains a close personal relationship with the patient;

(c) the primary provider of care and support (including emotional support) to the patient, who is not remunerated for providing that care and support; and

(d) any other person who maintains a close personal relationship with the patient, subject to certain age requirements.

Section 110ZD also provides guidance on determining the patient's nearest relative and what constitutes a close personal relationship.

2. Section 110ZD: Determining the Patient's Nearest Relative and Close Personal Relationship

Section 110ZD of the GA Act provides detailed guidance on determining the patient's nearest relative and the criteria for establishing a close personal relationship. This information is crucial for identifying the appropriate person responsible for making treatment decisions on behalf of the patient.

A. Nearest Relative

Subsection (4) of Section 110ZD outlines the order of priority for the patient's nearest relative:

1. The spouse or de facto partner;

2. A child;

3. A parent;

4. A sibling.

For the purpose of this determination, Section 3 of the GA Act provides an extended definition of "nearest relative," which includes additional relatives such as stepchildren, foster parents, grandparents, uncles, aunts, nephews, and nieces. Furthermore, the definition considers brothers and sisters of half-blood and adopted siblings as equal to full-blood siblings.

Under the GA Act, being the eldest child carries specific importance when determining the patient's nearest relative for making treatment decisions. According to the definition of "nearest relative" in Section 3 of the GA Act, if there are two or more relatives of the same degree of relationship (e.g., siblings), the elder or eldest of those relatives shall be preferred regardless of their sex.

B. Close Personal Relationship

Section 110ZD(5) defines a close personal relationship by the following criteria:

1. The person has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and

2. The person takes a genuine interest in the patient's welfare.

By meeting these criteria, a person can be considered to maintain a close personal relationship with the patient, which is a requirement for certain categories of persons listed in subsection (3) (b) and (d)(ii) of Section 110ZD.

3. Priority of treatment decision of the person responsible (Section 110ZE)

The priority to be given to a treatment decision of a person responsible for a patient under Section 110ZD is determined in accordance with Section 110ZJ.

4. Order of priority of persons who may make treatment decisions in relation to a patient (Section 110ZJ)

Section 110ZJ outlines the order of priority for persons who may make treatment decisions in relation to a patient. The priority order is as follows:

(a) a treatment decision made by the patient through an advance health directive;

(b) a treatment decision made by an enduring guardian authorized to make the decision;

(c) a treatment decision made by a guardian authorized to make the decision;

(d) a treatment decision made by the person responsible for the patient under Section 110ZD.

5. Urgent treatment provisions (Sections 110ZI and 110ZIA)

In cases where a patient requires urgent treatment and is unable to make reasonable judgments, Sections 110ZI and 110ZIA provide guidance on when a health professional may provide treatment in the absence of a treatment decision or despite a treatment decision that is inconsistent with providing the treatment.

Urgent Treatment Under the GA Act After Attempted Suicide in Western Australia

As a guardianship lawyer in Western Australia, I frequently deal with cases involving urgent treatment decisions for patients who are unable to make reasonable judgments about their healthcare.

One such situation that requires particular attention is urgent treatment after an attempted suicide.

In this blog post, I discuss the provisions in the Guardianship and Administration Act 1990 (the GA Act) that apply to these circumstances, specifically sections 110ZIA and 110ZD.

Urgent Treatment After Attempted Suicide: Section 110ZIA

Section 110ZIA of the GA Act specifically addresses the situation where a patient requires urgent treatment following an attempted suicide. Under subsection (1), this section applies if:

(a) a patient needs urgent treatment;

(b) the patient is unable to make reasonable judgments in respect of the treatment; and

(c) the health professional who proposes to provide the treatment reasonably suspects that the patient has attempted to commit suicide and needs the treatment as a consequence.

If these conditions are met, subsection (2) allows the health professional to provide the necessary treatment to the patient, despite any:

• advance health directive or

• treatment decision (even if such directive or decision is inconsistent with providing the treatment) made by the patient's:

  • guardian,

  • enduring guardian, or

  • person responsible for the patient under section 110ZD (who such a person is, is explained below).

Circumstances in Which a Person Responsible May Make Treatment Decisions: Section 110ZD

Section 110ZD of the GA Act outlines the circumstances in which a person responsible for a patient may make treatment decisions on their behalf if the patient is unable to make reasonable judgments concerning the proposed treatment.

Subsection (2) sets forth the order of priority for determining the person responsible for the patient, with the first person in the order being the patient's spouse or de facto partner (who has reached 18 years of age and is living with the patient), followed by the patient's nearest relative who maintains a close personal relationship with the patient, the primary provider of care and support to the patient (who is not remunerated for providing such care and support), and any other person who maintains a close personal relationship with the patient.

When making a treatment decision for the patient, the person responsible must act according to their opinion of the best interests of the patient (subsection (8)). A treatment decision made by the person responsible for the patient has the same effect as if the patient had made the decision and were of full legal capacity (subsection (9)).

Key Take-Aways

• In urgent treatment situations following an attempted suicide, the provisions under sections 110ZIA and 110ZD of the GA Act are crucial to ensuring that the patient receives the necessary care while respecting the patient's autonomy to the extent possible.

• Health professionals and those responsible for the patient should be aware of these provisions and their implications in order to make informed decisions about the patient's treatment and care.

Fair Comment in Defamation Law: Understanding the Key Principles

Fair comment is an important defence in defamation cases that serves to protect freedom of speech, allowing people to express their honest opinions on matters of public interest. In this article, we will discuss the key principles of fair comment in defamation law, using the case of Cook v Flaherty [2021] SASC 73 as a reference.

Fair Comment vs. Fact

According to Pryke v Advertiser Newspapers Ltd, a statement can only be considered comment if the facts it is based on are stated or indicated with sufficient clarity. As explained in Channel Seven Adelaide Pty Ltd v Manock, fair comment protects even obstinate, foolish, or offensive statements of opinion, provided certain conditions are met. The key distinction is between comments (such as opinions, inferences, or evaluations) and statements of fact, which affects the viability of the defence.

The Conventional Case of Fair Comment

In Pervan v North Queensland Newspaper Co Ltd, McHugh J described the conventional case of fair comment as one where the basis of the comment appears in the publication, and the reader is able to judge whether the facts justify the comments. The defence is concerned with comments based on facts, and the truth of those facts will affect the viability of the defence.

The Kemsley Situation

The Kemsley situation, as explained in Cook v Flaherty [2021] SASC 73, refers to a type of fair comment where certain forms of conduct are of such a nature as to invite comment. In these cases, it is not necessary for the reader, viewer, or listener to be in a position to form their own opinion, as long as the statements are presented as comments and not as facts.

Notorious Facts

In order for a comment to be considered fair, the facts it is based on must be true or published under privilege. While the facts do not necessarily have to be stated explicitly in the publication, they can be referred to or be considered "notorious," meaning they are well-known or easily ascertainable matters in the public arena.

Fairness and Accuracy

As mentioned in Cook v Flaherty [2021] SASC 73, fairness requires that the comment or opinion be based on facts that are true or published under privilege. Inaccurate or false facts will render a comment unfair, and therefore, not protected by the fair comment defence.

Key Take-Aways

• In summary, the fair comment defence in defamation law is an important aspect of protecting freedom of speech, allowing individuals to express their honest opinions on matters of public interest.

• The key principles of fair comment involve distinguishing between comments and statements of fact, the truth of the underlying facts, and the fairness and accuracy of the comment.

The Role of Mode of Publication in Determining Meaning in Defamation Cases

In defamation law, the mode of publication plays a crucial role in determining what meaning was conveyed to the ordinary reasonable viewer or reader.

This blog post discusses the significance of mode of publication in defamation cases and will refer to relevant case law, including the recent decision in Nassif v Seven Network (Operations) Ltd [2021] FCA 1286.

Mode of Publication

As established in V’landys v ABC, the mode of publication can be a relevant consideration in determining what was conveyed to the ordinary reasonable viewer or reader. This is particularly applicable in cases where the publication is in electronic form, such as television broadcasts.

In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, the court noted that the mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The ordinary reasonable reader is more likely to read a book with greater care than they would a newspaper. Likewise, they may not devote the same level of concentration to every part of a television or radio program as they would to a written article.

However, as noted in V’landys v ABC, television broadcasts are not as transient as they once were, as they are generally made available over the internet and can be replayed. Still, the nature of the medium, including sounds, images, and manner of speech, is relevant in determining what meanings are carried by the publication.

Defamatory Meaning

The principles for determining defamatory meaning have been summarised in several judgments, such as Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 and Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652.

The applicant bears the onus on the balance of probabilities that the alleged defamatory meanings or imputations were conveyed by the publication in question.

The relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person.

This hypothetical individual is assumed to be fair-minded and neither perverse, morbid nor suspicious of mind. They are not a lawyer who examines the publication overzealously but rather someone who views the publication casually and is prone to a degree of "loose thinking."

Each alleged defamatory imputation has to be considered in the context of the entire publication. Striking words or images may stay with the viewer or reader and give them a predisposition or impression that influences all that follows, as stated in V’landys v ABC.

Key Take-Aways

• In defamation cases, the mode of publication plays a significant role in determining what meaning was conveyed to the ordinary reasonable viewer or reader.

• Electronic forms of publication, such as television broadcasts, may involve particular considerations.

Understanding the Grapevine Effect in Defamation Cases

Defamation cases can be complex, as the extent of the damage to the plaintiff's reputation is not always easily quantifiable.

One concept that often arises in these cases is the 'grapevine effect', which acknowledges the potential for defamatory material to spread beyond its original publication through various channels, leading to potentially far-reaching consequences.

In this blog post, I explore the grapevine effect in defamation cases, with a focus on how it can impact damage assessments and the role of social media in its proliferation.

The Grapevine Effect in Defamation

In the case of Brose v Baluskas & Ors (No 6) [2020] QDC 15, the court explained the grapevine effect as "the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published" (Wagner, 269).

This effect can have a significant impact on the plaintiff's reputation, even if the original publication reached a relatively small audience.

The Grapevine Effect and Social Media

The proliferation of social media has made it even easier for defamatory material to spread through the grapevine effect. With just a few clicks or taps on a mobile device, users can share posts that contain defamatory content, potentially reaching a much wider audience than the original publication.

However, it is important to note that the grapevine effect does not automatically arise in all cases involving social media. As noted in Mickle v Farley [2013] NSWDC 295, there must be some evidentiary basis pointing to the grapevine effect's existence before it can be taken into account for the assessment of damages.

Determining the Grapevine Effect's Impact

Assessing the grapevine effect's impact on damages can be challenging, as it is often difficult to determine the true extent of the defamatory material's dissemination. Courts must consider both the initial publication and any subsequent republications or media coverage to gauge the extent of the plaintiff's reputation damage.

In some cases, as seen in Brose v Baluskas & Ors (No 6), the media coverage of defamation proceedings can contribute to the grapevine effect, potentially exacerbating the plaintiff's reputational harm.

In assessing damages, courts also need to consider the need for vindication of the plaintiff's reputation. The sum awarded for vindication must be "at least the minimum necessary to signal to the public the vindication of the [plaintiff’s] reputation and sufficient to convince a person to whom the publication was made or to whom it has spread along the grapevine of 'the baselessness of the charge'" (Brose v Baluskas & Ors (No 6), [457]).

Key Take-Aways

• The grapevine effect is an important factor to consider in defamation cases, as it can significantly impact the extent of damage to the plaintiff's reputation.

• With the rise of social media, the grapevine effect has become even more potent, making it crucial for courts to carefully assess its role in each case.

Revoking an Enduring Power of Attorney in Western Australia: Mental Capacity

Enduring Powers of Attorney (EPA) serve as an essential legal document that enable a person (the donor) to appoint one or more individuals (the attorney(s)) to manage their financial affairs in the event of incapacity.

However, there are situations where the donor might want to revoke the EPA, either due to a change in circumstances or for other reasons.

In this blog post, I discuss the mental capacity required to revoke an EPA in Western Australia, using the KRL [2010] WASAT 187 decision as a reference.

Mental Capacity and the Revocation of an EPA

To revoke an EPA, the donor must possess the mental capacity to understand the nature and consequences of their decision. According to the High Court of Australia in Gibbons v Wright (1954) 91 CLR 423, the capacity to understand the nature of a transaction is determined by whether the person can comprehend the transaction when it is explained to them. In the context of revoking an EPA, the donor must understand the authority given to their attorney(s) and the consequences of taking away that authority.

In KRL [2010] WASAT 187, an elderly woman with cognitive impairment revoked her EPA, which had been operating to meet her need for financial management. However, the question of whether she was competent to make the revocation was raised by the appointed administrator. The tribunal examined whether the woman understood the nature and consequences of her decision, taking into consideration the evidence provided by her friend who had assisted her with the revocation process.

Presumption of Capacity and Guardianship and Administration Act

Under the Guardianship and Administration Act 1990 (WA) (GA Act), there is a presumption of capacity for individuals, meaning that a person is presumed capable of making reasonable decisions about their person and their estate until proven otherwise. This presumption mirrors the common law principle that a person is presumed to be capable of executing a document.

In KRL [2010] WASAT 187, the tribunal applied the principles of the GA Act and the general law to determine the woman's capacity to revoke her EPA. Although there were doubts about her understanding of the nature and consequences of her decision, the tribunal did not have the power to declare the validity or invalidity of the revocation under the GA Act.

The Role of the State Administrative Tribunal

The State Administrative Tribunal (SAT) in Western Australia has powers under the GA Act and the State Administrative Tribunal Act 2004 (WA) to deal with guardianship and administration matters. However, the GA Act does not grant the SAT declaratory powers in respect of the validity or invalidity of an EPA or the revocation of one. In cases where the validity of an EPA or its revocation is in question, the matter may be brought before the Supreme Court.

Key Take-Aways

• Revoking an EPA in Western Australia requires the donor to possess the mental capacity to understand the nature and consequences of their decision.

• While the GA Act provides a presumption of capacity, the question of whether a person is competent to revoke an EPA may still be raised in some situations.

• The SAT does not have the power to declare the validity or invalidity of an EPA or its revocation; such matters may be addressed by the Supreme Court.

• When seeking to revoke an EPA, it is wise to consult with a qualified guardianship lawyer to ensure that the legal requirements are met and the donor's intentions are carried out as intended.

Understanding the Extent to which a Guardian or Administrator is Entitled to See the Represented Person's Will in Guardianship Matters under the GA Act

In the world of guardianship and administration law, one important question often arises: to what extent is a guardian or administrator under the Guardianship and Administration Act (GA Act) entitled to see the represented person's will?

This blog post provides an overview of this subject, relying on the decision in MT [2018] WASAT 80 as a reference point.

The MT Case and Relevant Legislation

In MT [2018] WASAT 80, the question of whether a guardian or administrator should have access to the represented person's will was discussed. The Tribunal, in this case, held that it was not necessary to view the will of the represented person (MT) to determine the application for the appointment of an administrator of MT's estate in her lifetime (para 49). This was because the Tribunal's role was to determine whether MT needed an administrator for her estate, and the terms of her will were not relevant to this question (para 50).

However, the Tribunal acknowledged that the terms of a will may be relevant to the question of who may be appointed as an administrator (para 51). For example, the appointment of an executor in an unrevoked will may provide guidance to the Tribunal as to the wishes of a proposed represented person for the appointment of an administrator.

Access to the Represented Person's Will

Under the GA Act, the Public Advocate has functions to advance the best interests of the represented person at hearings, to present any relevant information to the Tribunal, and to report on any investigation referred (GA Act s 97(1)(b)(i)(ii)(iii)).

In MT, the Tribunal accepted the evidence of the Public Advocate's investigator, who gathered MT's views and wishes without requiring access to her will (para 48).

In some circumstances, access to the represented person's will may assist the administrator in clarifying the extent of the estate or determining whether further orders might be sought by the administrator for preserving the tenure or devolution of the represented person's property (para 65).

In MT, the Tribunal ordered that a copy of the will should be provided to the Public Trustee if it was in the possession of AT, one of the parties in the case (para 3).

The Importance of Best Interests

In deciding on the appointment of an administrator, the Tribunal's primary obligation is to act in the best interests of the represented person (para 63).

While the Tribunal must ascertain the wishes of the represented person, it must weigh these wishes against factors such as the complexity of the circumstances, the conflict between family members, and the expertise and neutrality of the proposed administrator.

Key Take-Aways

• In summary, under the GA Act, a guardian or administrator is not automatically entitled to see the represented person's will.

• The terms of the will may be relevant to determining who should be appointed as an administrator, but the focus should be on the best interests of the represented person.

• Access to the will may be granted in some cases to assist the administrator in fulfilling their duties, but this will depend on the specific circumstances of each case.