NXD v Office of Public Advocate
[2025] WASC 269
•4 JULY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: NXD -v- OFFICE OF PUBLIC ADVOCATE [2025] WASC 269
CORAM: PALMER J
HEARD: 27 JUNE 2025
DELIVERED : 4 JULY 2025
FILE NO/S: GDA 5 of 2025
BETWEEN: NXD
Appellant
AND
OFFICE OF PUBLIC ADVOCATE
First Respondent
OFFICE OF THE PUBLIC TRUSTEE
Second Respondent
ATTORNEY GENERAL
Intervenor
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: DEPUTY PRESIDENT JACKSON
M. EVANS-BONNER, Senior Member
MS V. HAIGH, Member
File Number : GAA 5182 of 2024
Catchwords:
Appeals - Appeal from decision of State Administrative Tribunal to make guardianship and administration orders - Whether State Administrative Tribunal made error of law - Turns on own facts
Legislation:
Guardian and Administration Act 1990 (WA)
State Administrative Tribunal Act 2004 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Intervenor | : | Mr C Mayne |
Solicitors:
| Appellant | : | In Person |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Intervenor | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460
Medical Board of Australia v Arunkalaivanan [2023] WASCA 117
Scates v State Administrative Tribunal [2011] WASC 319
TL v Office of the Public Advocate [2020] WASC 455
PALMER J:
Introduction
Since March 2021, the appellant (NXD) has been the subject of orders appointing a guardian and administrator in respect to her affairs under the Guardian and Administration Act 1990 (WA) (Guardian and Administration Act). The identity of the guardian and administrator and the scope of their appointment has evolved over time.
Since the orders were imposed, NXD has made a number of applications to the State Administrative Tribunal (Tribunal) to have the orders reviewed.
The most recent of those applications was made to the Tribunal on 23 April 2024 (the Single Member Review Application). That application was decided by the Tribunal (constituted by a single member) on 9 July 2024 and resulted in a further plenary administration order and a limited guardianship order being made in respect of NXD.
NXD was dissatisfied with the decision made by the single member and in October 2024 she sought a review of that decision (the Full Tribunal Review) by the Tribunal constituted by three members (Full Tribunal).
On 25 February 2025, that application for review was heard by the Full Tribunal (constituted by Deputy President Jackson and two other members of the Tribunal). The Full Tribunal reserved its decision.
On 3 March 2025, the Full Tribunal delivered its decision, affirming the plenary administration order and varying the guardianship order. Pursuant to the orders made by the Full Tribunal:
(a) the first respondent (the Public Advocate) is currently appointed as a limited guardian in respect of NXD to:
(i)make treatment decisions for her, subject to div 3 of pt 5 of the Guardianship and Administration Act;
(ii) determine the services to which she should have access; and
(iii) seek legal advice and representation on her behalf, and to advocate in relation to any police investigation, criminal charges or related proceedings; and
(b)the Second Respondent (the Public Trustee) has been appointed plenary administrator of NXD's personal estate.
NXD is dissatisfied with the Full Tribunal's decision and has appealed to this court pursuant to s 19(a) of the Guardianship and Administration Act. She requires leave to appeal.
For the reasons that follow, I will refuse leave to appeal and dismiss the appeal.
The proceedings involving NXD in the Tribunal
The history of orders and review proceedings prior to 2023
NXD first became the subject of orders under the Guardianship and Administration Act as a result of concerns raised by staff at Sir Charles Gairdner Hospital.
On 17 March 2021, staff at Sir Charles Gairdner Hospital applied to the Tribunal for orders under the Guardianship and Administration Act in respect of NXD. They thought that she lacked capacity to make reasonable decisions in her own best interests. At the time she had been admitted as a patient to the Hospital where she had previously had multiple presentations.
On 20 May 2021, the Tribunal made guardianship orders under the Guardianship and Administration Act in respect of NXD, appointing her sister, [redacted], as her limited guardian in respect of medical treatment decisions and service provision.
On 14 July 2021, [redacted] made an application for a review under s 86 of the Guardianship and Administration Act in relation to the guardianship orders made on 20 May 2021 (Tribunal proceedings GAA 2944 of 2021).
On 15 July 2021, separate orders were made appointing [redacted] as plenary administrator of NXD's estate (in relation to GAA 1101 of 2021) and limited guardian in respect of decisions relating to accommodation, medical treatment, service provision, and the power to consent to the use of restraints and restrictive practices (in relation to Tribunal proceedings GAA 2944 of 2021).
On 25 August 2021, [redacted] applied for a review of the orders made on 15 July 2021 under s 85 of the Guardianship and Administration Act on the basis she was no longer able to act as guardian or administrator (Tribunal proceedings GAA 3646 of 2021).
On 27 August 2021, NXD's son, [redacted], was appointed her plenary administrator and the Public Advocate as limited guardian in respect of decisions relating to accommodation, medical treatment, service provision, the power to consent to the use of restraints and restrictive practices, and the power to seek advice and make decisions regarding legal representation.
On 24 January 2022, NXD sought review of the orders made on 27 August 2021 under s 86 of the Guardianship and Administration Act (Tribunal proceedings GAA 369 of 2022). The review was opposed by [redacted].
On 11 May 2022, the Tribunal appointed the Public Advocate as NXD's limited guardian with substantially the same powers granted in the orders made on 27 August 2021 and the Public Trustee as plenary administrator of NXD's estate.
On 19 September 2023, NXD applied for a review of the orders made on 11 May 2022 under s 86 of the Guardianship and Administration Act (Tribunal proceedings GAA 4269 of 2023).
On 13 November 2023, the Tribunal made orders in substantially the same terms as those made on 11 May 2022.
On 17 November 2023, NXD sought review of the orders made on 13 November 2023 under s 17A of the Guardianship and Administration Act (Tribunal proceedings GAA 5217 of 2023).
On 1 February 2024, during the hearing of the application, NXD was granted leave to withdraw that application for review with a view to obtaining further medical evidence in support of a further application.
NXD applies for a review by a single member in 2024
As I have mentioned, on 23 April 2024, NXD made the Single Member Review Application.
On 9 July 2024, the Tribunal (constituted by a single member) made guardianship and administration orders in respect of NXD. The Tribunal appointed the Public Trustee plenary administrator of NXD's estate. The Tribunal appointed the Public Advocate as limited guardian of NXD to determine decisions regarding her accommodation, medical treatment, service provision, legal representation, and to consent to the use of restrictive practices and restraints.
NXD applies for a review by the Full Tribunal
On 4 October 2024, NXD sought review of the decision of the single member of the Tribunal by the Full Tribunal pursuant to s 86 of the Guardianship and Administration Act (Tribunal proceeding GAA 5182 of 2024) (the Full Tribunal Review Application).
On 23 October 2024, NXD requested that her application for review be reviewed pursuant to s 17A of the Guardianship and Administration Act. On 26 November 2024, the Tribunal made orders to that effect.
The hearing before the Full Tribunal
As I have mentioned, the hearing before the Full Tribunal took place on 25 February 2025.[1]
[1] Transcript of hearing before the Full Tribunal, 25 February 2025 (Full Tribunal Hearing Transcript).
NXD attended the hearing and represented herself.
Mr Ajay Singh (NXD's guardian as delegate of the Public Advocate) also appeared at the hearing.
The Full Tribunal also had regard to a number of written reports and documents that were before it.
What the Full Tribunal needed to determine
A review under s 17A of the Guardianship and Administration Act is by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.[2] The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.[3]
[2] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(1).
[3] SAT Act, s 27(2).
The Full Tribunal may affirm, vary or set aside the decision and substitute its own decision, or send the matter back to the decision‑maker for reconsideration.[4]
[4] SAT Act, s 29(3).
The nature of the jurisdiction being exercised by the Full Tribunal pursuant to s 17A of the Guardianship and Administration Act therefore meant that the Full Tribunal was required to conduct a review under s 86 of the Guardianship and Administration Act.
To make a guardianship order, the Tribunal must be satisfied that the represented person satisfied one or more of the sub-paragraphs in s 43(1) of the Guardianship and Administration Act and find that the person is
(a) incapable of looking after her own health and safety;
(b) unable to make reasonable judgments in respect of matters relating to her person; or
(c) in need of oversight, care or control in the interests of her own health and safety, or for the protection of others;[5] and
(d) in need of a guardian.[6]
[5] Guardianship and Administration Act, s 43(1)(b).
[6] Guardianship and Administration Act, s 43(1)(c).
If the Tribunal is satisfied of those matters, it has discretion to, by order, declare the person to be in need of a guardian and to appoint a guardian.[7]
[7] Guardianship and Administration Act, s 43(1).
Section 4(1) of the Guardianship and Administration Act requires the Tribunal to observe the principles set out in s 4 in proceedings commenced under the Guardianship and Administration Act.
In deciding who should be appointed guardian, the Tribunal must be satisfied that the proposed guardian will act in the represented person's best interests, will not be in a position where the proposed guardian's interests conflict or may conflict with her interests, and that the person will otherwise be suitable to act as guardian.[8]
[8] Guardianship and Administration Act, s 44(1).
Suitability takes into account the desirability of preserving existing family relationships; the compatibility of the proposed guardian with the represented person and the person's administrator; the represented person's wishes; and whether the proposed guardian will be able to perform the role that he or she is given.[9]
[9] Guardianship and Administration Act, s 44(2).
The making of an administration order is governed by s 64 of the Guardianship and Administration Act. To make an order under that section the Tribunal must be satisfied that the represented person:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate; and
(b) is in need of an administrator of their estate.
The term 'mental disability' is defined in s 3(1) of the Guardianship and Administration Act to include 'an intellectual disability, a psychiatric condition, an acquired brain injury and dementia'.
Who make be appointed an administrator is addressed in s 68 of the Guardianship and Administration Act.
The Tribunal must be satisfied that the proposed administrator will act in the best interests of the person in respect of whom the application is made and is otherwise suitable to act as the administrator of the estate of that person.[10]
[10] Guardianship and Administration Act, s 68(1).
The Tribunal must take into account as far as possible the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person, the wishes of that person and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.[11]
[11] Guardianship and Administration Act, s 69(3).
The Full Tribunal's reasons for making the orders made
The Full Tribunal delivered oral reasons for decision which were given by Deputy President Jackson.[12]
An overview of the Full Tribunal's decision
[12] Transcript of hearing before Full Tribunal on 6 March 2025 (Full Tribunal's Oral Reasons).
The Full Tribunal commenced by giving an overview of its decision.
The Full Tribunal began by noting that NXD was a 65‑year‑old woman living independently in her own home.
The Full Tribunal then noted that in March 2021, NXD was the subject of orders made by a single member of the Tribunal, following an application made by a social worker at Sir Charles Gairdner Hospital. It said that the application spoke of NXD having had multiple presentations at hospital with alcohol misuse and falls and that NXD's treating team at the hospital formed the view that she lacked the capacity to make reasonable decisions in her own best interests.
The Full Tribunal observed that the team considered that her cognition had improved while she was at the hospital due to her abstinence from alcohol and that she 'may continue to improve if she abstains' from alcohol. It said that NXD said that she had abstained from alcohol for over a year and that she was capable of making her own decisions. It said that her application was in effect an assessment of the extent to which she has improved and whether she has regained her capacity to make decisions in her own best interests.
The Full Tribunal observed that its role on review was to remake the original decision.
The Full Tribunal summarised the conclusion it had reached as follows:[13]
In starting again and remaking the decision under review, we have had regard to all of the material that was before the original decision-maker. We've also had regard to the transcript of the hearing held by the original decision-maker. The other documents filed by any of the other parties since the original hearing and what was said at the hearing. Having taken all of that material into account, we are satisfied, firstly, in relation to the application regarding administration, that [NXD] suffers from a mental disability, that she lacks capacity to make complex decisions about her finances that are in her own best interests, and that that inability is due to her mental disability.
In relation to the application regarding guardianship, we are satisfied that [NXD] is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; and that she's in need of oversight, care and control in the interest of her own health and safety. We're also satisfied that there is a need for formal orders to be made for both guardianship and administration. Finally, we are satisfied that the Public Trustee should be granted plenary powers of administration in respect of her estate, and that the Public Advocate should be granted limited powers of guardianship as to medical treatment decisions, decisions as to which services she should receive, and to seek legal advice and representation on behalf of [NXD], and to advocate in relation to any police investigation or criminal charges or other proceedings.
Accordingly, while formal orders will be made, they will be of a considerably narrower focus than those made previously, in particular, we're satisfied that the guardian should not have the functions of making decisions in relation to where and with whom [NXD] should live, or whether or not [NXD] should be subject to restrictive practices and restraints.
The relevant legal principles
[13] Full Tribunal's Oral Reasons ts 4 - 5.
The Full Tribunal then turned to consider the relevant legal principles.
The Full Tribunal indicated that its decision was guided by four principles derived from s 4 of the Guardianship and Administration Act. The Full Tribunal then set out those principles.
The Full Tribunal said that there were five issues that it must resolve: capacity, need, function, identity and duration.
The Full Tribunal said that the starting point was capacity because it could not make an order unless it was satisfied that NXD lacked capacity. It indicated that its starting point was to presume that NXD had capacity. It then went on to explain the other four considerations.
The Full Tribunal then turned to address the legal principles concerning capacity.
The Full Tribunal reiterated that it started with a presumption that NXD was capable of making reasonable financial decisions in her own best interests.
The Full Tribunal referred to the test in s 64 of the Guardianship and Administration Act and said that it involved a three-part test. It observed that it could only make an administration order if it was satisfied that NXD is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate; and is in need of an administrator.
The Full Tribunal observed that this meant that it must be satisfied that:
(a)NXD is incapable of making reasonable decisions in her own best interests;
(b)NXD has a mental disability; and
(c)NXD's incapacity is due to or because of that mental disability.
The Full Tribunal referred to the definition of 'mental disability' in s 3 of the Act. It noted that it is an inclusive definition, so it was not limited to the examples given but it observed that the examples were relevant. It noted that they included 'an intellectual disability, a psychiatric condition, an acquired brain injury and dementia'.
The Full Tribunal observed that it was clear from s 64 that the existence of a mental disability is insufficient, and it was also necessary that the person in question lacks the capacity to make decisions about their estate in their own best interests, and that that lack of capacity is caused by the mental disability.
The Full Tribunal indicated that it was satisfied of those matters in relation to NXD.
The medical evidence
The Full Tribunal said that the medical evidence supported such a finding. It said that there was a wealth of medical evidence before it and it was not necessary to address it all.
The Full Tribunal referred to a report prepared by Dr Raj dated 11 March 2021. It observed that at that stage, he had known NXD for only three weeks, but he referred to her having a 'long history of alcohol dependence' and that a CT scan showed atrophy. It said that he was of the view that she lacked capacity in all functions, although he said he thought her condition was 'fluctuating'.
The Full Tribunal said that Dr Maticevic gave consistent viva voce evidence at a hearing on 5 August 2021. It said that Dr Maticevic's evidence was that NXD had an 'alcohol-related cognitive deficit which was present when NXD was sober'.
The Full Tribunal noted that at the hearing before it NXD was critical of Dr Raj and Dr Maticevic and other doctors concerned with her treatment at Sir Charles Gairdner Hospital, saying that none of them remained practitioners there. It indicated that it did not attach any weight to this as there may have been a number of reasons why they were no longer employed at the Hospital.
The Full Tribunal then referred to a neuropsychological report of 4 April 2022 by clinical neuropsychologist, Bedrija Parsons and referred to observations made by Ms Parsons that:
(a)NXD did not demonstrate sufficient capacity to make informed and well-reasoned decisions regarding her health;
(b)NXD's ability to understand and appreciate her functional impairments was limited, and would likely impair her ability to make informed and well-reasoned decisions regarding lifestyle matters should her situation require change;
(c)although Ms Parsons had little opportunity to question NXD regarding her financial decision-making capacity, Ms Parsons referred to statements made by NXD that appeared to have no basis in fact, and to evidence that prior to the administration orders being made, she was managing her finances 'quite poorly'; and
(d)Ms Parsons opined that continuing the 'current arrangement' of an administrator would be in her best interests.
The Full Tribunal then noted that at the hearing before it, NXD said she had no recollection of seeing Ms Parsons and said that this was because she was heavily medicated. It noted that despite this, NXD sought to discredit Ms Parsons's report.
Part of the transcript of the Full Tribunal's reasons is missing. The reasons recommence with a reference to a report (which seems likely to be a report of Dr Chen). The opinion was that NXD was suffering from a progressive cognitive impairment which together with her lack of insight meant that she was unable to make reasonable decisions in her own best interests about herself or her finances.
The Full Tribunal referred to a report from Dr Alistair Bennett, a senior medical officer for the Lower West Community Mental Health Service, dated 30 June 2023. It quoted from that report.
The Full Tribunal noted that in a document dated 22 November 2024, NXD had made a very serious allegation against Dr Chen and said that he is no longer practising medicine. It observed that the allegations against Dr Chen were unsupported by any evidence, and that Dr Chen was currently registered as a medical practitioner.
The Full Tribunal observed that there were 'very many' instances of NXD responding to opinions which affected her and with which she disagreed by making outrageous allegations. It said that this was another example of this.
The Full Tribunal then referred to a medical report of Dr Prue Watson, a clinical neuropsychologist dated 30 April 2024 which referred to a report prepared by Dr Watson dated 18 April 2024.
The Full Tribunal noted that in Dr Watson's report dated 30 April 2024, she stated that her earlier report of 18 April 2024 was 'not requested to be used as a capacity assessment', but rather was to 'ascertain cognitive strengths and weaknesses'. It said that as a result, Dr Watson said that she was unsure whether or not NXD was able or unable to make reasonable decisions in her own best interests across a range of functions.
The Full Tribunal said that given this, it gave limited weight to Dr Watson's report dated 18 April 2024, but noted that in that report she states that:
(a)outside of mild difficulties across memory, visual-spatial processing and processing speed, NXD demonstrated more prominent difficulties on tasks requiring rapid mental flexibility and response inhibition;
(b)NXD occasionally struggled to plan and strategize to support her performance on tasks; and
(c)these weaknesses are indicative of executive functioning difficulties.
The Full Tribunal then referred to another part of Dr Watson's report where she referred to mild evidence of a reduction in functioning. The transcript is then interrupted and recommences with reference to cognitive testing indicative of an isolated haematoma.
The Full Tribunal then referred to a document titled Medical Certificate dated 28 May 2024 which appeared to be signed by general practitioner, Dr Shereen Awadalla. It noted that different fonts were used in the document and it was poorly phrased. It indicated that it was 'very sceptical' of the document and it appeared to it that the document had been altered to contain material favourable to NXD. It said that it attached no weight to this document.
The Full Tribunal next referred to a report from a general practitioner Dr Ben Grant dated 10 December 2024.
The Full Tribunal then set out the various orders that had been made in relation to NXD and the various applications for review that had been made. It said that at the time Dr Grant prepared his report he had known NXD for five months and seen her 13 times in that time. It said that Dr Grant had considered that there was an unclear diagnosis regarding whether NXD had a mental disability, but he considered that she appeared to have a lot of fixed persecutory delusions and likely some cognitive impairment.
The Full Tribunal observed that Dr Grant was unsure whether NXD could make reasonable decisions in her own best interest about simple financial matters, legal matters, accommodation and medical treatment. It said that Dr Grant thought that NXD was incapable of making complex financial decisions and decisions as to the services she should access.
The Full Tribunal then referred to two reports from Dr Olivia Lee, a consultant psychiatrist and a specialist in old age psychiatry.
The Full Tribunal referred to a lengthy report prepared by Dr Lee dated 4 November 2024. He noted that Dr Lee:
(a)expressed concern about NXD's ability to manage her finances and that NXD struggle to maintain her finances to the extent that she needed support from the Salvation Army;
(b)while this reflected a degree of problem-solving capacity, it also reflected a limited financial planning capacity on a day‑to‑day basis and was consistent with neuropsychological results of impairment in strategizing and planning; and
(c)this was the primary reason she had concerns about NXD's ability to manage complex financial decisions.
The Full Tribunal noted that at the hearing before it, NXD repeated previous accusations that the Public Trustee had deliberately withheld funds in retribution for making an application for review of orders made about her. It said that there was no basis for these assertions other than NXD's self‑serving bare assertions. It observed that the assertion was consistent with the other complaints to which it had referred where, 'without exception' anyone who had made a decision inconsistent with NXD's view of her own interests is met with accusations of dishonesty, negligence, conflict of interest or some combination of those factors.
The Full Tribunal said that Dr Lee had said in her report that the limited collateral information before her made it difficult for her to express a view about NXD's ability to make medical decisions and decisions regarding services. The Full Tribunal said that Dr Lee said that:
(a)although the history given by NXD did not suggest that she lacked the capacity to make decisions about her health care needs, the lack of acknowledgement of previous alcohol related harms would seem consistent with the Tribunal's observations of lack of insight;
(b)she was concerned about the absence of candidates NXD had in mind for guardian and administrator should she lose capacity which Dr Lee considered was consistent with lack of insight and consistent with the executive function impairment notes on psychological testing; and
(c)the absence of collateral information to support NXD's guardianship, the documentation of past concerns, alongside the lack of insight meant that Dr Lee felt unable to form an opinion to support the removal of the guardian on the information available.
The Full Tribunal then referred to a second report of Dr Lee in which she said that NXD is capable of making reasonable decisions about simple financial matters but incapable of making reasonable decisions about complex financial matters, legal matters and medical treatment. It said that in the same report Dr Lee said that she was unsure about whether NXD is capable of making reasonable decisions about her accommodation needs and the services she requires.
The Full Tribunal observed that NXD filed a document on 31 October 2024 which she said corrected statements of fact in Dr Lee's report and she repeated those at the hearing. It commented that it had already addressed the matter regarding Dr Lee's reference to her seeking help from the Salvation Army.
The Full Tribunal said that NXD also filed a document on 22 November 2024 which made a variety of allegations, including that the Public Trustee deprived her of money each time she made an application, as well as what it described as 'several grossly inappropriate allegations against Dr Lee' for which there was no foundation. It observed that such allegations appeared to be NXD's way of responding to opinions that affect her and with which she disagreed. It said that it gave them no weight.
The Full Tribunal said that NXD also filed a document on 22 November 2024 alleging that Dr Lee had not taken into account an Addenbrooke cognitive assessment undertaken on 16 September 2024 for which she scored 93 out of 100 which is well within the normal range. It said that Dr Lee did take this into account. It noted that on page 6 of her report, Dr Lee expressly referred to the Addenbrooke's cognitive assessment, and consistent with NXD's assessment, said that the result is 'well within normal range'. It observed Dr Lee took this into account when she expressed the conclusions she did.
The service provider reports
The Full Tribunal then turned to consider the service provider reports and observed that NXD had prevented service providers from accessing her home for some time.
The Full Tribunal referred to a report from Ms Le from Diversities WA dated 26 November 2024 which said that she has known NXD since June 2022 and that NXD had disengaged with their service in September 2023, NXD had stopped taking her prescribed medications and she did not believe that NXD had maintained regular contact with her general practitioner.
The Full Tribunal then referred to a report from Home Care Stirling. It observed that the report was inconsistent in that it said that NXD had not received any assistance from Home Care Stirling since September 2024 but then referred to taking over NXD's care from October 2024. It said that the report also said that NXD was capable of making her own decisions and having an independent life.
The Full Tribunal contacted the person who appeared to have prepared the report, Ms Trong, during the hearing. It said that Ms Trong confirmed she had filed a report with the Tribunal but was unable to locate a copy, she had never met NXD, been to her home or observed her and she had never said that NXD could look after herself.
The Full Tribunal said that Ms Trong had later said that her team leader had informed her of the matters addressed in her report. It indicated that it did not call the team leader as NXD had said that she had never met the team leader.
The Full Tribunal observed that it was unclear who, in fact, completed the report but it considered that Ms Trong was unable to express any useful opinions.
Reports from the guardian and administrator
The Full Tribunal then turned to consider the reports of the guardian and administrator and observed that the reports of the Public Trustee did not assist the Tribunal either way in relation to the question of NXD's capacity.
The Full Tribunal referred to a report provided by the delegated guardian on 9 February 2025 which said that NXD had refused all assistance, including assistance following shoulder surgery but that despite that, the guardian had continued to advocate for funding for her in case she chooses to engage with agencies. It observed that the report also referred to the report of Dr Lee in support of the view that there remained a need for formal guardianship orders.
The Full Tribunal said that at the hearing the delegated guardian repeated his view that orders were warranted given Dr Lee's opinions. It observed that he also gave evidence that when the shoulder surgeon, Dr Graham, performed surgery on NXD's right shoulder in August 2024, he agreed to undertake the surgery on condition that NXD have appropriate supports post‑surgery but that NXD refused those supports, including taking a taxi home.
The matters relied upon by NXD
The Full Tribunal then considered the matters relied upon by NXD to demonstrate that she had capacity to make reasonable decisions in her own best interest. It said that at the hearing NXD had identified six such matters.
The Full Tribunal said that the first matter that NXD relied upon was the report of Ms Trong which it said it had already addressed.
The Full Tribunal said that the second matter that NXD relied upon was her Addenbrooke's capacity assessment. It said that the test was well within the normal range and accepted that weight should be given to that test. It said that such a test can never be conclusive and Dr Lee had regard to that test and remained of the view that NXD lacked capacity in a couple of key areas.
The Full Tribunal said that the third matter that NXD relied upon was a letter dated 3 December 2024 from Dr Graham, who operated on her shoulder in August 2024. It said that in that letter Dr Graham described NXD as 'a model patient, attending all her appointments on time and following all post-operative restrictions and recommendations to the letter'. It commented that the letter also said that he was not 'initially aware of her being under a guardianship order; however, the doctor's impression is that she managed her shoulder condition extremely well independently'.
The Full Tribunal referred to the evidence given by the delegated guardian that when Dr Graham became aware that NXD was under a guardianship order, he agreed to undertake the surgery only on condition that she have appropriate supports post-surgery, and that NXD refused to allow those supports to assist her.
The Full Tribunal said Dr Graham's letter was inconsistent with the evidence of the delegated guardian about NXD's post‑surgery restrictions and recommendations. It observed that Dr Graham's letter said that NXD followed them, while the delegated guardian said she did not. It noted that the letter from Dr Graham was dated 3 December 2024 and is unsigned and contains the words quote 'AI generated letter' in the signature area.
The Full Tribunal indicated that it was minded to prefer the evidence of the delegated guardian to the letter because:
(a)he gave evidence in person, whereas Dr Graham did not;
(b)NXD did not disagree with the evidence given by the delegated guardian; and
(c)it assumed that Dr Graham's letter reflected NXD's version of events, and that her version of events was the only version given to Dr Graham. It said that that would be consistent with her other behaviour in limiting information to other medical practitioners.
The Full Tribunal said that it accepted that NXD appeared to have identified the need for treatment of her shoulder and arranged appointments with the surgeon. It said that that tended to suggest that she was capable of making her own medical treatment decisions in her own best interests but it considered that her apparent failure to follow postoperative arrangements undermined that suggestion.
The Full Tribunal said that the fourth matter that NXD relied upon was that she said she had 'been successful' in various legal battles. It said that at least one of those occurred with the benefit of legal representation instructed by the Public Trustee on her behalf. It noted that the details of the others were unclear other than there is evidence of a dismissal of a civil claim against NXD, the details of which it said were not provided.
The Full Tribunal said that the fifth matter that NXD relied upon was that she looked after herself without assistance since she started refusing services in about September 2023. It noted that the difficulty with that contention was that there was almost no evidence that that had gone well, other than NXD's own testimony.
The Full Tribunal said that ordinarily evidence from the service providers would be useful but NXD's refusal to allow them access to her property meant that such evidence was largely unavailable. It observed that the exception to this was that prior to NXD's refusal to allow services into her home in mid‑2023, the delegated guardian had been told by Ms Hannah Le that NXD's home was presentable.
The Full Tribunal said that the sixth matter that NXD relied upon was her ability to budget on $300 a week. It referred to the fact that Dr Lee had concluded that NXD was unable to remain within a budget because she had had to seek assistance from the Salvation Army. It said that NXD had said that she needed to seek assistance from the Salvation Army because the Public Trustee had refused her access to money in retribution for seeking a review. It said that it had found that this had not occurred. It noted that NXD had said that she had friends who said that they could not live on $300 a week but it said that the reality was that that was the limit given her income.
Consideration and findings
The Full Tribunal then turned to make findings based on the material before it.
The Full Tribunal indicated that it found the medical evidence sufficiently cogent to displace the presumption of capacity both in relation to administration (regarding complex financial matters) and guardianship.
The Full Tribunal said that in relation to administration, it was satisfied that NXD suffered from a mental disability which was alcohol‑related dementia. It observed that that was the diagnosis given by Dr Maticevic, Dr Chen and Dr Bennett. It noted that Dr Lee's report proceeded on the basis that this may well be the cause of any lack of capacity.
The Full Tribunal observed that with regard to whether NXD was unable to make reasonable decisions in her own best interests, the reports that predate 2024 are framed in more absolute terms, while the later reports are more nuanced.
The Full Tribunal noted, by way of example, that:
(a)Dr Lee's opinion was that NXD lacked the capacity to make reasonable decisions in her own best interests about complex financial matters, legal matters and medical treatment matters, but she was unsure about accommodation and services; and
(b)Dr Grant considered that NXD lacked capacity to make reasonable decisions in her own best interests about complex financial matters and the services that she should accept, but was unsure about legal matters, accommodation, medical treatment, although in relation to legal matters and accommodation, he deferred to Dr Lee.
The Full Tribunal said that, by contrast Dr Chen's report from September 2023, who had known NXD for seven years at that time, is unequivocal in stating that she lacks capacity to make reasonable decisions in relation to simple and complex financial matters, legal matters, medical treatment, accommodation and services due to alcohol-related impairment.
The Full Tribunal said that NXD's case was that those more strongly worded reports refer to her capacity at a time when she was subject to heavy medication. It observed NXD effectively said that that medication was the only reason why she lacked capacity at the time, but that as it understood it, that medication was prescribed by way of treatment for her alcohol misuse.
The Full Tribunal referred to evidence from the delegated guardian that for some time there had been limits placed on NXD's ability to buy or access alcohol. It noted that the fact that NXD had abstained from alcohol might provide a basis for the more nuanced opinions expressed by Dr Grant and Dr Lee but it said that another reason may be that she has failed to provide all information to the relevant experts. It said that this was certainly the case with Dr Lee who expressed frustration about her inability to obtain collateral information about NXD.
The Full Tribunal said that NXD's refusal to grant access to service providers might be seen as an attempt to have the orders overturned. It observed that NXD sought to obtain opinions from medical practitioners who did not know her as well as Dr Chen and from whom she withheld information. It referred to the report of Dr Watson and said that he was asked to prepare a report based on the misconception that NXD needed it to return to work.
The Full Tribunal noted that Dr Watson said in her later report that this meant that the earlier report was not carried out to test her capacity. It said that Dr Lee's ability to complete a comprehensive report was compromised by NXD's refusal to provide people from whom Dr Lee could obtain collateral information.
The Full Tribunal said that in these circumstances it had taken a longitudinal view. It said that it had no doubt that between at least 2021 and 2023 NXD was suffering from quite severe cognitive impairment due to excessive alcohol consumption.
The Full Tribunal said that although NXD had been abstaining from alcohol and appeared to have made considerable improvements both Dr Lee and Dr Grant had expressed the view that she lacked capacity in relation to complex financial matters. It noted that Dr Lee said that NXD lacked capacity to make reasonable decisions about legal matters due to an alcohol related cognitive impairment. It said that Dr Grant deferred to Dr Lee in this regard and that Dr Grant was both NXD's current GP and someone with whom she said she has an excellent relationship.
The Full Tribunal said it was satisfied that the presumption was displaced as to making decisions regarding complex financial matters and legal matters.
The Full Tribunal said that the position was more nuanced when it came to NXD's capacity to make personal decisions in her own best interests. It said that it considered that NXD lacked capacity to make reasonable decisions in relation to at least medical treatment and the services to which she should have access.
With regard to medical treatment, the Full Tribunal referred to the view of Dr Lee that NXD was unable to make reasonable decisions about such treatment. It observed that while Dr Grant was unsure, he also questioned her ability given her fixed persecutory beliefs.
The Full Tribunal said that the fact that NXD was able to make her own arrangements with Dr Graham to operate in circumstances where he was unaware of the guardianship orders, supported the view that she was able to make reasonable decisions in this regard. It said, however, that NXD's refusal to comply with prearranged services suggested that she lacked insight into her condition. It said that in the end it was satisfied that the reports of Dr Lee, a specialist psychiatrist, represented cogent evidence that displaced the presumption.
The Full Tribunal said that the question of services was moot as NXD had refused to accept services for more than a year but that did not mean that they were not needed.
The Full Tribunal noted that Dr Grant considered that NXD's refusal to accept services indicated a lack of capacity. It observed that it was not aware of which refusal to accept services post‑surgery he is referring to but said that her refusal to accept services post‑surgery for her shoulder provided a proper basis for that view.
The Full Tribunal observed that Dr Lee was unsure due to the lack of collateral information.
The Full Tribunal said that the evidence from the service providers in mid-2023 that described NXD's home as presentable worked in favour of a finding that the presumption was not displaced. It observed though that there was no more recent evidence due to NXD's refusal to accept services. It said that it was therefore satisfied that the evidence of Dr Grant displaced the presumption. It observed that Dr Lee's lack of certainty should not be viewed as favourable or unfavourable to NXD.
The Full Tribunal said that the evidence regarding capacity relating to accommodation and restraints and restrictive practices was quite nuanced. It observed that there was no need for it to consider that question because regardless of whether she had capacity, there was no need for formal orders.
The Full Tribunal then turned to consider the question of need.
The Full Tribunal said that in a general sense, it was satisfied there was a need for formal orders as there was no less formal option available. It observed that there was no enduring power of attorney and NXD's sister had taken on formal roles in the past and was unwilling to continue to do so.
The Full Tribunal said that there was a need for formal orders as complex financial and legal matters are not related to NXD's estate and would not therefore be covered as part of an administration order.
The Full Tribunal said that there was also a need for formal orders to allow a substitute decision-maker to make medical decisions for NXD if she failed or refused to make such decisions in her own best interests. It observed that it was also satisfied that there was a need to address the NDIS regime when NXD's plan arose for review.
The Full Tribunal said that there was no need for formal orders about accommodation, restraints or restrictive practices. It said that no decisions had been made about those functions since formal orders were made in 2021 and there was no suggestion that there was a need for them now. It observed that the delegated guardian had expressed the view that orders in that regard were not required.
The Full Tribunal then turned to consider the issue of function. It said that in relation to guardianship, it had addressed this issue when it considered the question of capacity. It observed that in relation to administration, while NXD only lacked capacity in relation to complex financial decisions, that did not allow anything other than an order granting plenary functions to the administrator.
The Full Tribunal said that as there was no one willing to consent to appointment as either guardian or administrator, it would appoint the Public Trustee as NXD's plenary administrator and would appoint the Public Advocate as limited guardian with the functions of medical treatment, service provision, and legal services.
The Full Tribunal considered that given NXD's apparent improvement over the last couple of years, it was of the view that orders of relatively short duration would be appropriate. It observed that this would allow NXD the opportunity to obtain further medical evidence if she wished.
The nature of an appeal to this court
Section 19(a) of the Guardianship and Administration Act provides that, by leave, an appeal lies to a single judge of the Supreme Court from a determination of the Tribunal when constituted by three members not including the President.
Section 21 of the Guardianship and Administration Act provides that an application for leave to appeal may only be made on a ground or grounds coming within the following:
(a) that the Tribunal -
(i) made an error of law or fact, or of both law and fact; or
(ii) acted without or in excess of jurisdiction, or did both of those things; or
(b) that there is some other reason that is sufficient to justify a review of the determination.
Section 22(1) of the Guardianship and Administration Act provides that the judge shall grant leave to appeal only if it is shown to his satisfaction that there is a prima facie case justifying an appeal on one or more of the grounds specified in s 21.
Section 25 of the Guardianship and Administration Act provides that an application and an appeal may be heard together if:
(a) it is in the interests of justice to do so; and
(b) sufficient notice that the appeal may be so determined has been given to such persons as, in the opinion of the Court, ought to have such notice.
In this case the application for leave to appeal and the appeal were heard together.
Section 22(3) of the Guardianship and Administration Act provides that in determining an application for leave to appeal the judge may inform himself in such manner as he thinks fit.
Section 29 of the Guardianship and Administration Act provides that the Court shall determine the appeal on the materials before the Tribunal and on such further evidence, either oral or by affidavit, as the Court thinks fit to receive.
Order 65 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court) provides that an appeal to the general division of the Supreme Court is governed by O 65.
Order 65 r 8 of the Rules of the Supreme Court provides that an appeal will be by way of rehearing unless another written law provides. The Guardianship and Administration Act does not otherwise provide.[14]
[14] See, for example: TL v Office of the Public Advocate [2020] WASC 455 (TL) [51].
A court dealing with an application for leave to appeal or an appeal by way of rehearing can exercise its powers only if satisfied that there was an error on the part of the original decision-maker.[15]
[15] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203; Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460, 477 ‑ 478, Buss J (Steytler P agreeing); TL [51].
Each of NXD's grounds of appeal alleged an error of law in relation to findings of fact made by the Full Tribunal. In Medical Board of Australia v Arunkalaivanan,[16] the Court of Appeal said the following about the ways in which an error of law may vitiate a factual finding:
There are a number of ways in which a factual finding may be vitiated by an error of law. For example, the decision-maker may misidentify the relevant legal test to be applied; the decision-maker may misapply the correct test; there may be no evidence to support the finding of fact, ie the finding of fact may not be open on the evidence; or the decision-maker may adopt a manner of decision-making which fails to discharge its obligations according to law. A contest as to whether a factual finding is vitiated in one of these ways requires an evaluation of the fact-finding process of the decision-maker to decide on its legality. The contest is not concerned with the merits of the factual finding; it is instead concerned with whether the decision-maker has acted lawfully and with authority.
[16] Medical Board of Australia v Arunkalaivanan [2023] WASCA 117 (Arunkalaivanan) [71].
In the same case, the Court of Appeal said the following about a decision‑making process that is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds:[17]
[17] Arunkalaivanan [73] - [78].
In Haritos the Full Court held that it may be an error of law to make a decision which is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.
Haritos, in turn, relied on two High Court decisions concerned with judicial review for jurisdictional error - Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 and Minister for Immigration and Citizenship v SZMDS. In SZMDS Crennan and Bell JJ explained the availability and scope of illogicality and irrationality as a basis for judicial review of a decision as to a jurisdictional fact:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Crennan and Bell JJ later explained that the correct approach was to ask whether it was open to engage in the process of reasoning in which the decision-maker engaged and to make the findings that the decision‑maker made on the material before it. Accordingly, it suffices if the decision-maker's reasoning process and relevant conclusion is justifiable.
In these respects, illogicality or irrationality mean something more than emphatic disagreement with the decision. Crennan and Bell JJ were at pains to make it clear that nothing in their reasons in SZMDS sanctioned the deployment of the grounds of 'illogicality' or 'irrationality' in decision-making to achieve merits review. It is also as well to recall the caution expressed by Allsop J (as his Honour was then) in Minister for Immigration and Multicultural and Indigenous Affairs v NBDS as to when an illogical or irrational approach to fact‑finding might reveal jurisdictional error:
What is plain, though, is that the demonstrating of one illogical aspect of fact finding in a wider scheme of factual analysis will rarely betray such a failure to attend to the jurisdictional task as to call in aid, for instance, what Gleeson CJ said in [Applicant S20/2002]. In such cases, all one has really done, at best, is demonstrate how an error of fact came to be made. Generally, such errors will be within jurisdiction.
A decision that is merely contestable is not illogical or irrational in the required sense. Nor can it suffice to establish some faulty inference of fact. The Full Court of the Federal Court has stated that 'extreme' illogicality must be demonstrated measured against the standard that it is not enough for the relevant question of fact to be one on which reasonable minds may come to different conclusions. In this context the words 'illogical' and 'irrational' are used with their proper meaning of devoid of, or contrary to, logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning. The decision-maker's grounds for the impugned finding must reach the level of being 'arbitrary' or 'perverse'.
A finding that a determination is illogical, irrational and not based on findings or inferences of fact supported by logical grounds is not made lightly. As is also confirmed in the passage from NBDS reproduced at [76] above, not every lapse in logic will give rise to illogicality or irrationality of the requisite kind. But in seeking judicial relief based on illogicality or irrationality it does not need to be established that the decision would have been different but for the lack of reasoning; it is sufficient if the decision may have been different.
(footnotes omitted)
The further evidence that NXD sought to rely upon
NXD filed an affidavit sworn on 18 June 2025 (the NXD Affidavit) which contained further evidence upon which she sought to rely.
At the hearing of the appeal, I expressed reservations about the relevancy of the NXD Affidavit, but I said that I would reserve my decision about whether to permit further evidence to be adduced until the conclusion of the appeal. I indicated that I would deliver my decision about whether NXD should be permitted to rely upon that affidavit with these written reasons.
Neither the oral submissions that NXD made during the appeal, nor the written submissions she filed in support of her appeal dated 19 June 2025 (the Appellant's Written Submissions), addressed the relevancy of the NXD Affidavit to her grounds of appeal, or why she should be permitted to rely upon that evidence.
The only parts of the NXD Affidavit that seemed to bear any relevance to the proposed grounds of appeal seemed to do no more than repeat what NXD has previously said to the Full Tribunal. Given that these matters were already addressed in evidence, the affidavit added nothing to the evidence already before me.
Most of the affidavit bore no apparent relevancy to the proposed grounds of appeal. This apparently irrelevant material included a number of serious and scandalous allegations.
As I have mentioned, s 22(3) of the Guardianship and Administration Act provides that I may inform myself in such manner as I think fit in determining an application for leave to appeal.
I have considered the NXD Affidavit for the limited purpose of considering whether or not to grant leave. Having done so, I do not consider that the contents of that affidavit meaningfully assist the determination of whether or not leave should be granted.
NXD's proposed grounds of appeal
The Appeal Notice identifies twelve grounds of appeal. The first paragraph of the grounds of appeal identifies the decision the subject of the appeal, rather than a ground of appeal. The grounds of appeal commence at ground 2 and are as follows:
2.The Full Tribunal erred in law by failing to take into account NXD's very high Addenbrooke cognitive assessment score of 93/100 assessed on 16 September 2024 by psychiatrist Dr Olivia Lee which is well within normal range. A very high score.
3. The Full Tribunal erred in law by failing to take into account the PET scan reported on by radiologist Dr Tracey Muir on 18 September 2024 which confirmed NXD has no neurovegetative syndromes which includes dementia and NXD has no brain atrophy.
4.The Full Tribunal erred in law by finding that NXD has been diagnosed with an intellectual disability knowing that to be false.
5.The Full Tribunal erred in law by finding that NXD drank six bottles of wine a day in 2021 when she has not drunk alcohol for well over a year and has perfect liver function reported on by Clinipath pathologists from blood tests in April and December 2024.
6.The Full Tribunal erred in law by finding that NXD committed a fraud by altering the medical certification of Dr Shereen Awadalla dated 28 May 2024 after she received it and then filed it at the Tribunal.
7.The Full Tribunal erred in law by finding that NXD committed a fraud by altering a service provider report from Home Care Stirling dated 4 December 2024 which confirmed that NXD had the capacity to make her own decisions and live life independently.
8.The Full Tribunal erred in law by ignoring the medical reports of orthopaedic surgeon Dr David Graham dated 20 September 2024 and 3 December 2024 which confirmed NXD had the capacity to make medical decisions.
9.The Full Tribunal erred in law by accepting the evidence of Ajay Singh of the Public Advocate as true given at the hearing on 25 February 2025 knowing he had engaged in misconduct towards NXD in supervising her home care by Home Care Stirling making her enormously overweight, a wheelchair based invalid and incontinent having the wear adult nappies. This was despite the Full Tribunal members observing photographic evidence of NXD proving that this was true and had occurred.
10. The Full Tribunal erred in law by not accepting the evidence of NXD that Dr David Graham had approved that NXD's recovery from her right shoulder operation was to be supervised by her friend and neighbour of 30 years, Keith Butson.
11.The Full Tribunal erred in law by failing to accept the Public Trustee engaged in misconduct towards NXD by depriving her of any money not only for food but to buy anything as a form of punishment for making each and every application to the Tribunal to have them removed resulting in NXD being forced to attend the Salvation Army for food and despite the full Tribunal members observing the Salvation Army EFTPOS card she was given and being advised that NXD was on the Salvation Army national register for the Public Trustee doing exactly that.
12.The Full Tribunal erred in law by failing to accept the Public Trustee engaged in misconduct by failing to investigate NXD's minor criminal injuries compensation claim and reporting on it.
13.The Full Tribunal erred in law by failing to find the Public Trustee engaged in misconduct in failing to investigate a major fraud involving NXD's late mother's estate [redacted] and theft of part of NXD's inheritance money totalling $410,000.00 and failing to report on it.
Neither the oral submissions that NXD made during the appeal, nor the Appellant's Written Submissions, addressed her grounds of appeal in any meaningful way. They failed to identify the nature of the error of law that it was said vitiated the findings of fact made by the Full Tribunal. It was therefore necessary for me to endeavour to construe the grounds of appeal on the available material.
Ground 2
Ground 2 is that the Full Tribunal erred in law by failing to take into account NXD's very high Addenbrooke cognitive assessment score of 93/100 assessed on 16 September 2024 by psychiatrist Dr Olivia Lee which is well within normal range.
Although the Appellant's Written Submissions repeated the allegation that the Full Tribunal failed to take her Addenbrooke score into account, they did not otherwise explain this ground of appeal. NXD's oral submissions did not address this ground of appeal.
The submissions that NXD made at the hearing before the Full Tribunal on 25 February 2025 relied heavily on her Addenbrooke cognitive assessment score.[18] During that hearing Deputy President Jackson raised with NXD that Dr Lee had concluded that NXD lacked capacity despite taking into account the assessment. NXD's response was to accuse Dr Lee of dishonesty.[19]
[18] Full Tribunal Hearing Transcript ts 26 - 28, ts 35.
[19] Full Tribunal Hearing Transcript ts 26.
The Full Tribunal's Oral Reasons expressly addressed NXD's Addenbrooke cognitive assessment when they discussed Dr Lee's evidence. They referred to a document that NXD had filed with the Tribunal and said that that:[20]
… document also alleges that Dr Lee had not taken into account an Addenbrooke's Cognitive Assessment undertaken on 16 September 2024 for which she scored 93 out of 100. As [NXD] says, such a score is well within the normal range. But the allegation against Dr Lee is not true. On page 6 of her report, Dr Lee expressly refers to the Addenbrooke's Cognitive Assessment, and consistent with [NXD's] assessment, says that the result is "well within normal range". Despite that, Dr Lee reached the conclusions to which we have referred above.
[20] Full Tribunal's Oral Reasons ts 14.
Later in the Full Tribunal's Oral Reasons, the Full Tribunal acknowledged that NXD relied upon the Addenbrooke capacity assessment and that she was right to ask the Tribunal to attach weight to it but the Full Tribunal noted that the test was not conclusive. They said:[21]
The second was her Addenbrooke's capacity assessment. As we have noted above, that test recorded a score well within the normal range, and [NXD] is right to ask us to give weight to that testing. But such a test can never be conclusive, and indeed Dr Lee had regard to that test and yet remained of the view, as we've previously noted, that [NXD] lacked capacity in a couple of key areas.
[21] Full Tribunal's Oral Reasons ts 16 - 17.
It seems to me therefore that the Full Tribunal took NXD's Addenbrooke cognitive assessment into account and accepted that it supported NXD's argument, but it did not ultimately accept that the assessment was determinative. The Full Tribunal's conclusion that the assessment was not determinative was supported by the medical evidence before it, including the evidence of Dr Lee.
Given all of this, I am not satisfied that NXD has established a prima facie case justifying an appeal on this ground. I will refuse leave to appeal on this ground.
Ground 3
Ground 3 is that the Full Tribunal erred in law by failing to take into account the PET scan reported on by radiologist Dr Tracey Muir on 18 September 2024 which confirmed NXD had no neurovegetative syndromes which includes dementia and no brain atrophy.
The Single Member Review Application identified Dr Tracey Muir as one of NXD's treating doctors. The application also referred to Dr Benjamin Grant.
In a part of the Single Member Review Application in which NXD was asked to indicate what orders she wanted the Tribunal to make, she said that she wanted all of the orders revoked immediately as the Envision brain scan confirmed that she had no brain damage, no mental disability or any neurodegenerative condition such as dementia.
NXD appears to have filed a copy of Dr Muir's report when she filed the Single Member Review Application.
Despite this, when NXD appeared before the Full Tribunal, she did not indicate that she placed any reliance on Dr Muir's report.
The Full Tribunal repeatedly asked NXD to identify the matters that she relied upon. She did not tell the Full Tribunal that she relied upon Dr Muir's report. Indeed, she does not seem to have mentioned that report at all. Rather, her submissions focused on her Addenbrooke cognitive assessment.
When NXD appeared before me, she made the oral submission that Dr Muir's report confirms that she has no new neurodegenerative symptoms, which includes dementia, and no brain atrophy. She submitted that Dr Muir was a top radiologist and she could not possibly have dementia given the finding made.[22] This ground of appeal did not appear to be addressed in the Appellant's Written Submissions at all.
[22] Transcript of appeal hearing held on 27 June 2025 (Appeal Hearing Transcript) ts 85.
Dr Muir's report relevantly states:[23]
FINDINGS
There is mildly decrease activity seen in both parietal and both frontal lobes. Preserved activity within the occipital lobes, cerebellum and brainstem. Reserved activity within the thalami and basal ganglia.
Statistical parametric mapping performed with the Neurostat program. There are no statistically significant decreased areas of metabolism.
Low-dose non-contrast CT shows generalised cerebral atrophy. The ventricles and sulci are proportional.
COMMENT
There [sic] no statistically significant deceased area of hypometabolism to indicate a specific neurodegenerative syndrome.
(emphasis added)
[23] Book of documents from SAT filed by the Appellant on 22 April 2025 (SAT Hearing Bundle) page 181.
It may be observed that Dr Muir did not say that NXD has no brain atrophy, as NXD submitted.[24] To the contrary, Dr Muir found 'generalised cerebral atrophy'.
[24]Appeal Hearing Transcript ts 85.
Nor did Dr Muir say that NXD had no brain damage, no mental disability or any neurodegenerative condition such as dementia. Her report extends no further than to say that there is no statistically significant decreased area of hypometabolism 'to indicate a specific neurodegenerative syndrome'. The report is silent on whether there were new neurodegenerative symptoms.
Dr Muir's report was addressed to Dr Olivia Lee and Dr Benjamin Grant. Dr Lee considered the significance of Dr Muir's report in a report that she sent to Dr Grant dated 4 November 2024.
In Dr Lee's report dated 4 November 2024, Dr Lee observed that the report found no statistically significant decreased area of hypometabolism to indicate a specific neurodegenerative syndrome, but noted that there was mildly decreased activity in both parietal and both frontal lobes. She noted that there is generalised cerebral atrophy.[25]
[25] Extra documents provided by the intervenor at the appeal hearing (Extra Documents), page 72.
Later in the same report, Dr Lee mentioned Dr Muir's report again, this time in the context of expressing her opinion about NXD's capacity. Dr Lee said:[26]
Neuroimaging alongside neuropsychology testing at first impression do not show gross abnormalities to suggest neurodegenerative disorder. However, the neuropsychological test details executive dysfunction of unclear cause - a cognitive function vital in managing complex tasks like complex financial matters. I do note however that the tests performed were not necessarily directed at testing for capacity but rather return to working as a lawyer. Nonetheless, the level of cognitive function required would likely be similar. This would be consistent with the hypo metabolism observed on PET scan in the frontal and parietal regions. In my opinion, there is organic evidence suggestive of executive dysfunction.
[26] Extra Documents, page 78.
This formed part of Dr Lee's conclusion that NXD was capable of making reasonable decisions about simple financial matters but incapable of making reasonable decisions about complex financial matters, legal matters and medical treatment. It will be recalled that the Full Tribunal relied upon Dr Lee's conclusion in this regard.
The Full Tribunal's Oral Reasons indicate that it relied upon the conclusion expressed by Dr Lee in her report dated 4 November 2024 in reaching the conclusion that it did. In doing so it addressed certain criticisms that NXD had made of Dr Lee.[27]
[27] Full Tribunal's Oral Reasons ts 12 - 14.
The Full Tribunals' Oral Reasons do not refer to any submission made by NXD that the weight to be attached to Dr Lee's report should be reduced because she failed to take Dr Muir's report into account. Nor has NXD indicated in her submissions to me that she made such a submission to the Full Tribunal.
Ultimately, I am not satisfied that NXD has established a prima facie case justifying an appeal on this ground. This is for two reasons.
First, while it is true that the Full Tribunal's Oral Reasons do not expressly refer to Dr Muir's report, the Full Tribunal may not have appreciated any need to do so because NXD did not indicate that she relied on the report.
The Full Tribunal did take into account Dr Lee's report dated 4 November 2024 which considered and addressed Dr Muir's report. Given this, I am not satisfied that any failure to expressly address Dr Muir's report is material.
Secondly, in any event, I am not satisfied that Dr Muir's report demonstrates that the Full Tribunal's conclusion was wrong, as NXD contended. NXD's submissions overstated Dr Muir's conclusion and failed to address the fact that Dr Lee considered Dr Muir's report in expressing the opinion that she did (on which the Tribunal relied).
I will refuse leave to appeal on this ground.
Ground 4
Ground 4 was that the Full Tribunal erred in law by finding that NXD has been diagnosed with an intellectual disability knowing that to be false.
The submissions made by NXD did not address this ground of appeal. I had difficulty discerning the precise nature of the error of law alleged.
The Full Tribunal did not make any finding that NXD had been diagnosed with an 'intellectual' disability. As I have mentioned, however, it did find that NXD had a 'mental' disability for the purposes of s 64(1)(a) of the Guardianship and Administration Act. It is this finding that NXD is presumably referring to.
The Full Tribunal was satisfied that NXD suffered from a mental disability which was alcohol-related dementia. In reaching this conclusion it relied upon the diagnoses given by Dr Maticevic, Dr Chen Dr Bennett and Dr Lee.[28]
[28] Full Tribunal's Oral Reasons ts 19.
Despite the fact that I had difficulty discerning the precise nature of the error of law alleged, I am not satisfied that NXD has established a prima facie case justifying an appeal on this ground.
I am not satisfied that the Full Tribunal made the particular finding asserted. In any event, the ground asserts that the Full Tribunal's conclusion was knowingly false. There was a basis in the evidence for the Full Tribunal to reach the conclusion that it did. NXD's submissions fail to meaningfully engage with that evidence, or to explain why the Full Tribunal's conclusion was knowingly false. It is not apparent to me that it was.
I will refuse leave to appeal on this ground.
Ground 5
Ground 5 was that the Full Tribunal erred in law by finding that NXD drank six bottles of wine a day in 2021 when she had not drunk alcohol for well over a year and had perfect liver function reported on by Clinipath pathologists from blood tests in April and December 2024.
The Full Tribunal had before it a neuropsychological report prepared by Bedrija Parsons dated 4 April 2022.[29] That report referred to hospital admission notes from Sir Charles Gardiner Hospital admissions between 2021 and 2022 recording that NXD consumed 'five to six bottles of wine daily'.[30]
[29] Intervenor's Bundle of Documents filed on 25 May 2025 (Intervenor’s Bundle of Documents), Tab 4.
[30] Intervenor's Bundle of Documents, Tab 4, page 14.
At the hearing before the Full Tribunal, NXD said Ms Parsons's report was inaccurate and she was medicated when she saw Ms Parsons. She said that she did not drink five or six bottles of wine daily. She said that if she had, Dr Grant said she would have permanent liver damage. She said that she had perfect liver function tests and this discounts the evidence that she drank six bottles of wine every day.[31]
[31] Full Tribunal Hearing Transcript ts 11 - 12.
Deputy President Jackson asked NXD how she could remember these things but could not remember attending the appointment with Ms Parsons. NXD said that this was because she was medicated.[32]
[32] Full Tribunal Hearing Transcript ts 8.
The Full Tribunal's Oral Reasons refer to the fact that NXD disputed drinking six bottles of wine daily and referred to the exchange with the Deputy President about why she could not recall.[33]
[33] Full Tribunal's Oral Reasons ts 8.
When NXD appeared before me, she repeated that she had been medicated when she was reviewed by Ms Parsons and that she had perfect liver function tests.[34] Her submissions did not otherwise explain this ground of appeal. I had difficulty discerning the precise nature of the error of law alleged.
[34] Appeal Hearing Transcript ts 80.
It is not apparent to me that the Full Tribunal made a finding that drank six bottles of wine in 2021. Although the Full Tribunal's Oral Reasons referred to NXD drinking six bottles of wine, this was in the context of it noting that NXD disputed that she had drank that much and that it appeared inconsistent that she could remember this, but not other matters. The Full Tribunal's Oral Reasons do not record it making a finding that NXD drank six bottles of wine in 2021.
Further and in any event, the materiality of this issue might be doubted.
The conclusions expressed by Ms Parsons were not only based on a review of this particular entry in NXD's medical notes. Ms Parsons reviewed NXD's medical history more generally, interviewed her and administered tests.
Nor was the particular entry in the hospital notes the only evidence that NXD had a historic alcohol problem. For example, the Full Tribunal also had before it a report from Dr Alistair Bennett who referred to NXD being a chronic heavy user of alcohol with little insight.
Further, the focus of the Full Tribunal's inquiry was NXD's capacity at the time of its review in 2025, rather than the position four years earlier in 2021. The Full Tribunal accepted that it was incumbent on it to assess the extent to which NXD had improved as she said she had abstained from alcohol.[35] The Full Tribunal accepted that NXD had improved but remained concerned about her capacity based on the evidence of Dr Lee and Dr Grant.[36]
[35] Full Tribunal's Oral Reasons ts 2.
[36] Full Tribunal's Oral Reasons ts 20.
For these reasons, I am not satisfied that NXD has established a prima facie case justifying an appeal on this ground. I will refuse leave to appeal on this ground.
Ground 6
Ground 6 was that the Full Tribunal erred in law by finding that NXD committed a fraud by altering the medical certification of Dr Shereen Awadalla dated 28 May 2024 after she received it and then filed it at the Tribunal.
NXD's submissions did not address this ground of appeal.
The Full Tribunal's Oral Reasons expressed scepticism about a medical certificate dated 28 May 2024 from Dr Shereen Awadalla. The Full Tribunal said the following about this document:[37]
[37] Full Tribunal's Oral Reasons ts 11.
The document titled Medical Certificate and dated 28 May 2024 has also been filed. It's signed by general practitioner, Dr Shereen Awadalla, and her name is in the same font as the first line which says that [NXD] attended the Floreat Forum General Practice on that date. What follows is in different font and is poorly phrased. So, for example, and I quote:
[NXD] believed that she has the capacity to make business decision, looking after herself and vote.
New sentence:
She said she had done her house renovations decision 2021 for over two years.
New sentence:
She believed that she can made a decision for her one-fifth share for the Claremont Medical Centre rather than paid.
There is then in the purported medical certificate reference to a brain scan. In a different font again it then says, and I quote:
From previous test results looks that she has not had a serious condition to stop her manage her life —
one word "herlife" —
by herself.
We are very sceptical that this document is what it purports to be. Rather, it would appear that a medical certificate, as in a document used to obtain time off work, has been altered so as to contain material favourable to [NXD's] preferred view of her own capacity. It is unclear who altered the document, but we give no weight to it, given that Dr Awadalla has not otherwise provided an explanation for those unusual and unexplained apparent changes to the document.
(emphasis added)
It may immediately be observed that while the Full Tribunal were plainly suspicious that the document had been altered, it made no finding about who altered the document. Significantly, it did not find that it was NXD who had altered the document and did not find that she 'committed a fraud'.
Although I had difficulty discerning the precise nature of the error of law alleged, I am satisfied that the Full Tribunal did not make the finding alleged. I am therefore not satisfied that NXD has established a prima facie case justifying an appeal on this ground. I will refuse leave to appeal on this ground.
Ground 7
Ground 7 was that the Full Tribunal erred in law by finding that NXD committed a fraud by altering a service provider report from Home Care Stirling dated 4 December 2024 which confirmed that NXD had the capacity to make her own decisions and live life independently.
NXD's submissions did not address this ground of appeal.
In the Full Tribunal's Oral Reasons, the Full Tribunal noted that Ms Trong's report 'contained curiously inconsistent material'. It said that the report said that, based on Ms Trong's observations of NXD since October 2024, Ms Trong thought that NXD was capable of making her own decisions and having an independent life. The Full Tribunal noted, however, that the same report said that NXD had not received any assistance from Home Care Stirling since September 2024. The Full Tribunal expressed difficulty understanding how Ms Trong could then have been in a position to express such an opinion.[38]
[38] Full Tribunal's Oral Reasons ts 15.
The Full Tribunal called Ms Trong on the telephone during the hearing. It said that Ms Trong confirmed she had filed a report but was unable to locate it. The Full Tribunal said that Ms Trong said that she had never met NXD, been to her house, observed her and never said that she could look after herself.[39]
[39] Full Tribunal's Oral Reasons ts 15.
The Full Tribunal said that Ms Trong later said that her 'team leader' had informed her of the relevant matters in her report. It said that it did not call the team leader because NXD had informed it that she had never met the team leader. The Full Tribunal indicated that in the circumstances it would attach no weight to Ms Trong's report.[40]
[40] Full Tribunal's Oral Reasons ts 16.
Thus, again, the Full Tribunal did not make a finding that NXD committed a fraud by altering Ms Trong's report. Rather, it concluded that little weight should be attached to the conclusion expressed in the report because it was hearsay and the opinion of someone who had never met NXD.
Again, although I had difficulty discerning the precise nature of the error of law alleged, I am satisfied that the Full Tribunal did not make the finding alleged. I am therefore not satisfied that NXD has established a prima facie case justifying an appeal on this ground. I will refuse leave to appeal on this ground.
Ground 8
Ground 8 was that the Full Tribunal erred in law by ignoring the medical reports of orthopaedic surgeon Dr David Graham dated 20 September 2024 and 3 December 2024 which confirmed NXD had the capacity to make medical decisions.
NXD's submissions did not address this ground of appeal.
As I understand this ground of appeal, it alleges that the Full Tribunal made an error of law by failing to take Dr Graham's evidence into account at all.
The Full Tribunal's Oral Reasons expressly referred to Dr Graham's reports. The Tribunal said:[41]
The third matter relied upon by [NXD] was a letter dated 3 December 2024 from Dr Graham, who operated on her shoulder in August 2024. In that letter Dr Graham describes [NXD] as "a model patient, attending all her appointments on time and following all post-operative restrictions and recommendations to the letter". He goes on to say that he was not "initially aware of her being under a guardianship order; however, the doctor's impression is that she managed her shoulder condition extremely well independently".
The difficulty for [NXD] in this regard is that the delegated guardian gave evidence, as we've just adverted to, that when Dr Graham became aware that [NXD] was under a guardianship order, he agreed to undertake the surgery only on condition that she have appropriate supports post‑surgery, and secondly, that [NXD] refused to allow those supports to assist her. In our view, it's significant in circumstances where [NXD] has been very quick to criticise and correct — including during the hearing — what she sees as factual inaccuracies, that she did not do so when she was given the opportunity to respond to the delegated guardian's evidence as just described.
Dr Graham's letter is inconsistent with the evidence of the delegated guardian as to [NXD's] post-surgery restrictions and recommendations. Dr Graham's letter says that [NXD] followed them, and the delegated guardian says she did not. In this regard, we note that the letter from Dr Graham is dated 3 December 2024 and is unsigned, but rather contains the words quote "AI generated letter" in the signature area.
We are minded to prefer the evidence of the delegated guardian in this regard because he gave evidence in person, whereas Dr Graham did not; secondly, because [NXD] did not disagree with the evidence given by the delegated guardian; and thirdly, because we assume Dr Graham's letter reflects [NXD's] version of events, and that her version of events was the only version given to Dr Graham. That would be consistent with her other behaviour in limiting information to other medical practitioners. We accept in this regard that [NXD] appears to have identified the need for treatment for her shoulder and arranged appointments with the surgeon. That tends to suggest that she is capable of making her own medical treatment decisions in her own best interests, but her apparent failure to follow postoperative arrangements does undermine that suggestion.
[41] Full Tribunal's Oral Reasons ts 17 - 18.
Thus, the Full Tribunal did not 'ignore' Dr Graham's reports as is asserted. The Full Tribunal took those reports into account but ultimately decided to prefer the evidence of the delegated guardian Mr Singh for the reasons that it gave.
I am not satisfied that NXD has established a prima facie case justifying an appeal on this ground. I will refuse leave to appeal on this ground.
Ground 9
Ground 9 was that the Full Tribunal erred in law by accepting Mr Singh's evidence, knowing he had engaged in misconduct towards NXD in supervising her home care by Home Care Stirling making her enormously overweight, a wheelchair based invalid and incontinent having the wear adult nappies. The ground alleges that this was despite the full Tribunal members observing photographic evidence of NXD proving that was true and had occurred.
NXD's submissions did not address this ground of appeal. As I understand it, it alleges that the Full Tribunal made an error of law by failing to take the photograph into account, or that the Full Tribunal's acceptance of Mr Singh's evidence was illogical or irrational, in light of the photograph.
The transcript of the hearing before the Full Tribunal on 25 February 2025 records NXD showing the Full Tribunal a photograph. At the time NXD asserted that Mr Singh had a copy of the photograph because he directed 'carers what medication to give [her]'.[42]
[42] Full Tribunal Hearing Transcript ts 33.
NXD did not submit to the Full Tribunal that the photograph established that Mr Singh engaged in misconduct while supervising her care, or that such misconduct should mean that his evidence should not be accepted.
NXD did not produce a copy of the photograph on the appeal, address what was in the photograph, or address how it established that Mr Singh engaged in misconduct. Nor did she explain why a finding that he engaged in such misconduct should result in his evidence being rejected.
Absent being provided with the photograph or any proper explanation of its relevance, it is not apparent to me that the Full Tribunal made an error of law by failing to take the photograph into account at all, or that the Full Tribunal's acceptance of Mr Singh's evidence was illogical or irrational.
I am not satisfied that NXD has established a prima facie case justifying an appeal on this ground. I will refuse leave to appeal on this ground.
Ground 10
Ground 10 was that the Full Tribunal erred in law by not accepting the evidence of NXD that Dr David Graham had approved NXD's recovery from her right shoulder operation was to be supervised by her friend and neighbour of 30 years Keith Butson.
NXD's submissions did not address this ground of appeal. As I understand it, it alleges that the Full Tribunal's rejection of NXD's evidence was illogical or irrational.
When NXD appeared before the Full Tribunal she said that Mr Singh wanted NXD to have carers after Dr Graham performed an operation on her but that she had made an arrangement with Mr Butson to check in on her on a regular basis. NXD told the Full Tribunal that Dr Graham agreed with this and notified Mr Singh accordingly.[43]
[43]Full Tribunal Hearing Transcript ts 29, ts 32.
Mr Singh gave a different account. He said that he spoke to Dr Graham and Dr Graham told him that it would be 'high risk' for NXD to be by herself and it was agreed that she have support services. He said that NXD then refused to accept those services.[44]
[44] Full Tribunal Hearing Transcript ts 40 - 41.
Although the Full Tribunal did not expressly find that it preferred Mr Singh's evidence to that of NXD in this regard, the Full Tribunal considered that NXD demonstrated lack of insight by failing to accept the prearranged services that Dr Graham had insisted upon.[45] Such reasoning was predicated on an acceptance of Mr Singh's evidence and the rejection of NXD's.
[45]Full Tribunal's Oral Reasons ts 20 - 21.
The Full Tribunal's preference for Mr Singh's evidence over that of NXD must be understood in the context of broader reservations that the Full Tribunal expressed about the credibility of NXD's claims. I have already mentioned these and will say more about them when I consider ground 11.
Considered in their proper context, it is not apparent to me that it was illogical or irrational for the Full Tribunal to prefer Mr Singh's evidence to that of NXD.
I am not satisfied that NXD has established a prima facie case justifying an appeal on this ground. I will refuse leave to appeal on this ground.
Ground 11
Ground 11 was that the Full Tribunal erred in law by failing to accept the Public Trustee engaged in misconduct towards NXD by depriving her of any money not only for food but to buy anything as a form of punishment for making each and every application to the Tribunal to have them removed resulting in NXD being forced to attend the Salvation Army for food and despite the full Tribunal members observing the Salvation Army EFTPOS card she was given and being advised that NXD was on the Salvation Army national register for the Public Trustee doing exactly that.
NXD's submissions did not address this ground of appeal. As I understand it, it alleges that the Full Tribunal's rejection of NXD's evidence was illogical or irrational.
NXD told the Full Tribunal that the Public Trustee had withheld money from her as a form of punishment.[46]
[46] Full Tribunal Hearing Transcript ts 32 - 33, ts 35.
The Full Tribunal rejected her evidence as 'baseless' and expressed reservations about NXD's reliability generally. The Full Tribunal explained its reasoning as follows:[47]
At the hearing before us, [NXD] repeated previous accusations to the effect that the Public Trustee had deliberately withheld funds from her in retribution for making an application for review of orders made about her. Those accusations were made by way of explanation for her reliance from time to time on the Salvation Army. There is no basis for that assertion, save for [NXD's] self-serving bare assertion. The accusation is entirely consistent with other complaints to which we have referred to above, that is, almost without exception, anyone who has made a decision inconsistent with [NXD's] view of her own interests is met with accusations of dishonesty, negligence, conflict of interest or some combination of those factors.
[47] Full Tribunal's Oral Reasons ts 13.
The Full Tribunal gave reasons for the conclusion that it reached. It is not apparent to me why those reasons might be illogical or irrational.
I am not satisfied that NXD has established a prima facie case justifying an appeal on this ground. I will refuse leave to appeal on this ground.
Grounds 12 and 13
It is convenient to address grounds 12 and 13 together.
Ground 12 was that the Full Tribunal erred in law by failing to accept the Public Trustee engaged in misconduct by failing to investigate NXD's minor criminal injuries compensation claim and reporting on it.
Ground 13 was that the Full Tribunal erred in law by failing to find the Public Trustee engaged in misconduct in failing to investigate a major fraud involving NXD's late mother's estate [redacted] and theft of part of NXD's inheritance money totalling $410,000.00 and failing to report on it.
NXD's submissions did not address these grounds of appeal. I understand them to allege that the Full Tribunal's rejection of evidence of such misconduct was illogical or irrational.
It is not apparent to me that NXD told the Full Tribunal that the Public Trustee had engaged in the misconduct referred to in these grounds, or offered any evidence that it had engaged in such misconduct. Nor is it apparent to me that the Full Tribunal failed to accept any such evidence.
I am not satisfied that NXD has established that the Full Tribunal's reasoning might be illogical or irrational.
I am not satisfied that NXD has established a prima facie case justifying an appeal on these grounds. I will refuse leave to appeal on these grounds.
Whether NXD required a next friend to bring these proceedings
Before concluding, it is appropriate that I say something about the capacity of NXD to bring this appeal.
On 29 April 2025, the solicitors acting for the Public Trustee and the Public Advocate wrote to the court, amongst other things, noting that O 70 r 2(1) of the Rules of the Supreme Court provides that persons acting under a disability cannot bring proceedings except by the person's next friend.
At a directions hearing held on 2 May 2025, the solicitor who appeared for the Public Trustee and the Public Advocate indicated that she did not have instructions to make an application for the appointment of a next friend. She also indicated that the Public Trustee and Public Advocate would likely file a notice of intention to abide and would not play an active part in the proceedings.
At a further directions hearing held on 9 May 2025, a solicitor again appeared for the Public Trustee and the Public Advocate. A solicitor also appeared for the Attorney-General for the State of Western Australia who sought leave to intervene in the proceedings.
I granted leave for the Attorney-General to intervene because I considered that it was in the interests of justice that there be a proper contradictor for the appeal. I am grateful that the Attorney-General decided to intervene in these proceedings. I have been considerably assisted by the submissions filed on his behalf.
At the hearing on 9 May 2025, I raised with those present the decision of Heenan J in Scates v State Administrative Tribunal[48] in which his Honour considered whether it was necessary for an appeal such as the present appeal to be conducted by a next friend. In that case Heenan J observed:
It is apparent that the reported cases in which a court has stayed the proceedings, or set aside a judgment and ordered a retrial, or taken similar relief are ones in which it was unequivocally the case that the person concerned was under a disability either because of infancy or because of unchallenged mental incapacity. In those instances, the situation is plainly within the scope of O 70 r 2 or comparable rules and, where the point is taken by an opposing person, or the disabled person, the court must act appropriately.
However, the situation is somewhat different in instances, such as the present, where the person alleged to be under a disability directly challenges the contention that he or she is under the alleged disability and claims that she is not a person who requires the appointment of a next friend. In the present case, that very question was agitated in SAT and was determined adversely to Mrs Scates. Now, in pursuit of an uncontested right to apply for leave to appeal, she wishes to have the correctness of that decision reviewed. A determination by this court that she may not do so unless she brings the proceedings by a next friend would prevent her from doing so by relying upon the very conclusion which she desires to contend was wrongly decided and so allow that determination to prevent the judicial review which she is seeking. If, before this application for leave to appeal proceeded any further, the court was to direct that an inquiry be conducted over the question of whether or not Mrs Scates was a person under a disability, that would mean that the inquiry would be required to determine the substantial point which she seeks to have raised by this application for leave to appeal.
[48] Scates v State Administrative Tribunal [2011] WASC 319 (Scates) [16] - [17].
Heenan J decided that the correct approach was that the question of whether or not the appellant was disabled from bringing proceedings in her own name should be regarded as remaining a contentious issue and that it was the purpose of the application for leave, and of any appeal if leave is granted, to decide whether or not that was so. He reasoned that the decision under challenge should not be treated as a basis for obliging the appellant to appear through the appointment of a next friend.[49]
[49] Scates [19].
I informed those appearing on 9 May 2025 that it seemed appropriate for me to proceed on the same basis in this case. Counsel for the Public Advocate, the Public Trustee and the Attorney-General agreed that this was the correct approach to adopt.
After this hearing, the Public Advocate and the Public Trustee ceased to play any active role in these proceedings.
Conclusion
For the reasons I have given in relation to each of NXD's proposed grounds of appeal, I will refuse leave to appeal on all of the proposed grounds of appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CN
Associate to the Judge
4 JULY 2025
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