MM

Case [2025] WASAT 103 23 September 2025

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MM [2025] WASAT 103
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   24 FEBRUARY 2025, 11 APRIL 2025 AND DETERMINED ON THE DOCUMENTS
DELIVERED          :   23 SEPTEMBER 2025
FILE NO/S:   GAA 6673 of 2024

MM
Proposed Represented Person
YY
Applicant
SS
Third Party

Catchwords:

Administration - Allegations of coercive control and elder abuse - Presumption of capacity not displaced - Expert evidence - Briefing expert - Application dismissed - Costs application - Costs sought by Applicant for cost of expert report - Costs sought by Third Party for legal fees - Applications for costs dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 16(4), s 65, s 112(1), s 112(4)
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4), s 34, s 35, s 46, s 64(1), s 64(2), s 64(3), s 66, s 67, s 87, s 87(1), s 87(2), s 87(3)

Result:

Application for administration dismissed
Application for costs dismissed

Category: B

Representation:

Counsel:

Proposed Represented Person	:	In Person
Applicant	:	In Person
Third Party	:	Mr L Palmos on 24 February 2025 and Mr H Playford on 11 April 2025

Solicitors:

Proposed Represented Person	:	N/A
Applicant	:	N/A
Third Party	:	Palmos Legal

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

Briginshaw v Briginshaw (1938) 60 CLR 336
G v K [2007] WASC 319
GC and PC [2014] WASAT 10
GD and AD [2005] WASAT 203
LC and JS [2007] WASAT 127
Legal Services and Complaints Committee and Robertson [2023] WASAT 127
Legal Services and Complaints Committee and Robertson [2023] WASAT 127 (S)
LP [2020] WASAT 25
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Robertson -v- Legal Services and Complaints Committee [2025] WASCA 92
Stender and City of Cockburn [2025] WASAT 44
T [2018] WASAT 128
XYZ (Guardianship) [2007] VCAT 1196

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

MM is aged in her early 80s and has three children. Her daughter YY is the eldest child and the applicant in this matter. MM's second child is her son SS. YY and SS have a highly acrimonious relationship. MM's youngest child, her son VV, is an NDIS participant and lives with MM. MM owns the home where she lives with VV (MM's Home) and an investment property (Property) where SS lives.
YY is seeking to be appointed MM's administrator as she says MM is not capable of making complex financial decisions. YY believes MM is a victim of elder abuse and alleges that SS coerced MM to agree to sell 50% of the Property to him. YY is concerned that MM will not be able to support herself and VV in the future without rental income from the Property. YY also believes that the solicitor that acted for MM when negotiating the terms of the sale had a conflict of interest as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MM [2025] WASAT 103
Case: [2025] WASAT 103
Decision Date: 23 SEPTEMBER 2025

CaseChat Overview and Summary

The matter before the court involved an application for review of a decision made under the Guardianship and Administration Act 2000. The Applicant, who is the daughter of the Principal, sought a review of the decision of the Guardianship Division of the Court, which had determined that the Principal had capacity to make certain decisions regarding her personal and financial affairs. The Third Party, who is a family member of the Principal, intervened in the proceedings and opposed the application for review.

The legal issues before the court were whether the presumption of capacity of the Principal had been displaced by evidence of coercive control and elder abuse, and whether the Applicant was entitled to costs for the preparation of an expert report and the Third Party was entitled to costs for legal fees incurred in opposing the application for review. The court had to consider the relevant statutory provisions and case law to determine whether the evidence presented by the Applicant was sufficient to displace the presumption of capacity and whether the costs sought were reasonable and necessary.

The court held that the presumption of capacity had not been displaced by the evidence of coercive control and elder abuse. The court found that the evidence presented by the Applicant did not establish that the Principal lacked capacity to make decisions regarding her personal and financial affairs. The court also held that the Applicant was not entitled to costs for the preparation of the expert report as the report was not used in the proceedings and did not assist the court in determining the issues before it. The court further held that the Third Party was not entitled to costs for legal fees incurred in opposing the application for review as the application was not frivolous or vexatious.

The court dismissed the application for review and the applications for costs by the Applicant and the Third Party. The court held that the decision of the Guardianship Division of the Court was correct and that there was no basis for interfering with that decision. The court also held that the costs applications were not meritorious and that the parties should bear their own costs of the proceedings.

Orders