JCB

[2025] WASAT 1

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   JCB [2025] WASAT 1

MEMBER:   MS KY LOH, MEMBER

HEARD:   17 SEPTEMBER 2024

DELIVERED          :   2 JANUARY 2025

FILE NO/S:   GAA 3603 of 2024

JCB

Represented Person

OFFICE OF THE PUBLIC ADVOCATE

Applicant

Catchwords:

Guardianship and administration - Represented person moved from Perth to Adelaide - Administration orders made by South Australian Civil Administration Tribunal (SACAT) - Concerns of risk of financial exploitation by SACAT - appointed administrator - Jurisdiction to make administration order for non-resident's estate in Western Australia - Whether obligation to give 'full faith and credit' to SACAT orders

Legislation:

Commonwealth of Australia Constitution Act, s 51(xxv), s 118
Crimes Act 1914 (Cth)
Evidence Act 1995 (Cth), s 4(1), s 5, s 185
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 17A, s 40, s 40(1), s 43, s 43(1), s 44, s 44(1), s 44(2), s 44(2)(a), s 44(5), s 44A, s 44A(3), s 51(1), s 51(2), s 64, s 64(1), s 67(1), s 67(2), s 68, s 68(1), s 68(5), s 70, s 70(2), s 70(2)(a), s 70(2)(b), s 70(2)(d), s 77(1), s 83D, s 83D(3), s 84, s 85, s 86, s 86(1), s 86(1)(a), s 86(1)(b), s 86(2), s 87, s 89(3)(b), s 90, s 90(1), s 90(1)(a), s 90(1)(b), s 104A(1)
Guardianship and Administration Act 1993 (SA)
Interpretation Act 1984 (WA), s 18
Mental Health Act 1996 (WA)
Service and Execution of Process Act 1992 (Cth), s 3(1), s 105(2)
State Administrative Tribunal Act 2004 (WA), s 85, s 86
State and Territorial Laws and Records Recognition Act 1901 (Cth) (repealed), s 18

Result:

Public Trustee appointed limited administrator
Guardianship order revoked

Category:    B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	N/A

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police (2020) 56 WAR 102; [2020] WASCA 157

Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 517

Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10

Breavington v Godleman (1998) 169 CLR 41; [1988] HCA 40

EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501

G v G (1986) 64 ALR 273; (1985) 10 FamLR 718

NCK [2004] WAGAB 6

Ocalewicz v Joyce [2012] NSWSC 1163

Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Re an Alleged Incapable Person FCC and the Protected Estates Act 1983 (1990) 19 NSWLR 541

Re PQR and the Protected Estates Act 1983 [2005] NSWSC 729

Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475

SAL v JGL [2016] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Since 22 September 2020, JCB has been the subject of guardianship and administration orders made by the Tribunal appointing the Public Advocate and the Public Trustee respectively.

2. JCB has been diagnosed as suffering from schizophrenia.

3. Sometime in October 2022, JCB travelled to South Australia, and save for a brief period in 2023, continues to reside in South Australia with her daughter CCB and CCB's children in CCB's public housing accommodation.

4. As JCB is no longer a resident of Western Australia, the Public Advocate applied for guardianship and administration orders before the South Australian Civil Administrative Tribunal (SACAT), and SACAT declined to make a guardianship order but made orders appointing CCB as limited administrator of specific functions in June 2024.

5. The Public Advocate now seeks revocation of the guardianship order, and a review of the administration orders, under s 86(1) of the Guardianship and Administration Act 1990 (WA) (the Act).

6. The Public Trustee seeks a limited administration order on the basis that JCB still needs an administrator due to her lack of capacity to manage her financial affairs, and the Public Trustee challenges CCB's suitability as administrator.

7. For reasons set out below, I am satisfied that the SACAT orders do not preclude the making of an administration order in respect of JCB's estate in Western Australia.

8. I find that JCB continues to suffer a lack of capacity due to her mental disability to make reasonable judgments in respect of, and continues to need an administrator for, part of her estate held by the Public Trustee.

9. I also find that CCB's past conduct in seeking access to her mother's funds for her own benefit rather than for her mother's renders her unsuitable to be appointed as administrator of JCB's estate in Western Australia, and so I will re-appoint the Public Trustee as limited administrator of JCB's funds currently held by the Public Trustee and of funds expected to be received from her criminal injuries compensation claim.

10. I am also satisfied that there is no jurisdiction to make a guardianship order and will revoke the guardianship order.

Background

1. The following facts are based on documents lodged with the Tribunal and are not controversial.

2. JCB is a 55-year-old woman.

3. JCB has two children, CB and CCB, with another daughter, KB, having sadly passed away on 12 April 2023.

4. JCB's son and siblings live in Perth, and she has an aunt and cousin who live in Adelaide.

5. In 2020, JCB was a tenant in a one-bedroom unit in Western Australia under a lease with the Department of Communities (Department), and sometime during June to August 2020, CB, with his partner and child, moved into JCB's unit to live with her.

6. JCB was diagnosed with suffering from schizophrenia in 2005 during her admission to a hospital as an involuntary patient under the Mental Health Act 1996 (WA) during 20 May 2005 to 9 June 2005.

7. She then had further admissions as an involuntary patient during 24 April 2012 to 4 May 2012, 9 March 2020 to 17 March 2020 and 19 June 2020 to 31 August 2020.

8. JCB has a criminal history, which includes convictions in May 2020 for assaulting a public officer and disorderly conduct and has spent time in prison.

9. During her June-August 2020 hospital admission the hospital applied for guardianship and administration orders in respect of JCB.

10. The hospital raised concerns about her ability to maintain her tenancy due to outstanding debts, having guests who might jeopardise her tenancy and maintenance issues that she was not able to arrange with the Department.

11. There were also concerns that she was not able to progress her claim for compensation under the National Redress Scheme.

12. On 22 September 2020, the Tribunal appointed the Public Trustee as JCB's plenary administrator, and the Public Advocate as JCB's limited guardian with the authority to make decisions in respect of services to which JCB was to have access, with a review period of 1 year.

13. Prior to the review hearing, JCB was again admitted as an involuntary patient from 1 August to 8 September 2021.

14. At the review hearing on 13 September 2021, the member re­appointed the Public Trustee as plenary administrator, and the Public Advocate as limited guardian, adding to the guardianship order the functions of where JCB was to live, whether temporarily or permanently, and with whom, with a review period of 5 years.

15. CB sought a review of the administration order under s 17A of the Act on 6 October 2021, and a Full Tribunal affirmed the administration order on 3 May 2022.

16. Prior to the Full Tribunal's determination, JCB had another hospital admission as an involuntary patient from 20 January to 1 February 2022.

17. Sometime in October 2022, JCB moved to Adelaide, with JCB's supports and guardian being informed on 12 October 2022 that CCB and KB had bought her tickets to fly to Adelaide and booked her into temporary Airbnb accommodation.

18. Sometime in or around October 2022, the Public Trustee accepted an offer of compensation on JCB's behalf under the National Redress Scheme.

19. JCB had an admission to a hospital in Adelaide in November 2022.

20. JCB had moved between multiple short-term accommodation, including a motel until 1 March 2023, and is currently living with CCB and CCB's three children in CCB's public housing unit.

21. On 18 January 2023, CCB had, effectively, sought a review of the guardianship and administration orders due to JCB's relocation to Adelaide.

22. At around the same time, the Public Advocate had also applied to SACAT for guardianship and administration orders in respect of JCB.

23. Both sets of proceedings were complicated by JCB's return to Perth in January 2023 for her father's funeral and April 2023 for KB's funeral, and conflicting indications to the Public Trustee and the Public Advocate about where JCB intended to reside permanently.

24. Ultimately, the Public Advocate successfully withdrew her application before SACAT in June 2023, and leave to review the orders before the Tribunal was ultimately refused under s 87 of the Act on 2 August 2023.

25. On 14 June 2024, on application by the Public Advocate to SACAT for guardianship and administration orders, the SACAT senior member dismissed the application for guardianship, not being satisfied that a guardianship order should be made given the adequacy of existing informal arrangement.

26. The SACAT senior member found that JCB had a mental disability and made the following limited administration order:

    1.[CCB] is appointed limited administrator of the estate of [JCB].

    2.Administration is limited to:

    2.1The management of [JCB's] application with the Office of Criminal Injuries Compensation in WA on behalf of [JCB]; and

    2.2The assets of [JCB] currently managed by the Public Trustee in WA (totalling approximately $109,000.00).

    …

27. The SACAT senior member recommended that the SACAT administration order be reviewed on or before Friday 13 June 2025.

28. On 18 July 2024, the Public Advocate sought review of the guardianship and administration orders made by the Tribunal.

29. On 24 July 2024, CCB made applications under s 40(1) of the Act for guardianship and administration orders and under s 104A(1) of the Act to 'respect' the SACAT order.

30. By orders dated 26 July 2024, the senior member of the Tribunal dismissed the s 40(1) application as there were existing orders made by the Tribunal already listed for review in this matter, and dismissed the s 104A(1) application as what was sought to be recognised was interstate Tribunal orders, rather than an enduring power of attorney.

31. The senior member also ordered that the applications and attached documents be filed as submissions in these proceedings.

32. At the hearing of the application on 17 September 2024, Ms O appeared on behalf of the Public Advocate, whilst Trust Manager K appeared on behalf of the Public Trustee.

33. At the conclusion of the hearing, I reserved my decision.

Issues

1. The following issues need to be determined:

   (1)Does s 83D of the Act apply to recognise the SACAT orders?

   (2)Does the Tribunal have the jurisdiction to review a guardianship or administration order where a represented person resides outside of Western Australia?

   (3)What effect can SACAT orders have in Western Australia?

   (4)If the Tribunal has powers of review, how should the Tribunal exercise its powers under s 90 of the Act?

Public Advocate's position

1. The Public Advocate says that given that JCB is now permanently residing in South Australia, and SACAT's determination that she is not in need of a guardian as CCB is able to informally assist her with lifestyle decision-making, there is no current need for the Public Advocate to be the guardian for JCB.

2. At the hearing, Ms O stated there was no role for the Public Advocate to play as JCB is connected to mental health services and is actively engaged with services being provided under JCB's National Disability Insurance Scheme (NDIS) plan, which had all been arranged without the involvement of the Public Advocate.

3. Ms O also considered that there is no indication that JCB will return to Western Australia.

4. In her view, there is no need for a guardianship order as JCB's needs are being met by less restrictive means, and she believes the guardianship order should be revoked.

5. As to the Public Advocate's SACAT application, Ms O had also appeared at the SACAT hearing, with a Public Trustee trust manager, R.

6. Ms O stated that the Public Advocate had proposed the appointment of the South Australian Public Advocate (SA-PA) and South Australian Public Trustee (SA-PT) as guardian and administrator respectively.

7. Ms O had raised objections about CCB managing JCB's estate, given the supportive relationship was working well and that it could cause a deterioration in the relationship if CCB was to make financial decisions for JCB.

8. Ms O was aware of the Public Trustee's concerns about possible financial exploitation by CCB against JCB, but said this issue was not explicitly discussed in the SACAT hearing as they were trying to deal with this issue in as sensitive a manner as possible.

9. She recalled a discussion with JCB about her funds during the SACAT hearing, in which JCB was quite heightened about wanting to buy a house, and the senior member and R had tried to explain that she did not have enough funds to do so.

10. Ms O stated that there were conversations with the SA-PA and SA­PT prior to the submission of their reports to SACAT, in which the Public Advocate and Public Trustee raised concerns about JCB's presentation, how complicated it was to engage with her, and how her relationship with her children had fluctuated quite significantly over the years.

11. Whilst representatives from the SA-PA and the SA-PT had appeared at the hearing, Ms O said that they were not in support of orders for the appointment of the SA-PA and the SA-PT, and saw value in family supportive relationships.

12. When I asked whether it was raised in the course of the SACAT hearing that no family was ever appointed in the guardianship or administration role since Tribunal orders were made in respect of JCB in 2020, Ms O said that it was not specifically brought up in the SACAT hearing.

Public Trustee's position

1. The Public Trustee says that SACAT has no jurisdiction to, effectively, amend the Tribunal's administration order with the making of its own limited administration order; indeed, the Public Trustee considers that he cannot act on the SACAT order and will need an order from the Tribunal authorising the payment of funds as directed by SACAT.

2. Due to concerns about CCB managing large amounts of money for JCB, the Public Trustee recommends that the Tribunal continues the Public Trustee's appointment as administrator, albeit limited to the funds currently held by the Public Trustee (which comprise compensation payments).

3. The Public Trustee's concerns about CCB's behaviours in requesting access to funds held by the Public Trustee for JCB were first raised on the review application before the Tribunal in 2023.

4. In her report to the Tribunal dated 15 March 2023, R (then the trust manager for JCB) had stated the relevant concerns relating to CCB:

   Since [JCB's] move to South Australia, there have been several unacceptable requests and concerning behaviour regarding the management of [JCB's] affairs.

   …

   [CCB] has been inquiring about the status of [JCB's] redress, which the Public Trustee cannot comment on.  Furthermore, [CCB] requested reimbursement for transactions that had already been paid for by [JCB] from her external account.  This is concerning behaviour that suggests a possible exploitation of [JCB's] funds.

   Additionally, [JCB] made [a] request to the Public Trustee for $8,999.00 and then $20,000 to purchase a vehicle for [CCB], claiming that [CCB] had been swindled out of her previous car.  However, [JCB] has two permanent disqualifications that prevent her from obtaining or holding a driver's [licence], making this request untenable.

   The Public Trustee declined all of these requests as it seemed that the benefit would be for other parties[.]

5. R had also filed an attachment to her report entitled 'Timeline of Concerns' providing particulars of the concerns raised in her report.

6. In that Timeline, she provided particulars of interactions with CCB that support her concerns about the possible appointment of CCB as administrator, an extract of which is set out below:

   …

   17/10/2022 - [CCB] queries the whereabouts of [JCB's] redress, the Public Trustee advises her that we cannot provide comment on the status of [JCB's] affairs.

   …

   9/11/2022 - The Public Trustee received a screenshot of a Form 1 - Purchase for a secondhand vehicle from [CCB] for $8999.00, As [CCB] did not have a working vehicle.

   This request was declined.

   We then received several reimbursement requests from [CCB], upon conversation with staff at the hospital where [JCB] was residing it came to our attention that a number of the reimbursement requests [were] for transactions already used by [CCB] from the Represented persons external account (and therefore already paid for by the Represented person).

   We advised [CCB] on the 11th November 2023, that:

   Good Afternoon [CCB],

   We are in receipt of your numerous emails yesterday afternoon however please note that The Public Trustee may not be able to reply to your email or call's immediately, but we will endeavour to contact her as quickly as possible if your email or call relates to an urgent matter.  Otherwise the Public Trustee aims to provide a response within ten (10) business days in accordance with the Public Trustee's Standards.

   You are within your rights to seek legal representation should you feel it necessary however please note that we have requested for you to please send through the accounts that you claim have not been reimbursed to you,

   Since the 17/10/2022 we have reimbursed you:

   •Clothing - $29.00

   •Clothing - $64.95

   •Clothing - $ 79.50

   •Accommodation - $373.50

   •Clothing - 131.45

   •Flight costs - $1943.23

   All of the previous accounts have been refunded to you in their entirety. If there is an account that has been overlooked, we would like for you to provide this to us again and we will be able to consider the cost incurred.

   We are confirming with [Hospital] that [JCB] is in receipt of the items you have submitted yesterday that total an additional: - $1038.17

   The items that are listed on these receipts are for multiple makeup and clothing items, there are also charges for a kick board, frozen slide pool slip which the client would not be benefitting from, Please re-submit the dockets highlighting the items that are for [JCB] only.  Half of the BIG W receipt is not eligible and you will need to provide us a list of the items on there with the correct charges that are associated with [JCB] only.

   As I have advised we are awaiting on confirmation from the Support staff at [Hospital] that [JCB] is in possession of these items,

   We would like to take the moment to reiterate to you that The Public Trustee cannot guarantee reimbursement of expenses when prior approval has not been sought and therefore moving forward we will only be able to reimburse you for any expense that is approved first and foremost by our office.  Should you purchase an item and require reimbursement of those expenses then a receipt or tax invoice will need to be supplied in every instance (these will need to be legible and in good condition) should this not occur your request for reimbursement may be declined.

   [JCB] has a support network in place that are in constant communications with our office to ensure that she is being well cared for.

   The Hospital has advised that she is not in need of anything at the moment and they have a cashier that we can expended funds to for her expenses.

   As per the State Administration Tribunal orders we are [JCB's] Plenary administrators, and we will continue to act in her best interest at all times.

   This advice to [CCB] that we would not be considering these items were met with abuse and threats.

   13/11/2022 - We received advice from supports for [JCB] that they held concerns about [CCB]: I am very concerned about [CCB] ([JCB]daughter)'s negative influence on her mother. I was informed that her substance abuse has impacted on [JCB]. I believe that [JCB's] mental health situation got worse because of these substances in Adelaide.

   My suggestion will be that all efforts should be made towards finding accommodation for [JCB] where she will live independent of her daughter. I believe that the closer she is to her daughter, the worse her mental health situation. I will not advise she should be released before any accommodation is found for her.

   1/12/2022 - We received advice from [CCB] in the way of 6 consecutive emails over the course of 4 hours outlining that [JCB] required funds along with a number of demands for gifting etc.  The Public Trustee reached out to supports and were advised that they had no concerns with the administration being provided by the Public Trustee.

   6/12/2022 - The Public Trustee received the attached "Certified power of attorney" from [CCB].  We wrote to her and advised that somebody executing a power of attorney needs to have capacity to do so.  [JCB] is under a guardianship and administration order and, as such, she is unable to do so.  This document is therefore invalid. We then contacted the Justice of the Peace in SA who witnessed the documents to advise of our involvement and that these were invalid documents, they agreed to dispose of their copies and advise [CCB] of the same.

   The Public Trustee wrote to Supports to advise:

   [JCB] keeps calling and leaving threatening and abusive voicemails on the answering machine at the Public Trustee therefore we will not return her calls. Both [JCB] and [CCB] have been made aware of this numerous times in the past and present.

   As for Christmas funds, [JCB] does not have gifting in her order (which I advised [CCB] last week) - without this direction in the State Administration Tribunal order we can not advance her funds with the purpose of gifting as we do not have the authority to do so.  We usually see this when there are concerns of exploitation. (Which there is in this regard and admitted by [CCB] herself – that her brother has tried to use physical threats and emotional abuse to exploit [JCB]).

   We can however advance her Christmas funds for her to spend on herself, we can arrange $250.00 for Christmas (as we have previously done) for [JCB], this will be transfer to her today. We have received the first accommodation invoice and they will arrange a weekly one to be forwarded to us moving forward.

   We have included the current budget for [JCB] which you can see there is a $1587.41 over spend per fortnight for [JCB], this accommodation is not affordable for her and should the current expenditure continue long term she will be back to pension in pension out in 3 and a ½ years.

   Financially speaking we are supporting [JCB] more than affordable for her by $41,272.69 per annum.

   15/12/2022 - [CCB] contacted our office for an advance for a Modelling show she was due to enter in February 2023.  Upon declining this request the Public Trustee [was] bombarded with emails and voicemails of an abusive nature which required a block to be placed on their communications for a period of 24 hours.

   Allegations of theft were made by [CCB] against a support worker that were never able to be established as factual.  The allegations saw [JCB] loose a long-time support agency and network. [JCB] then pawned the said mobile phone for cash.

   …

   18/02/2023 - The Public Trustee received a request for $20,000.00 from [JCB] to purchase a vehicle with claims that a car [CCB] purchased had broken down, [CCB] had been (in [JCB's] words) 'Swindled out of a car' and she therefore wanted to purchase her a vehicle claiming that it was for her and she will be the one driving it.  Enquiries into whether [JCB] could purchase a vehicle (with a valid drivers licence) brought to light that [JCB] is subject to two (2) Permanent Disqualifications (PD) issued by the court, as such she is disqualified from holding or obtaining a licence for a period not less than 10 years from the issue date (07/10/1997 and 18/07/2000).

   Once the 10 years has passed the client, is required to attend Court to make an application to have the PD lifted.  This determination is at the discretion of the magistrate at the time.

   We therefore advised [JCB's] supports that this request was declined[.]

1. At the hearing, K stated that she also held concerns about CCB managing large amounts of money for JCB and being able to act in JCB's best financial interests with a risk of potential exploitation of JCB's funds.

2. Her concerns were based on CCB's previous conduct in requesting monies for quite large purchases (such as for vehicles in respect of which JCB could not drive or from which JCB could not benefit) and providing receipts for items over which she held doubts that they had been purchased for JCB.

3. K stated that this pattern of behaviour from CCB had continued in this fashion for a number of years whilst JCB was living with CCB in South Australia.

4. K stated that she did not have direct knowledge of what was discussed during the SACAT proceedings, as R appeared at the SACAT hearing and had only given her brief notes.

5. Immediately after the SACAT hearing, K said that the Public Trustee received a lot of correspondence from JCB and CCB about JCB's money.

6. K stated that a senior trust manager decided that JCB could manage her pension, and so the Public Trustee enabled JCB to receive her pension into her own account by writing to Centrelink to make these arrangements.

7. Upon becoming aware that CCB had attempted to have JCB's pension paid into an account in CCB's name, the Public Trustee objected to that arrangement, but K was not aware whether JCB directly received her pension or whether CCB received JCB's pension.

8. In terms of finalising the criminal injuries compensation claim, K was not convinced that CCB was the best person to progress that application on her behalf, as CCB was not easily contactable, communications with CCB could be erratic, and at times CCB could be abusive.

9. Ms O supported K's evidence, stating that she did not believe CCB had the ability to manage and follow through with the criminal injuries compensation claim process.

10. K agreed with medical evidence that JCB did not have capacity to make financial or legal decisions, and certainly not decisions regarding large sums of money.

11. K believed that JCB was easily manipulated by people around her requesting large amounts for their own benefit and not hers.

12. That was evident not only in JCB's requests for purchases for CCB, but also her requests for purchases of iPhones and laptops for CB when she returned briefly to Western Australia, which the Public Trustee had to scrutinise and ultimately decline.

13. K stated that the Public Trustee had not decided to pursue other courses of review of the SACAT orders as it wanted the Tribunal to review the administration orders first, but might consider review of the SACAT orders at a later stage.

14. K identified that $107,894 was currently held in the Public Trustee's common account on trust for JCB, and that there was a refund of $5,909 expected in respect of a criminal injuries claim submitted on behalf of JCB.

15. K indicated that the Public Trustee believed that only a limited administration order was necessary in respect of the current funds held by the Public Trustee and expected criminal injuries compensation payment.

CCB's submissions

1. Attempts were made to contact JCB and CCB by telephone at the hearing, but these attempts were unsuccessful.

2. Under s 67(2) of the Act, notwithstanding s 89(3)(b) of the Act, the Tribunal may dispense with the requirement for notice to be given under that section to the represented person where that person is not resident or domiciled in Western Australia.

3. Ms O recalled that prior to the hearing she had contact with either JCB or CCB, who were aware about the Tribunal hearing.

4. I was satisfied that JCB and CCB were aware of the hearing and there was a need to proceed with determining the application, and so the hearing proceeded in JCB's and CCB's absence.

5. In CCB's applications, which stand as submissions in these proceedings, CCB states that her:[1]

   … mother would like the order here made in [S]outh Australia to be [r]espected as it was made by a SACAT COURT AND SENIOR MEMBER WHO [p]ersonally read all our documents and took our claims into consideration.  We believe that the order that was currently made in South Australia should stand for [JCB] as it has been made on the latest and best and current medical information provided.  With her in good care with her daughter [CCB] and had no current outbreak of mental illness could you please give this opportunity to [JCB] to have a one of her family members take control of her [p]ersonal health and physical and mental problems as they are being cared for by [CCB] at the mome[nt].

   [1] CCB's application to the Tribunal lodged on 24 July 2024.

6. CCB also submits that '[t]he administrator of Western Australia has not complied with the S[ACAT] order that was made by a senior member at the S[ACAT] hearing that we just was given Private financial administrator, by Senior SACAT MEMBER HERE IN SOUTH AUSTRALIA ON THE 14/6/24'.

7. Further, CCB states that:

   I am [JCB]'s eldest daughter as I am taking care of her and I'm is it Centrelink car[er] and also I'm the main important person in her life at the and worry about her and would do anything for [m]y mother [JCB].  I've supported her through all the mess ups from the current administration in control of her well-being and much more.  I'm concerned she hasn't been taken care of by the public advocate officer's assigned to her case. I feel I won't stop fighting for her physical, me[n]tal, and financial situations are not abused by the very people who's meant to look after all her needs. Abuse of elderly disability and me[n]tal health issues are being made with no compassio[n]'.

   …

   My mother has been absolutely mistreated and I feel it's a form of abuse on their behalf because they put the order on mum when my brother told the doctors lies and was physically and mentally abusing her with the administration and guardianship allowing it to be possible for the person who abused her to have the Current order placed on her by a person of abuse.

Medical and service provider evidence

1. For the purposes of this hearing, the Tribunal requested, and received, reports from Ms L, clinical neuropsychologist from South Australia, dated 30 August 2024, and CH, clinical nurse from a community mental health service in South Australia dated 1 August 2024.

2. In informing myself on the matters of JCB's mental disability and how it affects her capacity to make decisions, and of her needs or vulnerabilities in respect of decision-making, I have also had regard to the evidence submitted for the purpose of previous hearings and, in particular, the following medical and service provider reports:

   (a)service provider report of Ms J, community mental health nurse, at a community mental health service, dated 1 November 2021;

   (b)medical report of Dr C, at a community mental health service dated 26 November 2021;

   (c)service provider report of OL, Support Co-ordinator in South Australia, dated 24 March 2023; and

   (d)functional care needs assessment by SK, Occupational Therapist in South Australia, dated 1 May 2023.

Ms J

1. Ms J had known JCB for 6 months at the time of completing her report on 1 November 2021, and noted JCB's recent admission to the hospital from 1 August to 7 September 2021 for relapse of paranoid schizophrenia.

2. Ms J was aware that JCB had two children, KB and CB, but had no contact with JCB's children and described family relationships as 'close but volatile'.

3. Ms J did not consider JCB made financial decisions in her own best interests, stating that there was a history of alcohol and methamphetamine use, and that JCB did not manage her money well.

4. Ms J considered JCB vulnerable to financial exploitation by others or otherwise at risk, stating that JCB had 'multiple people in her residence that then steal items'.

5. Ms J stated that JCB had limited insight into her mental health issues and would have aggressive outbursts if her needs were not met.

6. Ms J also noted JCB's erratic engagement with all service providers.

7. As to her accommodation needs, Ms J stated that JCB needed support to maintain her tenancy with the Department and noted tenant liability charges.

Dr C

1. Dr C had seen JCB twice in less than 2 months at the time of completing his medical report in November 2021.

2. He diagnosed JCB with a mental disability, being schizophrenia, methamphetamine and alcohol use disorders, noting she had first engaged with forensic services in 2003, with several admissions to hospital in the last 2 years, engaged on/off with clinic, and recently under a Community Treatment Order which had been revoked.

3. Dr C considered her disability to be fluctuating in nature.

4. As to whether JCB had the cognitive capacity to make reasonable financial or legal decision, Dr C stated that he did not consider her capable of making complex financial decisions, and would struggle to manage large sums of money or complicated arrangements.

5. Dr C was unsure if JCB had the capacity to make reasonable decision in relation to simple financial matters or legal matters.

6. As to personal decision-making, Dr C considered JCB to have capability to make reasonable decisions about medical treatment and procedures and accommodation, although was unsure about her capability regarding services.

Ms L

1. It appears from the SACAT orders that SACAT had received a neuropsychological report from Ms L dated 9 May 2024 regarding JCB's mental capacity to make decisions, which provided that she could not make decisions with respect to complex financial, legal and personal affairs but that she could make every day decisions concerning her accommodation and what she wanted to do with her money.

2. In Ms L report dated 30 August 2024, she stated that she had only seen JCB for an examination over 2 hours on one occasion and acknowledged that JCB had 'been assessed by occupational therapy from a functional point of view and specialist disability support was recommended.  She has also been assessed by psychiatrists in Western Australia [Dr C] who diagnosed her with Schizophrenia and methamphetamine and alcohol use disorders.  She has also received input from social workers'.

3. Ms L stated that JCB suffered from a mental disability, commenting that JCB did not display any symptoms of psychotic thought at the time of the assessment, noted that JCB had been receiving depot psychiatric medication (which likely kept her stable from a psychiatric point of view), '[s]he was however very suspicious of support workers, which might be a manifestation of her illness', and '[t]his serves as evidence that she does indeed have schizophrenia'.

4. In the report, Ms L indicated that JCB did not have the cognitive capacity to make reasonable decisions in relation to complex financial decisions or legal decisions, although considered that JCB had cognitive capacity to make reasonable decisions in relation to simple financial decisions.

5. Ms L stated JCB presented with a degree of executive dysfunction, poor insight, impulsivity and facile reasoning, and for these reasons did not believe JCB was capable of complex financial decision-making.

6. For the same reasons, Ms L held concerns for JCB's ability to make decisions about legal matters which were inherently complex and required considered and informed thought.

7. However, Ms L found that JCB's learning and memory were intact as was her language function, and she therefore believed that JCB was capable of simple decision-making with regard to her finances.

8. As to personal decision-making, Ms L indicated that JCB did not have the capability to make reasonable decisions in relation to medical treatment and procedures or decisions about services and was unsure whether JCB had the capability to make reasonable decisions about accommodation.

9. Ms L indicated that JCB had proved that she made decisions to refuse care and deny necessary services based on her suspicions, which might be a symptom of her schizophrenia.

10. Ms L also stated that while JCB was able to make basic decision about where she would live, Ms L was concerned that JCB was vulnerable and that her decision-making might be influenced by people around her.

11. Ms L stated that JCB was able to express her wishes in regards to accommodation which seemed reasonable, however was unsure JCB would be capable of executive plans to procure accommodation.

Ms H

1. Ms H had known JCB for 5 months at the time of completing her report, and co-ordinated JCB's care, including depot administration, as part of the community mental health service since 8 November 2023.

2. Ms H indicated that JCB also saw Dr W from the community mental health service for psychiatric reviews, and a general practitioner in South Australia.

3. In the report, Ms H was unable to address issues of JCB's cognitive capacity to make financial decisions as she did not have enough information or knowledge of JCB's capacity.

4. Ms H stated that JCB was accepting of her care coordination as far as accepting transport to the clinic for depots and medical reviews, although noted that JCB had a NDIS package which was currently not being utilised.

5. Ms H had put a new support co-ordinator in contact with JCB.

6. Ms H stated that JCB was currently on the waiting list with Housing SA, and believed JCB required her own dwelling as her current living situation was not conducive to her physical health and posed a health and safety risk to JCB.

7. JCB was living in a household which was quite chaotic at times with five people living in a confined space, and also having to walk upstairs to her bedroom.

8. Ms H stated that JCB had insight into her medical conditions, but had limited insight into her psychiatric condition and did not think she had schizophrenia.

9. Whilst JCB attended the clinic for depot injections, she required multiple prompts including phone messages, text messages and home visits to do so.

OL

1. OL had known JCB for 3 months at the time of completing her service provider report.

2. As to the nature of JCB's relationship with her family, OL stated that it appeared that JCB was at high risk of exploitation and financial abuse, and that there had been a multitude of impulsive demands from JCB which were instigated by CCB, for example, demanding to buy a car when CCB decided to pawn her car and had no car for some days.

3. OL also stated that CCB had advised that JCB had a lot of Redress funds that could buy JCB a house.

4. OL was aware of reports that CCB was arrested for drink driving.

5. As to JCB's capacity to make financial decisions, OL stated that JCB was unable to make complex financial decisions or forward planning, with J (another support worker) often reporting that JCB had no food to eat even though she got paid three times during the week.

6. OL stated that JCB prioritised smokes over anything else, and that once JCB got paid, she strove to ensure that CCB lacked nothing.

7. OL stated that JCB did not make financial decisions in her best interest especially when there were others in need around her and considered JCB vulnerable to exploitation by other people especially family members and those she cared for.

8. In terms of JCB's accommodation needs, OL stated that JCB was evicted from a motel on 1 March 2023 where she had been living since October 2022 for cooking in her room.

9. OL stated that JCB had been attempting to secure housing through the South Australian Housing Authority but was adamant about staying in a suburb which was quite expensive so that she could live close to CCB, who had recently been accepted into a community housing programme.

10. OL stated that JCB believed there was nothing wrong with her, only cancer in her stomach, and considered JCB to be quite vulnerable and at risk of exploitation, had poor medication management, was quite sporadic and impulsive and was at risk of homelessness.

Functional care needs assessment

1. Ms K stated that the purpose of her assessment on 15 March 2023 was to determine JCB's current functional capacity, whether JCB's current supports remained appropriate, to recommend suitable housing and to make recommendations to increase JCB's independence and quality of life.

2. At the time Ms K conducted her assessment, she noted that JCB had recently moved to Adelaide, and was then currently homeless and moving between multiple short-term accommodation such as respite accommodations and motels, funded through her savings held by the Public Trustee, although also noting JCB was struggling to afford such accommodation.

3. Ms K noted that JCB moved to Adelaide with nothing but a few clothes and toiletries, and had no furniture or appliances, and that she had a daughter, aunt and cousin who lived in Adelaide.

4. JCB had reported that she saw her family regularly but that she had disagreements with her aunt and cousin, and the support worker at the time who participated in the assessment, J, also reported that JCB did not always get along with her daughter either.

5. At the time of the assessment, J had been assisting JCB three times a week for up to 12 hours per week with shopping, appointments, community engagement, budgeting and cleaning, although considered JCB needed increased support as this had not been sufficient to meet JCB's needs.

6. Ms K assessed JCB as having moderate difficulty in her overall daily functioning, based on her overall average domain score of 3.0 out of 5 under the WHO Disability Assessment Schedule 2.0 (WHODAS 2.0).

7. In particular, she was assessed as suffering from severe difficulty in the areas of mobility, life activities and participation in society.

8. A Montreal Cognitive Assessment was also conducted, in which JCB scored 22/30, indicating a mild cognitive impairment, with demonstrated difficulties in the areas of executive/visual spatial function, attention and language.

9. Under the Functional Independence Measure (FIM) used to measure activity limitation due to the level of assistance required to perform basic life activities effectively, JCB scored the lowest in money management (score 1 out of 7), requiring total assistance, noting that JCB's money was managed by the Public Trustee and that in the past she had demonstrated poor planning and management of her funds, leading to significant debt, and being taken advantage of by others.

10. Ms K stated that there was no likelihood of change to this level of limitation as JCB's had reduced insight into her capacity, poor planning and decision-making skills due to the nature of her condition, and recommended that her funds continue to be managed by the Public Trustee.

11. Ms K also assessed JCB as requiring maximal assistance with chores/housekeeping (score 2 out of 7), and moderate assistance with managing medication, shopping, food preparation, using transport, and social participation/community participation (score 3 out of 7).

12. Ms K also identified that JCB displayed behaviours of concern in previously engaging in destructive and disruptive behaviours that have put her health and tenancies at risk.

13. Ms K recommended that JCB be provided with specialist disability housing and supported independent living support of a minimum of 1:1 and 1:2 support.

14. In making this recommendation, Ms K considered that JCB required consistent daily support to maintain her participation and capacity in daily activities and reduce risks to herself and her support workers, recognising that JCB had a very limited informal support network, and with JCB's relationship with her daughter in Adelaide being strained at times, her daughter would be unable to provide JCB with consistent support.

Legal principles

Guardianship and administration orders

1. Section 4 of the Act sets out the principles which the Tribunal is bound to observe in dealing with proceedings commenced under the Act.

2. The primary concern of the Tribunal is the best interests of, relevantly, any person for whom a guardianship order and/or administration order has been made (represented person): s 4(2) of the Act.

3. Further, the following relevant principles requires the Tribunal to recognise and respect a person's freedom of decision and action.

4. Firstly, every person is presumed to be capable of:

   (a)looking after their own health and safety;

   (b)making reasonable judgments in respect of matters relating to their person;

   (c)managing their own affairs; and

   (d)making reasonable judgments in respect of matters relating to their estate;

   unless the contrary is proven to the Tribunal's satisfaction: s 4(3) of the Act.

1. Secondly, a guardianship or administration order shall not be made if the needs of the proposed represented person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action: s 4(4) of the Act.

2. Thirdly, if a limited guardian or administrator is appointed, the order should be made in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances of the person's freedom of decision and action: s 4(6) of the Act.

3. Finally, in considering any matter relating to a represented person the Tribunal should, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions: s 4(7) of the Act.

4. Guardianship and administration orders can be made under s 43(1) and s 64(1) of the Act, respectively, upon application made under s 40 of the Act.

5. These orders shall be reviewed within the review period specified in the orders (s 84 of the Act) or upon conditions which mandate a review (s 85 of the Act), or upon application for a review (s 86 of the Act).

6. Relevantly, the Public Advocate can apply for a review of a guardianship order or an administration order under s 86(1)(a) of the Act.

7. A guardian or administrator may also apply for a review under s 86(1)(b) of the Act, although their eligibility to apply is limited to the guardianship or administration order under which they act: s 86(2) of the Act.

8. Upon a review of a guardianship or administration order, the Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order (s 90(1) of the Act) or amend the order (s 90(1)(a) of the Act), or revoke the order or revoke and substitute another order for it (s 90(1)(b) of the Act).

9. The considerations for making, and re-making upon review, a guardianship order and administration order are set out in s 43 and s 64 of the Act respectively.

10. Under s 43(1) of the Act, the Tribunal may appoint a guardian for a person if satisfied that the person has attained the age of 18 years old and is:

    (a)incapable of looking after their own health and safety;

    (b)unable to make reasonable judgments in respect of matters relating their person; or

    (c)in need of oversight, care or control in the interests of their own health and safety or for the protection of others; and

    (d)is in need of a guardian.

11. The Tribunal may appoint an administrator for a person if satisfied that the person is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or part of his estate, and is need of an administrator of his estate: s 64(1) of the Act.

12. The considerations for suitability of proposed guardians and administrators are set out in s 44 and s 68 of the Act respectively.

13. Relevantly, an individual of or over 18 years of age and who has consented to act, may be appointed to act as guardian or administrator if, in the opinion of the Tribunal, they will act in the best interests of the represented person and is otherwise suitable to act as guardian or administrator of the estate of the represented person: s 44(1) of the Act (in respect of guardianship) and s 68(1) of the Act (in respect of administration) respectively.

14. For the purpose of establishing suitability of an administrator, the Tribunal shall take into account as far as possible the following factors under s 44(2) of the Act:

    (a)the compatibility of the proposed appointee with the represented person and with the represented person's guardian (if any);

    (b)the wishes of the represented person; and

    (c)whether the proposed appointee will be able to perform the functions vested in them.

15. The factors to be taken into account for the purposes of establishing suitability of a guardian are nearly identical, with necessary modifications, to those of an administrator in [161] above, save that there is an additional factor to be considered, which is the desirability of preserving existing relationships within the represented person's family: s 44(2)(a) of the Act.

16. In the exercise of their authority, the Act requires a guardian to act according to their opinion of the best interests of the represented person, subject to any direction by the Tribunal: s 51(1) of the Act.

17. Without limiting the broad discretion afforded under s 51(1) of the Act, s 51(2) nonetheless provides for indicia of acts which are treated to be in a represented person's best interests; that is, where a guardian has acted, as far as possible:

    (a)as an advocate for the represented person;

    (b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;

    (c)in such a way as to encourage and assist the represented person to become capable of caring for themselves and of making reasonable judgments in respect of matters relating to their person;

    (d)in such a way as to protect the represented person from neglect, abuse or exploitation;

    (e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;

    (f)in a manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;

    (g)in such a way as to maintain any supportive relationships the represented person has; and

    (h)in such a way as to maintain the represented person's familiar culture, linguistic and religious environments.

18. Similarly, s 70 of the Act provides that the administrator shall act according to their opinion of the best interests of the represented person.

19. The indicia of acts of an administrator which are in the best interests of a represented person are in near equivalent terms to those in s 51(1) of the Act, with necessary modifications such as confining advocacy to that as it relates to the represented person's estate, and confining protection to that as it relates to financial neglect, abuse or exploitation (s 70(2)(a) and (d) of the Act).

20. In considering who to appoint as guardian and administrator, the Tribunal shall generally not appoint the Public Advocate as guardian or administrator unless there is no other person (and, in the case of an administrator, a corporate trustee) who is suitable and willing to act: s 44(5) of the Act (in the case of guardianship) and s 68(5) of the Act (in the case of administration).

21. In Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475, the Full Court had occasion to consider the legislative intent and primary objectives of the Act in addressing questions referred to the Full Court about whether the Guardianship and Administration Board should consent to a person under administration making any disposition in respect of any part of their estate by will where authorised to do so by their administrator pursuant to s 77(1) of the Act.

22. His Honour E M Heenan J (with whom Anderson, Steytler, Miller and McLure JJ agreed) considered, at [43] - [44] that:

    …it seems essential to appreciate that [the Act] is intended to "provide for the guardianship of adults who need assistance in their financial affairs…and to make provision for a power of attorney to operate after the donor has cased to have legal capacity, and for connected purposes" (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.

    …The emphasis is on conserving the property and financial resources of the disabled person to ensure they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage, or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration.

Jurisdiction in respect of non-resident person

1. Section 67(1) of the Act provides that an administration order may be made under s 64(1) in respect of a person who is not resident or domiciled in Western Australia, but any such order is limited to the person's estate within Western Australia.

2. This provision puts the Tribunal's jurisdiction to make an administration order in respect of an incapable person's property in the State beyond doubt, even though the person is neither resident nor domiciled in the State:  NCK [2004] WAGAB 6 (NCK) at [54].

3. The term 'estate' is not defined in the Act, but has been found to bear its ordinary meaning of the collective assets and liabilities viewed as an aggregate: SAL v JGL [2016] WASAT 63 at [23] (SAL).

4. In NCK, the Full Board of the Guardianship and Administration Board also considered that there was jurisdiction under the Act to make a guardianship order over a person whose country of domicile was Australia and whose usual place of residence at all material times was Western Australia: see [30] and [55] - [56].

5. The Full Board also explored the concept of domicile for the purposes of establishing whether the country of domicile of the subject in that case was Australia and whether the subject was resident in Western Australia:  see [33] - [42].

6. Significantly, the Full Board found that the domicile of choice could only be made by a person of independent capacity, and could not be changed if a person, by reason of mental illness, was incapable of the required intention to settle in a country indefinitely as long as the incapacity persisted: see [40].

Recognition of interstate guardianship and administration orders

1. Sections 44A and 83D of the Act set out interjurisdictional arrangements in relation to recognition of interstate guardianship and administration orders.

2. These provisions allow for relevant orders made under the laws of another State or Territory relating to guardianship (in the case of s 44A) and administration of estates (in the case of s 83D) to be recognised under an interstate arrangement in respect of persons who either enter this State from that State or Territory, or enter that State or Territory from this State.

3. Where such interstate arrangements are in effect, relevant orders in force under the laws of the other State or Territory has, while the person to whom it relates is in this State, the same force and effect according to its terms as a guardianship order or administration order made under this Act: s 44A(3) of the Act (in the case of a guardianship order) and s 83D(3) of the Act (in the case of an administration order).

4. By gazettal notices made on 21 April 1998, the Attorney General for the State of Western Australia entered into arrangements with the Minister for Human Services for the State of South Australia under s 44A and s 83D of the Act, by which it was agreed by that the guardianship and administration orders made under the Guardianship and Administration Act 1993 (SA) in respect of adult persons who enter Western Australia be recognised in Western Australia.

5. An interstate guardianship or administration order cannot be recognised under s 44A and s 83D of the Act unless the person has 'entered' Western Australia since the interstate order was made: see SAL at [13].

Full faith and credit provisions

1. Section 51(xxv) of Commonwealth of Australia Constitution Act (Constitution) confers legislative power on the Commonwealth Parliament with respect to '[t]he recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States'.

2. Section s 118 of the Constitution provides that '[f]ull faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State'.

3. Section 185 of the Evidence Act 1995 (Cth) (Evidence Act) provides that:

   All public acts, records and judicial proceedings of a State or Territory that are proved or authenticated in accordance with this Act are to be given in every court, and in every public office in Australia, such faith and credit as they have by law or usage in the courts and public offices of that State or Territory.

4. In general, the Evidence Act provides for the Evidence Act to apply to all proceedings in a federal court by virtue of s 4(1) of the Evidence Act, although the notes to s 4(1) identify some provisions in the Evidence Act which extend beyond proceedings in federal courts - relevantly, those dealing with extension of specific provisions to cover proceedings in all Australian courts (s 5) and with faith and credit to be given to documents properly authenticated (s 185).

5. Section 5 of the Evidence Act extends the application of only certain provisions of the Evidence Act to all proceedings in an 'Australian court' which is relevantly defined to include any person or body that is authorised by an 'Australian law' (in turn, defined to include a State law) to hear, receive and examine evidence.

6. Significantly, s 185 of the Evidence Act is not a provision to which s 5 of the Evidence Act applies.

7. It is said that to give 'full faith and credit' to something:

   … does not, as a matter of ordinary language, mean merely to acknowledge the fact that it exists.  Thus, to give full faith and credit to a person's word does not mean merely to accept the fact that the person says something.  It means to accept and act upon the content of what he says.  To give full faith and credit to a judgment means, as a matter of ordinary language, not only to recognize its existence but, while it stands, to accept and abide by its contents …

   …

   The directive of s. 118 must, of course, be read within its constitutional context.  That means that it must be read as applying only to laws and Acts to the extent that they are not invalid either on the ground that they purport to operate beyond State legislative competence or on the ground that they are inconsistent with a valid Commonwealth law.

   Breavington v Godleman (1998) 169 CLR 41; [1988] HCA 40 at 129 ­ 130 per Deane J.

8. G v G (1986) 64 ALR 273; (1985) 10 FamLR 718 concerned an order which had been made by the Supreme Court of Queensland concerning custody of a child, and an application was made to the Supreme Court in New South Wales to make a different order.

9. In that case, McLelland J accepted (at 276 of ALR, 719 of FamLR) that s 118 of the Constitution Act and s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth) (now repealed) (Recognition Act), the predecessor provision to s 185 of Evidence Act, required the Supreme Court of New South Wales to treat the Queensland order as having the same degree of finality and conclusiveness (but not more) as that order would have in Queensland.

10. However, as a custody order in respect of a child was never regarded as final or conclusive in either Queensland or New South Wales, and the question of the proper custody of a child was always open for reconsideration at a later stage, notwithstanding the existence of an order for custody which purported to be indefinite in duration, his Honour found that the requirement to afford 'full faith and credit' did not preclude the court from making a custody order at variance with the order of the Supreme Court of Queensland.

11. In making the determination, his Honour acknowledged that there had been no opportunity for a full hearing even on an interim basis, and made interim orders as to custody which departed from the Queensland orders subject to future orders by the Supreme Court of Queensland:  see 278 of ALR, 720 of Fam LR.

12. In Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 517 (Bond Brewing), the Supreme Court of Victoria had made an ex parte order appointing receivers and managers of Bond Brewing and various of its subsidiaries.

13. On the day the order was made, Bond Brewing applied to the Supreme Court of Western Australia for an order restraining the receivers from acting until a further application could be made to the Supreme Court of Victoria.

14. Whilst Ipp J found that there was cogent evidence that the grant of the Victorian order was a substantial injustice, his Honour dismissed the application 'taking into account the very real difficulties posed by s 18 of the [Recognition Act], the tenuous nature of the protection the plaintiffs would obtain from the grant of an order and also the desirability of not interfering with an order of a Court of another State save in a clear case' (at 529).

15. In terms of enforcement of judgments, s 105(2) of the Service and Execution of Process Act 1992 (Cth) (SEPA Act) provides that a registered judgment has the same force and effect and may give rise to the same proceedings by way of enforcement, as if the judgment had been given, entered or made by the court in which it is registered.

16. However, the term 'judgment' specifically excludes 'an order relating to the guardianship of a person who is incapable of managing his or her personal affairs' and 'an order relating to the management of the property of a person who is incapable of managing that property':  s 3(1) definition of 'judgment' under the SEPA Act.

17. There is a divergence of views as to whether s 185 of the Evidence Act applies to orders made in tribunal proceedings.

18. In EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 at [21], Young J considered that while not knowing of any case directly in point, his Honour determined that proceedings before the Guardianship Board in Victoria did not constitute 'judicial proceedings' within the meaning of s 118 of the Constitution.

19. His Honour relied on the decision of Powell J in Re an Alleged Incapable Person FCC and the Protected Estates Act 1983 (1990) 19 NSWLR 541 as reinforcing his Honour's view, although that decision concerned orders of the Supreme Court of Queensland to which Powell J declined to afford full faith and credit on the basis that the Queensland orders were not made upon the valid exercise of powers.

20. In contrast, Campbell J in Re PQR and the Protected Estates Act 1983 [2005] NSWSC 729 at [20] - [21] found that orders made by the Guardianship and Management of Property Tribunal in ACT, appointing managers for the estate of PQR, are entitled to full faith and credit throughout Australia, and his Honour revoked an inconsistent order made by the Supreme Court of New South Wales committing management of the estate of PQR to the Protective Commissioner.

21. In Ocalewicz v Joyce [2012] NSWSC 1163 (Ocalewicz), Macready AsJ had to consider whether proceedings before the South Australian Guardianship Board amounted to 'judicial proceedings' for the purpose of s 185 of the Evidence Act.

22. His Honour considered (at [21]) that whilst the Guardianship Board fell within the definition of 'Australian court' in the Dictionary to the Evidence Act, it did not follow from this that the Board's proceedings were 'judicial proceedings'.

23. His Honour (at [25]) considered the definitions of 'judicial proceedings' and 'judicial' within the Encyclopedic Australian Legal Dictionary as 'a proceeding instituted in a competent court of law to seek relief, remedy, or redress' (as to the former) and 'a description of that which emanates from a judge or judges when exercising the power to determine liability or otherwise affect the legal rights of subjects through the application of law to particular facts and circumstances' (as to the latter).

1. His Honour also considered (at [26]) the definition of 'judicial proceedings' in the Crimes Act 1914 (Cth) (Crimes Act) as '(a) a proceeding in or before a court; or (b) a proceeding:  (i) before a body, or a person, acting under a law of … a State; and (ii) in which evidence may be taken on oath'.

2. His Honour also relied (at [27]) on the definition given to 'judicial determination' in Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10 (Brandy) as 'an enforceable decision reached by applying the relevant principles of law to the facts as found'.

3. His Honour then considered the relevant provisions of the Guardianship and Administration Act 1993 (SA) in the constitution of the Board and the powers of the Board in conducting hearings.

4. Relevantly, his Honour found that the fact that the Board is not bound by the rules of evidence would not be sufficient to make the proceedings non-judicial (at [31]), and took into account that the Board was constituted in part by a legally trained decision-maker, that the Board was entitled to take evidence on oath, and, in reaching its decision, applied the terms of the South Australian Act, and that the Board's orders were enforceable in South Australia and determined the rights of the applicant and of other persons (at [34]).

5. His Honour ultimately concluded that s 185 of the Evidence Act was applicable to the Board's order such that it should be given full force and effect throughout Australia: Ocalewicz at [35].

Principles of statutory construction

1. The focus of statutory construction must begin with the text of the legislative provisions, having regard to their context and purpose: Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police (2020) 56 WAR 102; [2020] WASCA 157 (ALHG) at [151] per Buss P (with whom Quinlan CJ and Vaughan J relevantly agreed).

2. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning:  Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78].

3. Section 18 of the Interpretation Act 1984 (WA) provides for the construction of a written law which promotes the purpose of object underlying the written law to be preferred to another construction which does not promote that purpose or object, where the two constructions are otherwise open:  see ALHG at [159] per Buss P.

Consideration

Issue 1 - does s 83D of the Act apply to recognise the SACAT orders?

1. Section 83D of the Act and the gazettal notice of 21 April 1998 make it clear that SACAT administration orders made in respect of adult persons who enter Western Australia shall be recognised in Western Australia, and that while the person is in Western Australia, the SACAT administration orders will have the same force and effect according to its terms as an administration order made under the Act.

2. As no party submits, and there is no evidence to establish, that JCB has entered Western Australia since the SACAT administration orders were made in June 2024, s 83D of the Act has no application to give recognition to the SACAT orders.

Issue 2 - does the Tribunal have the jurisdiction to review a guardianship or administration order where a represented person resides outside of Western Australia?

1. In the case of a represented person like JCB found to be residing outside of Western Australia, based on NCK, this Tribunal retains the jurisdiction to make an administration order as to JCB's estate in Western Australia and to make a guardianship order if satisfied that JCB's residence has remained in Western Australia.

2. As no party has submitted, nor provided evidence, that JCB was incapable of forming the requisite intention to change her residence from Western Australia to South Australia, I am satisfied that her residence has changed to South Australia and there is now no jurisdiction for the Tribunal to make a guardianship order in respect of JCB.

3. As to whether JCB has an estate in Western Australia to ground a basis for making an administration order, I am satisfied that, at a minimum, the funds held in the Public Trustee's trust account for the represented person, as well as JCB's rights to claim compensation monies under her criminal injuries compensation claim, constitute estate within Western Australia over which an administration order can be made.

Issue 3 - what effect can SACAT orders have in Western Australia?

1. Based on my analysis of legal authorities and relevant guiding principles under the Act, I do not consider myself bound to give full faith and credit to the SACAT orders for the following reasons.

2. Firstly, the case authorities are not settled on whether s 185 of the Evidence Act applies to Tribunal proceedings and orders, with conflicting views expressed by the Supreme Court of New South Wales.

3. Secondly, I have some reservations that Tribunal proceedings fall within the definition of 'judicial proceedings' under s 185 of the Evidence Act.

4. Had the legislature intended for s 185 of the Evidence Act to apply to Tribunal proceedings then s 185 would have been included in the extended application provision in s 5 of the Evidence Act, which can extend to tribunals which are authorised by a State law to hear, receive and examine evidence.

5. The rationale in Ocalewicz for finding that 'judicial proceedings' encompass Tribunal proceedings relies, in part, on the definition of 'judicial proceedings' in the Crimes Act, which definition depends upon such proceedings being conducted where evidence may be given under oath.

6. Upon closer examination, such definition appears in the part of the Crimes Act which provides for offences related to the administration of justice, and is primarily directed to such purposes only.

7. Such definition is necessary to cater for the creation of the crimes such as perjury, and so care should be taken to adopt such a definition in other legislative regimes in which the term 'judicial proceedings' appears.

8. Further, there is difficulty in applying the Brandy indicia of 'judicial proceedings' - that being enforceable decisions - as the Tribunal's orders can only be enforced where orders are first filed with a court of competent jurisdiction (in the case of monetary orders) or the Supreme Court (in the case of non-monetary decisions), and the relevant court has taken the order or decision to be an order or decision of the relevant court, under procedures established in s 85 and s 86 of the State Administrative Tribunal Act 2004 (WA) respectively.

9. Ultimately, the deliberate omission of s 185 of the Evidence Act in the extended application of the Evidence Act to tribunal proceedings, through s 5 of the Evidence Act, is, in my opinion, more persuasive to the view that s 185 was never intended to apply to tribunal proceedings.

10. Finally, should I be wrong about my construction, I consider that there remains discretion as to how the SACAT order is to be given 'full faith and credit'.

11. I found the cases of Bond Brewing and G v G particularly instructive as, in both cases, their Honours' minds were turned to whether, in the particular circumstances of the cases, full faith and credit should be given.

12. In Bond Brewing, Ipp J ultimately found that the application of s 185 to be difficult to overcome, but not without having also considered that the protection from the grant of an order in Western Australia would have been tenuous.

13. In G v G, McLelland J took into account the legislative context in which orders were sought - that is, that the question of the proper custody of children was always open for reconsideration despite orders that purport to be indefinite in duration - in finding that the Supreme Court of New South Wales retained discretion to make orders which differed from existing orders of the Supreme Court of Queensland.

14. The legislative context in which custody of children are determined is similar to that of guardianship and administration over incapable people under the Act, where the Act provides for reviews of orders by which matters such as capacity of a person and the need for orders are required to be re-assessed against the principles under s 4 of the Act.

15. As such, irrespective of whether s 185 of the Evidence Act applies, for reasons set out in [234] - [249] below, I am sufficiently concerned that the SACAT orders will not operate in JCB's best interests and that an administration order is necessary to protect JCB's financial interests, such as to be satisfied that I retain the discretionary power to make an administration order in respect of JCB's estate in Western Australia under the Act.

Issue 4 - if the Tribunal has powers of review, how should the Tribunal exercise its powers under s 90 of the Act?

1. On the basis of my finding above at [215] that there is no jurisdiction to sustain a guardianship order in relation to JCB, I will revoke the guardianship order made on 13 September 2021.

2. On the basis of my findings above as considered in [216] and [217] - [225] that I am not bound to give full faith and credit to the SACAT orders, I find that I retain the discretionary power to review the administration order under s 90 of the Act.

3. As to the threshold issues of mental disability and capacity, I am satisfied on the evidence of medical professionals and service providers, particularly that of Ms L, that JCB suffers from schizophrenia which continues to affect her cognitive capacity to make complex financial and legal decisions for herself.

4. In coming to this view, I have also taken into account the opinion by Ms K in her functional care needs assessment that JCB requires total assistance with money management.

5. I am also satisfied that the management of the funds held by the Public Trustee in trust for JCB, at that magnitude, in contrast to her level of fortnightly disability pension, constitutes complex financial decision-making with which JCB would struggle in light of her cognitive deficits.

6. That level of funds needs to be sustained for her benefit and maintenance and balanced with other competing financial needs.

7. Further, given her vulnerability with prioritising the wishes of her family over her own needs, I do not find that she has capacity to manage the funds currently held by the Public Trustee, nor the impending compensation from her criminal injuries compensation claim.

8. I therefore find that JCB by reason of mental disability does not have capacity to make reasonable judgments in respect of matters relating to part of her estate.

9. As to whether JCB needs an administrator for that part of that estate, I find that JCB is financially vulnerable and does not have the informal supports to help her maximise and utilise the benefits of her funds for her current and future financial needs.

10. I fully accept the evidence of the Public Trustee that CCB has attempted to seek access to JCB's funds in circumstances not demonstrated to have been for JCB's benefit, such as seeking funds for a car for herself and seeking reimbursement for expenses that have not been proven to have been for JCB's benefit.

11. On the evidence, I am not satisfied that CCB will be able to act in JCB's best interests, as I find that CCB will not be capable of acting in a way such as to protect JCB from financial neglect, abuse or exploitation (which is one of the indicia of 'best interests' decisions under s 70(2) of the Act).

12. Further, I am not satisfied that, as administrator of JCB's estate, CCB will be able to act in a way which promotes the objectives of the Act, which is to conserve the resources and property of JCB for JCB's own advantage, or to at least scrutinise all transactions against what is justifiable or provident having regard to the continuing and future needs of JCB.

13. I find that CCB has her own financial needs and that she will find it difficult to apply an impartial scrutiny towards any proposed use of JCB's funds to promote JCB's own current and future needs, welfare and enjoyment over that of her own.

14. I also accept the evidence of the Public Trustee and Public Advocate that CCB is not a suitable advocate to act as administrator of JCB's estate, as communications with CCB can at times be difficult, erratic and abusive, and that CCB will find it difficult to manage the criminal injuries compensation claim process.

15. Given my concerns about CCB suitability as administrator of JCB's estate, I am not satisfied that it would be in JCB's best interests to, effectively, revoke the current administration orders on the basis of the SACAT orders being in place as I do not consider that the current SACAT orders can act as less restrictive means to meet JCB's needs.

16. I am not satisfied that SACAT had the same evidence as that before me to assess CCB's suitability, and so do not consider the SACAT orders capable of protecting JCB's financial interests.

17. The ultimate consideration in any proceedings under the Act is the best interests of JCB, and no principle regarding full faith and credit, even if applicable, should displace this fundamental concern.

18. I find that JCB is in need of an administrator in respect of the current funds held by the Public Trustee and expected criminal injuries compensation funds.

19. I therefore find that it is necessary, in the best interests of JCB, to re-appoint the Public Trustee as limited administrator of JCB's estate in Western Australia with plenary powers as to the funds currently held by the Public Trustee in trust for JCB and the funds expected to be received in respect of her criminal injuries' compensation claim.

20. Notwithstanding my above findings, I accept that a likely consequence of having inconsistent orders between two tribunals is uncertainty and unease about the operation of both sets of orders.

21. For that reason, I will set a review period of 13 July 2025, which is one month after the SACAT review period.

22. This will allow CCB the opportunity to respond to the Public Trustee's concerns as expressed in these proceedings.

23. I also invite the Public Trustee to consider applying to be involved in the SACAT review proceedings so that consistent submissions and evidence could be submitted within both jurisdictions.

24. More comprehensive evidence of what is explored next before SACAT will also better inform this Tribunal as to how it should determine the next review hearing.

Conclusion

1. For reasons set out above, I will revoke the guardianship order made in respect of JCB, and revoke and substitute the administration order by appointing the Public Trustee as JCB's limited administrator with all the powers and duties conferred by the Act on a plenary administrator in respect of the funds currently held by the Public Trustee in trust for JCB and funds expected to be received in respect of JCB's criminal injuries compensation claim.

Orders

The Tribunal makes the following orders:

The Tribunal declares that the represented person, [JCB], is:

(a)unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to part of her estate; and

(b)in need of an administrator of her estate.

The Tribunal orders:

1.The guardianship order made on 13 September 2021 is revoked.

2.The administration order made on 3 May 2022 is revoked and substituted with the following:

3.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA) on a plenary administrator in respect of the funds currently held by the Public Trustee in trust for the represented person and funds expected to be received in respect of the represented person's criminal injuries compensation claim.

4.The administration order is to be reviewed by 13 July 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS K Y Loh, MEMBER

2 JANUARY 2025