JCB

Case [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State and Territorial Laws and Records Recognition Act 1901 (Cth) (repealed), s 18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…

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Details
AGLC
JCB [2025] WASAT 1
Case
[2025] WASAT 1
Decision Date

CaseChat Overview and Summary

The case of JCB involved a dispute concerning the administration of an estate under the Guardianship and Administration Act 2000 (WA). The represented person had been moved from Perth to Adelaide, and the South Australian Civil Administration Tribunal (SACAT) had issued administration orders due to concerns of financial exploitation. The primary legal issue was whether the Western Australian court had jurisdiction to make an administration order for a non-resident's estate and whether there was an obligation to give 'full faith and credit' to the SACAT orders.

The court examined the jurisdictional scope under s 67(1) of the Guardianship and Administration Act 2000 (WA), which allows for the making of an administration order concerning a person's estate within Western Australia, irrespective of the person's residence or domicile. The court also considered the implications of s 185 of the Evidence Act 1995 (Cth), which mandates that public acts, records, and judicial proceedings of a State or Territory be given full faith and credit in every Australian court. However, the court noted that s 185 does not extend to all Australian courts as per s 5 of the Evidence Act, thus limiting its application.

In reaching its decision, the court highlighted that the primary objective of the Guardianship and Administration Act 2000 (WA) is to protect the incapacitated person's financial resources and ensure they are available for their own needs. Given that the represented person's estate included assets within Western Australia, the court found it had jurisdiction to make an administration order. However, the court also concluded that the obligation to give 'full faith and credit' to SACAT orders did not preclude it from making independent decisions concerning the administration of the estate within Western Australia. The court's reasoning was grounded in the need to balance the protection of the represented person's interests with the jurisdictional considerations of the applicable laws.

The court ultimately decided that while it must respect the administration orders made by SACAT, it was not bound by them in making its own orders concerning the represented person's estate in Western Australia. This decision ensured that the court could exercise its jurisdiction appropriately while considering the represented person's best interests.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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. 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. 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]. 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).