JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: GS -v- MS [2019] WASC 255
CORAM: QUINLAN CJ
HEARD: 24 JUNE 2019
DELIVERED : 19 JULY 2019
FILE NO/S: GDA 15 of 2018
BETWEEN: GS
Appellant
AND
MS
Respondent
ATTORNEY-GENERAL FOR WESTERN AUSTRALIA
Intervenor
Catchwords:
Constitutional Law - Section 75 - Judicial Power - Jurisdiction of State Administrative Tribunal - Guardianship and administration orders - Whether State Administrative Tribunal has jurisdiction to determine application for guardianship order or administration order - Whether application for guardianship order or administration order involves exercise of judicial power - Whether application for guardianship order or administration order is a matter between residents of different States.
Legislation:
Australian Constitution
Guardianship and Administration Act 1990 (WA)
Judiciary Act 1903 (Cth)
State Administrative Tribunal Act 2004 (WA)
Result:
GAA 3092 of 2017:
Leave to appeal granted
Extension of time to appeal granted
Appeal dismissed
GAA 3093 of 2017:
Leave to appeal granted
Extension of time to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
| Appellant | : | Ms R Young |
| Respondent | : | No appearance |
| Intervenor | : | Mr A J Sefton & Mr B D Nelson |
Solicitors:
| Appellant | : | Solomon Brothers |
| Respondent | : | Mills Oakley |
| Intervenor | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
Attorney General of New South Wales v Gatsby [2018] NSWCA 254
Attorney-General (Cth) v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542
Attorney-General v Raschke [2019] SASCFC 83
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245
British American Tobacco v Western Australia [2003] HCA 47; (2003) 217 CLR 30
Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 243
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1
Crouch v Commissioner for Railways [1985] HCA 69; (1985) 159 CLR 22
Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333
Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570
In re Crittendon; Ex parte The Law Institute of Victoria [1958] VR 101
In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257
Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Mustac v Medical Board of Western Australia [2007] WASCA 128
PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373
Precision Data Holdings Ltd v Wills [1991] HCA 58; (1992) 173 CLR 167
Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144
R v Davison [1954] HCA 46; (1954) 90 CLR 353
R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA…
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- AGLC
- GS v MS [2019] WASC 255
- Case
- [2019] WASC 255
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the application for guardianship and administration orders involved the exercise of judicial power, and if so, whether this meant that the State Administrative Tribunal lacked the jurisdiction to hear such applications. The court had to ascertain whether these orders were essentially judicial in nature or if they fell within the realm of administrative functions. The court also needed to determine if the application involved a matter between residents of different states, which would potentially impact the tribunal's jurisdiction.
In addressing these issues, the court examined the nature of the functions involved in guardianship and administration orders. The court noted that while these orders did involve the determination of a person's rights and obligations, they were not akin to the core judicial functions such as the adjudgment and punishment of criminal guilt. Instead, these orders were more aligned with administrative functions, as they involved determining what legal rights and obligations should exist in the future. The court relied on previous cases such as Precision Data Holdings Ltd v Wills and Attorney-General (Cth) v Alinta Ltd to distinguish between judicial and administrative functions.
The court concluded that the application for guardianship and administration orders did not involve the exercise of judicial power, and thus, the State Administrative Tribunal had the jurisdiction to hear such applications. The court found that these orders were not essentially and exclusively judicial in character but rather involved administrative functions. As such, the tribunal was not precluded from exercising its jurisdiction over these matters.
The court's decision provided clarity on the jurisdictional boundaries of the State Administrative Tribunal in relation to guardianship and administration orders. It affirmed that the tribunal could indeed hear applications for such orders, provided that they did not involve the exercise of judicial power. This ruling helped to delineate the scope of the tribunal's authority and provided guidance for future cases involving similar issues.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
So, for example, as Brennan, Deane & Dawson JJ stated in Chu Kheng Lim v Minister for Immigration:[37]There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to … and "could not be excluded from" … the judicial power of the Commonwealth.[37] Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1, 27 (Brennan, Deane & Dawson JJ); Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 [15] (Kiefel CJ, Bell, Keane & Edelman JJ). Functions such as this necessarily involve the exercise of judicial power, and could never be characterised as anything other than involving judicial power (regardless of the body upon which they are sought to be conferred).[38][38] Raschke [74] (Kourakis CJ). At the other end of the spectrum are powers that are concerned not with determining what persons' rights and obligations are, but what they should be in future. This was the essential holding of the unanimous decision of the High Court in Precision Data Holdings Ltd v Wills, namely that:[39]… if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power. In Re Ranger Uranium Mines (1987) 163 CLR at p 666 the Court said:"The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration."[39] Precision Data Holdings Ltd v Wills [1991] HCA 58; (1992) 173 CLR 167, 189 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ) (Precision Data Holdings). Precision Data Holdings was concerned with certain powers of the Corporations and Securities Panel under the Corporations Law of Victoria, which the Court held did not involve the exercise of judicial power. The same conclusion was reached in relation to the Takeovers Panel under the Corporations Act 2001 (Cth) in Attorney-General (Cth) v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542. The difficulty, of course, which arises in the application of these general principles is that there may be much in the way of overlap between those functions which sit at the 'core' of judicial power (and which are exclusively and essentially part of it) and those functions that may be regarded as 'purely' administrative.