S v State Administrative Tribunal of Western Australia [No 2] - [2012] WASC 306

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: S -v- STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA [No 2] [2012] WASC 306

CORAM: EM HEENAN J

HEARD: 4 & 5 APRIL 2012

DELIVERED : 29 AUGUST 2012

FILE NO/S: GDA 8 of 2011

MATTER :The Guardianship and Administration Act 1990 (WA) and State Administrative Tribunal Act 2004 (WA)
and
Case Number GAA 1729 of 2010 and 1730 of 2010 in the State Administrative Tribunal of Western Australia at Perth

BETWEEN: S
Applicant
AND
STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
First Respondent
THE PUBLIC TRUSTEE
Second Respondent
THE PUBLIC ADVOCATE
Third Respondent

ON APPEAL FROM:
For File No               :  GDA 8 of 2011
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MS D TAYLOR (SENIOR MEMBER) MS V O'TOOLE (SENIOR SESSIONAL MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
File No  :GAA 1729 of 2010, GAA 1730 of 2010

Catchwords:

Administrative law - State Administrative Tribunal - Guardianship and administration - General principles of legislative scheme - Nature of hearing - Practice and procedure - Appeals - Origin and nature of rights to appeal - Review orders - Original jurisdiction - Review jurisdiction - Whether O 70 r 2 prevents a 'represented person' instituting and maintaining an appeal without a next friend - Significance of 'parens patriae' jurisdiction - Differing compositions of SAT panels - Obligation to accord procedural fairness - Obligation to act according to equity, good conscience and the substantial merits of the case - Exclusion of rules of evidence - Right to confront evidence relied on and to cross-examine - Procedural implications - Bias - Actual or ostensible - Need to rule on submission of bias - Need to obtain suitably qualified expert medical opinion - Proved mental disability as a pre-requisite for an administration order - New evidence or fresh evidence on appeal - Liability for compensation or restitution for property and financial transactions completed in reliance on order later set aside

Legislation:

Guardianship and Administration Act 1990 (WA)
State Administration Tribunal Act 2004 (WA)
Supreme Court Act 1935 (WA

Result:

Appeal allowed
Guardianship order and administration orders set aside
Original application to SAT dismissed

Category: A

Representation:

Counsel:

Applicant:     Mr G Cridland
First Respondent           :     No appearance
Second Respondent       :     Mr L A Tsaknis
Third Respondent         :     Mr A J Sefton

Solicitors:

Applicant:     Legal Aid (WA)
First Respondent           :     No appearance
Second Respondent       :     Public Trustee (WA)
Third Respondent         :     State Solicitor for Western Australia

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

A v A Health Authority; J A Child, Re (Fam D) [2002] 3 WLR 24; [2002] EWHC 18 (Fam)
Allregal Enterprises Pty Ltd v Carpaolo Nominees (No 2) [2009] WASCA 55
Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
British Imperial Oil Company Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422; [1925] HCA 4
Cadwallender v The Public Trustee [2003] WASC 72
Carseldine v Director of Department of Children's Service (1974) 133 CLR 345
Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
Chin v Legal Practice Board of Western Australia [2009] WASCA 117
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220
Commonwealth v McCormack (1984) 155 CLR 273; [1984] HCA 57
Cooper v Dummett [1930] 2 WN 248
Department of Health and Community Services (NT) v JWB and SMB (Marion's case) (1992) 175 CLR 218; [1992] HCA 15
Director‑General v T'Hart (2003) 27 WAR 185; [2003] WASCA 110
Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46
Fletcher (as trustee of the Brian Fletcher Family Trust) v St George Bank Ltd [2010] WASC 75
Fry v Fry (1889) 15 P D 25
G v K [2007] WASC 319
Gosford Meats v State of New South Wales (1985) 155 CLR 368; [1985] HCA 5
Ha v New South Wales (1997) 189 CLR 465; [1997] HCA 34
Hartwig v Builders Registration Board of Western Australia [2009] WASCA 138
Hill v Green; Young v Buckley [1999] NSWCA 477; (1999) 48 NSWLR 161
John Pfeiffer v Rogerson (2000) 203 CLR 503
Jones v Moylan (1997) 18 WAR 492
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
MacIntosh v Lobel (1993) 30 NSWLR 441
Minister for Health v AS [2004] WASC 286
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Morris v Zanki (1997) 18 WAR 260
O'Dea v Allstates Leasing System WA Pty Ltd (1983) 152 CLR 359
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Public Service Association of South Australia Inc v Industrial Relations Commissioner of South Australia [2012] HCA 25
Questa Pty Ltd v Millrock Resources Pty Ltd [2012] WASC 267
R v Anderson; Ex parte Ipec‑Air Pty Ltd (1965) 113 CLR 177; [1965] HCA 27
R v Elliott [1955] VLR 126
Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36
Re E (1987) 31 DLR (4th) 1; [1986] CLB 566
Re Ronald Norman Collins v Repatriation Commission [1980] FCA 105; (1980) 48 FLR 198
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
S v State Administrative Tribunal of Western Australia [2011] WASC 319
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Secretary Department of Premier and Cabinet v Hulls [1999] 3 VR 331
SG v AG [2008] WASC 123
TK, PB and LS v Australian Red Cross Society (1989) 1 WAR 335
Town of Cottesloe v Multiplex (Marine Parade) Pty Ltd [2007] WASCA 113
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
VJC v NSC [2005] QSC 68
Weldon v Neal (1887) 19 QBD 394

Note: This version of these reasons has been edited and redacted to remove material which would identify the appellant or witnesses in the proceedings before SAT. The unedited copy of reasons supplied to the parties and forming the Court record remains the authentic copy of these reasons but is subject to the suppression order made earlier.

EM HEENAN J: This is an appeal by leave by Ms S from certain orders of the State Administrative Tribunal (SAT) made under the provisions of the Guardianship and Administration Act 1990 (WA) (the G & A Act) appointing the Public Trustee her limited administrator and the Public Advocate her limited guardian on 5 February 2010; a further order made by SAT on 17 March 2010 amending the earlier administration order of 5 February 2010, again appointing the Public Trustee as her limited administrator but with greater powers; and then further orders made by a three‑member tribunal of SAT on 24 November 2010, which resulted in the Public Trustee being appointed Ms S's plenary administrator and the Public Advocate her limited guardian.

Appearance by first respondent

A submitting appearance has been filed on behalf of the first respondent but, as one would expect, there have been no submissions filed nor counsel appearing for the first respondent.

Restriction on publication

Under cl 12 of sch 1 to the G & A Act there are extensive provisions limiting the dissemination or publication of details of proceedings under the Act which might tend to identify a party to the proceedings, parties related to them or witnesses or other identifying material. They indicate the need to exercise sensitivity and to respect the privacy of any person associated with such proceedings and these considerations also support the application by the appellant that her name should not be disclosed outside this courtroom and for a suppression order to be made to that extent.

Suppression order

By an order made at the commencement of the hearing of the appeal on 4 April 2012 I directed that there should be no reference to the name of the appellant outside the courtroom and that the only identifying characteristic is to be the use of the letter 'S'. It is for this reason that there will be two sets of reasons for decision delivered in this appeal ‑ one, the use of which will be restricted to the court and to the parties, is subject to the existing suppression order forbidding disclosure beyond the parties, their counsel, solicitors and court officers. The second will be a set of reasons in which the appellant is referred to simply as 'S' and the contents of which have been edited in such a way as to refer to her only by the letter 'S' and, where necessary, to remove, change or redact other identifying material or references.

Rights of appeal

A right of appeal to this court by leave from decisions of the SAT is granted by two legislative provisions ‑ s 19 of the G & A Act and s 105 of the State Administrative Tribunal Act (SAT Act). This conclusion was contested by the respondents. The details of its resolution are set out later. Importantly, there are some significant differences in the nature and extent of the rights of appeal available under those two provisions.
By s 19 of the G & A Act an appeal by leave lies to a single judge of this court from a determination of the SAT when constituted by three members not including the President (or to the Court of Appeal if composed by the President) but otherwise there is no appeal from a determination of the SAT. By s 20(2) one application for leave to appeal may be made in respect of two or more determinations given at the same hearing and appeals for which leave is granted shall be consolidated unless, or except to the extent that, the court otherwise orders. As to the available grounds for such an appeal under the G & A Act s 21 provides:
21.An application for leave to appeal may only be made on a ground or grounds coming within the following ‑
(a)that the State Administrative 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.
Consequently, an appeal by leave from decisions of a three‑member SAT lies in the present case on grounds of error of law or fact, or acting without or in excess of jurisdiction or if there is some other reason sufficient to justify a review of the determination. This means that, insofar as the present appeal relies upon rights of appeal under s 19, it lies only in respect of the decision of the three‑member SAT tribunal made and given on 24 November 2010 and not in respect of the anterior orders of a single member of the SAT made on 5 February and 17 March 2010.
By contrast, the right of appeal by leave to this court available under s 105 of the SAT Act can only be brought on a question of law and lies to a single judge unless the decision of SAT was made by a judicial member or by a tribunal constituted by members who include a judicial member. Therefore, while the right of appeal by leave under s 105 of the SAT Act is available only on a question of law, it will, nevertheless, lie from a decision of a single member of SAT or from the decision of a three‑member tribunal of SAT not including a judicial member. In the present case this therefore means that a right of appeal on a ground of law under s 105 lies from each of the five decisions of SAT and not merely the decisions of the three‑member tribunal.
Leave to appeal on all the grounds specified in the original appeal notice of 27 April 2011 was granted by Hall J on 19 May 2011. Those grounds were further amended and reamended by leave granted on 12 August 2011 and 5 April 2012.

Conspectus

Ms S was born [in 1932], is single and until 8 October 2009 had been living alone at the house which she owned unencumbered at Bentley. Her mode of living and lifestyle [there] was eccentric and gave rise to concern by a number of people. The house was badly dilapidated and neglected. The gardens and surrounds were very run down. She was a hoarder and her hoarding had reached such an extent that the very cluttered interior of the house became a source of infestation by various vermin. The electricity had been disconnected. On 7 January 2010 the City of Canning issued a notice under s 135 of the Health Act 1911 (WA) in respect of the property. It alleged that the house was 'unfit for human habitation by reason of uncleanliness and want of repair' and it required the completion of a schedule of cleaning and repairs within 60 days.
Ms S had been admitted to Bentley Hospital [in October] 2009 where a doctor, who met her for the first time on admission, later completed a report on 22 December 2009 recording she had mild cognitive impairment and impaired executive functions. This doctor also observed that she had limited insight into her living and financial arrangements; that her decision‑making ability was impaired, that her judgments were poor and not well thought out, and that this was unlikely to improve. That report accompanied an application dated 22 December 2009 under the G & A Act for guardianship and administration orders regarding Ms S. That was made by a social worker at the Bentley Hospital, Ms MP, who also had only met Ms S on, or shortly after, her admission.
It will be necessary to follow the course of that application and its sequels in some detail. For the moment, the major steps in the process and their consequences are recorded as follows:
(a)On 5 February 2010 there was a hearing before SAT constituted by a single member, Dr Stepniak. Although present, and when still a patient at Bentley Hospital, Ms S was not represented. It emerged that her estate comprised of the house and land at Bentley and some $72,000 in bank or similar deposits. Orders were made appointing the Public Trustee as Ms S's limited administrator, revoking a power of attorney dated 21 January 2010 by which she had appointed a long‑standing friend, Mrs L, as her enduring attorney, and the Public Advocate was appointed as her limited guardian. At that hearing the SAT orders directed that they should be reviewed by 5 August 2010.
(b)[In] February 2010 Ms S was discharged from Bentley Hospital and moved to care awaiting placement at a residential facility known as Rowethorpe.
(c)On 17 March 2010 there was a further order made by SAT by Dr Stepniak. Ms S was not present or represented. The order was made without any notice to her. This made an amendment to the administration order made on 5 February 2010 by enlarging the power of the limited administrator.
(d)In April 2010 Ms S was moved from the Rowethorpe facility to Hilltop Hostel, Bentley. On her behalf, the Public Trustee entered into an agreement with Uniting Church Homes to obtain a residential unit at [suppressed] and to pay an accommodation bond of $450,000 plus interest until full payment. Ms S did not agree to that course and was very much opposed to the move and to the purchase of the accommodation bond on her behalf.
(e)In July 2010, without notice to Ms S and without her approval, the Public Trustee arranged for the demolition of her house at [suppressed] Bentley, and the removal of all the contents. This was, so it was claimed, because the house was unfit for habitation and because the expense of restoring it to a habitable state would be prohibitive. Only perfunctory efforts were made to investigate the possibility and costs of repair and restoration. The only contractor asked to quote and advise did not go inside the house. It is said by the Public Trustee that efforts were made to preserve Ms S's personal property within the house, including cherished personal items accumulated over a lifetime, but no details of how this was to be done or by whom have ever been supplied. In the event, the entire contents and all Ms S's personal belongings have gone ‑ lost or destroyed ‑ no‑one will say which.
(f)On 3 August 2010 the solicitor acting for the first time for Ms S applied to SAT for a review of the orders made on 5 February. There was a hearing before Dr Stepniak sitting as SAT on 6 August 2010 at which counsel appeared for Ms S. There was an issue raised about access by Ms S's counsel to material documents and Dr Stepniak adjourned the matter to a three‑member SAT panel to review his earlier determinations. One of the major contentions for the appellant now is that a review of the earlier decisions under s 17A of the Act should have been ordered and conducted and that the particular review which was conducted under s 84 was inappropriate, inadequate and wrongly constituted.
(g)By formal application dated 3 September 2010 and again by later oral submissions, counsel for Ms S objected to Dr Stepniak sitting on the three‑member review panel on grounds of actual or ostensible bias. The SAT panel declined to deal with these applications.
(h)On 7 September 2010 the three‑member SAT tribunal first convened, consisting of Ms Taylor, Ms O'Toole and Dr Stepniak. Again Ms S was represented and by her counsel she made it clear that she had no wish to remain at [suppressed] Hostel, Bentley, that she remained opposed to the purchase of the accommodation bond, and that she wanted to return to her home at [Bentley]. That, of course, was impossible because by then her house had been demolished. In the circumstances, she made it clear that she wished to live independently. On that occasion, the three‑member tribunal of SAT eventually decided to obtain a further medical report but directed that all existing orders remain in operation for the time being.
(i)On 24 November 2010 the same three‑member panel of SAT resumed hearing the 'review' and associated application. After hearing counsel for Ms S, this panel ordered that the original orders of 5 February 2010 be amended, that the Public Advocate remain as limited guardian of Ms S, and that the Public Trustee be appointed her plenary administrator. It directed that the new orders should be reviewed on 24 November 2015. It rejected applications previously made by Ms S's counsel to revoke the earlier orders or to make more limited orders which would allow her to live independently in a place of her choosing.
In implementation of these orders the Public Trustee sold the vacant land owned by Ms S at [suppressed] Bentley, in May 2011 for $500,000. After all selling costs, the net proceeds amounted to $489,000. From that sum the Public Trustee paid United Church Homes $450,000 plus about $32,000 in interest which had accumulated from the date she had gone into [suppressed]. The remaining funds ‑ approximately a mere $7,000 ‑ were placed in an account. By early December 2011 Ms S had $58,000 in assets, representing what was left of her estate. She was in receipt of a single person's pension and, against her wishes, was still living at [suppressed] Hostel, paying rent.

Grounds of appeal

The notice of appeal, as amended, has regard to the different grounds of appeal available in the case of an appeal from a three‑member tribunal on the one hand and from a single member tribunal on the other. It provides:
Errors of Fact and/or Law by the Three Member Tribunal (SM Taylor, SSM O'Toole and SSM Stepniak
1.In the making of the guardianship and administration orders in relation to S ('the Appellant') the State Administrative Tribunal ('the Tribunal') made orders which were not necessary in the circumstances.
2.The evidence before the Tribunal was equivocal and in the context of the seriousness of the allegations made and gravity of the adverse consequences for the appellant (see Briginshaw v Briginshaw (1938) 60 CLR 336 per Sir Owen Dixon at 361 ‑ 2) did not support a positive finding displacing the statutory presumption as to capacity in section 4(3) of the Guardianship and Administration Act 1990 ('the Act').
3.In the making of the guardianship and administration orders in relation to the Appellant, the Tribunal failed to give proper consideration to the interests of the Appellant which under section 4(1) and (2) of the Act must be its sole and only primary concern, and gave too much consideration to the interests either individually or in combination of other parties and persons including the Public Trustee (the 'Second Respondent'), the Public Advocate (the 'Third Respondent'), Uniting Church Homes and the City of Canning.
4.The needs of the Appellant could have been met by means less restrictive than guardianship and administration orders.
5.The extent of the administration order could have been less extensive than a plenary administration order.
6.The extent of the guardianship order could have been less extensive than the guardianship order made.
7.The Tribunal failed to carry out a proper review of the effect of the guardianship and administration orders upon the well being of the applicant.
8.The Tribunal failed to properly review the actions of the appointed guardian and administrator and properly assess the appropriateness of their continuing appointments or the making of alternative appointments.
9.The Tribunal failed to have due regard for the well‑founded grievance of the appellant arising from the actions of the Second Respondent (the Public Trustee) which caused grave financial and personal loss to the appellant.
10.The Tribunal erred in not exercising its discretion to obtain independent expert evidence to assist it to determine the issues before it in circumstances where the medical and other evidence was equivocal (see Briginshaw v Briginshaw (1938) 60 CLR per Sir Owen Dixon at 361 ‑ 2).
11.The review process was irretrievably flawed by the presence in the review decision making panel of the original decision maker (Senior Sessional Member Mr D Stepniak) in circumstances where the review was in all relevant respects a review process of the nature provided for by section 17A of the Guardianship and Administration Act 1990 involving an aggrieved party challenging the decision of the original decision maker.
12.The review process was flawed by the non‑availability of the appellant's then counsel of documents important to the presentation o f the appellant's case.
Errors of Law by the Initial Tribunal (SSM Stepniak)
13.In the making of findings (which allowed the initial guardianship and administration orders) in relation to the Appellant on 5 February 2010 the Tribunal (made up of Senior Sessional member Mr D Stepniak) failed to afford the Appellant procedural fairness in that the Appellant, being a simple and unsophisticated person who was not legally represented, was not provided with access to evidence considered and relied upon by the Tribunal and the Appellant was thus precluded from responding to or contradicting the evidence relied on by the Tribunal.
13A.The Tribunal (made up of Senior Sessional Member Mr D Stepniak) on or around 17 March 2010 failed to afford the Appellant procedural fairness in that Tribunal:
(a)considered correspondence from the Second Respondent dated 15 March 2010 which was addressed only to the Tribunal, and
(b)failed to notify the Appellant of the correspondence or the matters raised therein, and
(c)amended the 5 February 2010 administration orders relating to the Appellant without providing the Appellant with the opportunity to be heard on the matter or respond to the matters raised in the correspondence of the Second Respondent dated 15 March 2010.
14.In the making of findings (which allowed the initial guardianship and administration orders) in relation to the Appellant on 5 February 2010 the Tribunal (then made up of Senior Sessional Member Mr D Stepniak) relied upon evidence (a written report) of Dr W which did not exist and/or the evidence of Dr T which had its probative value based on the non‑existent written report of Dr W.
15.The evidence before the Tribunal was equivocal and in the context of the seriousness of the allegations made and the gravity of the adverse consequences for the Appellant (see Briginshaw v Briginshaw (1938) 60 CLR 366 per Sir Owen Dixon at 361 ‑ 2) did not support a positive finding displacing the statutory presumption as to capacity in section 4(3) of the Guardianship and Administration Act 1990 ('the Act').

Principles to be observed by the State Administrative Tribunal on applications under the G & A Act

There is a set of principles which must be observed by SAT when dealing with proceedings commenced under the G & A Act. These are mandated by s 4(1) and the six principles follow in the succeeding subsections:
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of ‑
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be on terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on a person's freedom of decision and action.
(7)In considering any matters relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.

One or two avenues of appeal?

The existence of a right of appeal by leave from a decision of the SAT to this court established by s 105 of the SAT Act and also a right of appeal by leave established by s 19 of the G & A Act gave rise to an issue over whether these sections create two distinct avenues of appeal, by leave (the position adopted by the appellant) or whether the combined effect of the two provisions is that s 19 of the G & A Act and accompanying sections establish a scheme of appeal which excludes recourse to s 105 of the SAT Act and which contains its own self‑contained comprehensive limit on applications for leave to appeal from any decision of SAT under the G & A Act (the position adopted by counsel for the second and third respondents).
The second and third respondents pointed to the following features of the right to apply to this court for leave to appeal under s 105 of the SAT Act. First, any such appeal can only be brought on a question of law (s 105(2)). It is implicitly accepted by s 105(12) that an application for leave to appeal and any ensuing appeal may be made from a decision of the SAT either in its original jurisdiction or in its review jurisdiction. The substance of the submissions advanced by the respondents is that these provisions in s 105 of the SAT Act constitute a general scheme governing applications for leave to appeal and ensuing appeals from all or any decisions of SAT made in or in respect of its entire jurisdiction, which is very wide and various ‑ that is, unless otherwise provided. Importantly, but as already mentioned, the right to apply for leave to appeal applies in respect of a decision either by a single member of SAT or by a three‑member tribunal but in either case, except as provided by s 105(13), can only be brought on a question of law.
By contrast, the right to apply for leave to appeal under s 19 of the G & A Act confers a right to appeal by leave of this court only from the determination of the SAT when constituted by three members. Section 19 expressly provides that otherwise there is no appeal from a determination of the SAT. Section 19 also provides that the right to apply for leave to appeal from a three‑member SAT not including the President will lie to a single Judge of this court, whereas the right to apply for leave to appeal from a three‑member tribunal including the President will lie only to the Court of Appeal. This right to apply for leave to appeal is restricted by s 21 of the G & A Act but includes a right to apply for leave in the case of an error of fact (s 21(a)(i)) or if there is some other reason that is sufficient to justify a review of the determination, so that, by contrast to s 105 of the SAT Act, the application for leave to appeal and any ensuing appeal is not restricted to a question of law. Section 19 of the G & A Act is part of legislation which deals extensively with the exercise of the powers and functions under the G & A Act.
Included in the G & A Act is div 2A, which provides for a review of a determination where the SAT is comprised by one member. This includes s 17A providing for a review by a full tribunal at the request of the party aggrieved by any determination of the SAT consisting of one member. Part 7 provides for periodical reviews, some of which may be mandatory by the SAT, of any guardianship or administration order or an order affecting such an order, and s 86 provides for a review of a guardianship order or an administration order by SAT at any time on application of designated parties or, under s 87, the application of any person.
There is nothing in the G & A Act to specify or require whether any particular matter or review should be determined by the SAT sitting as a single member or as a three‑member tribunal except for s 17A (a review at the instance of a person aggrieved) where the review jurisdiction is to be exercised by a full tribunal (that is, the SAT constituted so as to consist of the President or a Deputy President and two other members). Save for s 17A, in reviews under the G & A Act, the constitution of the SAT is determinable by the President under s 11 of the SAT Act, which provides that it is not to be constituted by more than three members except that the President can specify that it is to be constituted by four or five members if it is appropriate to do so in particular circumstances (s 11(2) and s 11(3)) or where the SAT is dealing with a decision of a vocational regulatory body (s 11(4)) where the SAT is to be constituted by three members.
It follows from these provisions that a decision or a determination under the G & A Act (except for a s 17A review at the instance of an aggrieved person) may be by a SAT constituted by a single member, even in the exercise of its remaining review jurisdiction. Consequently, there are likely to be many decisions or determinations of SAT under the G & A Act which are not made by a three-member SAT and which, therefore, would not give access to a right to apply for leave to appeal under s 19 of the G & A Act.
This specific limitation on the right to apply for leave to appeal from a determination of SAT under s 19 of the G & A Act has led the respondents to submit that 'otherwise there is no appeal from a determination of the SAT' under the G & A Act and, as a consequence, there is no access to the more general right to apply for leave to appeal under s 105 of the SAT Act. In this respect, counsel for the second and third respondents cite the decisions of this court in G v K [2007] WASC 319 and SG v AG [2008] WASC 123 in support of their submissions that s 19 limits the avenues for leave to appeal from a decision or determination of the SAT when exercising jurisdiction under the G & A Act.
G v K is a case in which the applicant for leave to appeal from a decision of a three‑member SAT panel appointing her daughter as limited guardian of her grandson resulted in the appeal being allowed. This was an application for leave to appeal to a single Judge and it is evident that Jenkins J considered that the right to apply for leave to appeal existed under s 19 and s 21 of the G & A Act on grounds that the SAT had made an error of law or fact or both law and fact. In doing so, her Honour rejected a submission of the first respondent that the applicant could only seek leave to appeal on a question of law ‑ the basis for that submission does not emerge from the reasons of her Honour but, in context, it must be regarded as a reference to s 105(2) of the SAT Act. Her Honour said of that submission:
This was incorrect as the provisions of the Guardianship and Administration Act apply, and despite the enactment of the State Administrative Tribunal Act 2004 (WA) [8].
Although her Honour accepted that an error of law or fact would provide a basis for the grant of leave to appeal under s 19 of the G & A Act, this cannot be taken as any determination that there was no scope to apply for leave to appeal, in a suitable case, under s 105 of the SAT Act.
SG v AG is a decision by Templeman J on an application for leave to appeal brought under s 105 of the SAT Act against a decision made by a three‑member SAT panel under s 64 of the G & A Act appointing a plenary administrator and revoking an enduring power of attorney. His Honour granted leave to appeal [45] but ultimately dismissed the appeal. Despite the reference to the appeal being brought under s 105 of the SAT Act [1] Templeman J observed at [38] ‑ [40]:
[38]The appeal is brought under div 3 of the Guardianship Act. That is so, despite the fact that the SAT Act has its own appeal provisions: G v K [2007] WASC 319 [8]. This is because the Parliament accepted the submission made by the then Chief Justice to the effect that the Supreme Court should retain its direct supervision of the Tribunal when dealing with matters arising under the Guardianship Act, in the exercise of part of the Supreme Court's inherent jurisdiction.
[39]This result was achieved by s 466(1) of the State Administrative Tribunal (Conferral and Jurisdiction) Amendment and Repeal Act 2004 (WA) which preserved the appeal provisions of the Guardianship Act by replacing references to the Guardianship and Administration Board with references to the Tribunal.
[40]Where, as here, the Tribunal is constituted by three members not including the President, an appeal lies to a single Judge of this court, by leave: s 19(a).
Accordingly, the implication from this decision is that avenues to apply for leave to appeal from a decision of SAT under the G & A Act exist both under s 105 of the SAT Act and s 19 of the G & A Act. Like the decision in G v K, the decision in SG v AG involved an application for leave to appeal from a decision of a three‑member SAT and on grounds not restricted to questions of law. In such cases there would remain 'direct supervision of the tribunal' by this court when exercising its appellate jurisdiction under s 19 of the G & A Act because the supervision would not be restricted only to questions of law. Nevertheless, 'direct supervision' would be confined to decisions or determinations of a three‑member SAT and not to a decision of a single member SAT which, as already explained, could involve decisions of far‑reaching significance.
Acceptance of the submissions for the second and third respondent that no right of appeal from a decision or determination of SAT made under its powers under the G & A Act arises under s 105 of the SAT Act would, therefore, mean that there was no avenue to apply for leave to appeal to this court from a decision of a single‑member SAT. That would not necessarily mean that this court would have no direct supervision over such decisions of SAT made under the G & A Act because, by virtue of s 3A of that Act, this court retains its powers of judicial review by certiorari, prohibition, mandamus, declaration or injunction in respect of those decisions.
None of this amounts to a reason to conclude that the right to apply for leave to appeal under s 105 of the SAT Act on solely a question of law under the G & A Act has been expressly or implicitly removed. Such an avenue of appeal would in many cases provide a simpler procedural method of obtaining judicial review by this court than the older forms of judicial review. It would not, at least in most cases, appear to confer any wider or narrower power of review. It would be strange indeed if s 19 of the G & A Act were to have the effect of excluding, by implied amendment, the power to apply for leave to appeal on a question of law from a decision of a single member of SAT. There is no reason advanced to reach such a conclusion, nor is there any evident policy discernible from either Act which might lead to any such inference. The better view, therefore, is that two separate avenues to apply for leave to appeal from decisions of SAT exercising jurisdiction under the G & A Act may exist simultaneously. These are under s 19 of the G & A Act and s 105 of the SAT Act although, as already explained, there are material differences in the content of these and from how the SAT is constituted before they apply.

Practical significance of the nature and origin of right of appeal

The conclusion that two avenues to apply for leave to appeal from a determination of SAT exercising power under the G & A Act exist, while important and significant in itself, can have little impact on the outcome of these current proceedings. It means that an application for leave to appeal can be made from a decision either of a single member or a tribunal consisting of three members under s 105 but only on a question of law. It also means that an application for leave to appeal can also be brought on grounds of an error of law or fact or both, or acting in excess or without jurisdiction, or because there is some other reason that is sufficient to justify a review of the determination under s 19, but only from the decision of the SAT constituted by three members.
In the event of an appeal brought pursuant to leave granted under s 19, the power of the court on the appeal is set out in s 30 of the G & A Act, which includes the powers to ‑ 30(1):
(a)confirm, set aside or vary the determination of the SAT and any order made or thing done as a result of the determination;
(b)substitute a determination that could be made under the Act;
(c)remit the case for redetermination by the SAT with or without any direction to the tribunal;
(d)exercise any power that the court may exercise on an application for certiorari, mandamus, prohibition or habeas corpus;
(e)make such other orders as it thinks fit including an order for costs.
Consequently, although these powers may only be exercised in relation to decisions or determinations of the SAT consisting of three members ‑ meaning in the present case the decision or determination made on 24 November 2010 at the so‑called s 84 review, the powers under s 30(1)(b) and (d) would allow this court to set aside, vary or quash the orders made by the single member tribunal which were then the subject of application or review to the three‑member tribunal. These include the orders of Dr Stepniak of:
•5 February 2010
•17 March 2010 (made in absentia)
•6 August 2010 (the application to rescind previous orders be dismissed)
•13 August 2010 (the refusal of the application for Dr Stepniak to be disqualified or recused from hearing the matter)
Similarly, the right to seek leave to appeal under s 105 of the SAT Act also means that any or all of the foregoing decisions, being those of the single‑member tribunal constituted by Dr Stepniak or the three‑member tribunal which convened on 23 September 2010 and which resumed and made orders on 24 November 2010, may be the subject of a decision of this court under s 105(9), namely to:
(a)affirm, vary or set aside the decision of the tribunal;
(b)make any decision that the tribunal could have made in the proceeding; or
(c)send the matter back to the tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate and, in any case, make any order the court considers appropriate
as prescribed by s 105(9) of the SAT Act, as already stated, but only if the appeal is brought on a question of law.

Leave to appeal

As earlier noted, any rights of appeal to this court from a decision of SAT, whether pursuant to s 19 of the G & A Act or s 105 of the SAT Act is only by leave (s 19 to s 22 of the G & A Act and s 105(1) of the SAT Act). I have already noted that leave to appeal on all the grounds specified in the original notice of appeal was granted by Hall J on 19 May 2011 and that I gave leave to amend the notice of appeal on two subsequent occasions.
This is because there is a real or significant argument to be put on the questions of law raised and that there is a sufficient doubt about them to justify the grant of leave to appeal ‑ see Secretary Department of Premier and Cabinet v Hulls [1999] 3 VR 331 [16] and Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [17], and it is in the interests of justice that there should be a grant of leave: Chin v Legal Practice Board of Western Australia [2009] WASCA 117 [12] and Town of Cottesloe v Multiplex (Marine Parade) Pty Ltd [2007] WASCA 113 [15].
However, there seems to have been an impression that the application for leave to appeal and an associated question of whether the appellant was a person under a disability were to be treated as subject to final determination. This at least is the position of the second respondent as set out in its written submissions [66]. This relies on the decision which I gave on an interlocutory application in S v State Administrative Tribunal of Western Australia [2011] WASC 319 [21]. It is indeed the case that in the course of that decision I referred to the application then pending by Ms S as an application for leave to appeal and proceeded on the footing that the application for leave to appeal remained to be determined. In fact, by the date of that decision, 25 October 2011, leave to appeal by Hall J, as already noted, had already been granted. The true position is that, by then, leave had been granted and leave to amend the proposed grounds of appeal was later given. So the present hearing must proceed and be determined on the footing that leave to appeal has been granted.

Must the appellant have a next friend?

The questions of whether there should have been a grant of leave to appeal and whether the appellant is competent to pursue this appeal rest not on the proposed merits of any of the grounds of appeal but on submissions by the respondents that because of the orders already made by SAT Ms S is a 'represented person' who, because of the provisions of O 70 r 1 of the Rules of the Supreme Court1971 (WA), is a person under a disability and who, by r 2 of that order, may not bring or make a claim in any proceedings except by a next friend. The objection was that in these proceedings Ms S is attempting to appeal on her own behalf without a next friend. I adverted to the issues which arose as a result of this submission and the special circumstances of this case in S v State Administrative Tribunal of Western Australia [8] ‑ [21] and referred to a number of applicable authorities of which Fry v Fry (1889) 15 P D 25 appeared to deal with a situation closest to that under present consideration. My ultimate conclusions are contained in [18] ‑ [21] where I observed:
In Fry v Fry (1889) 15 P D 25 an order had been made under a rule of court appointing a guardian ad litem to a person alleged to be of unsound mind who sought to commence proceedings for a declaration that her marriage with the respondent was null and void on the ground that at the time of the marriage ceremony the applicant was of unsound mind and incapable of entering into the marriage contract. Butt J set aside that order on the application of Mrs Fry and upon medical evidence adduced by her denying the allegation of incapacity on the basis that such an order ought not be made where there is a bona fide and substantial dispute as to the insanity of the party.
At least at this initial stage of the application for leave to appeal and where Ms S is appearing by counsel I consider that the question of whether or not she is disabled from bringing proceedings in her own name should be regarded as remaining a contentious issue and that it is the purpose of this application, and of any appeal if leave is granted, to decide whether or not that is so. The decision now under challenge that she is a disabled person should not, therefore, be treated in itself as a basis for obliging her to appear in these proceedings through the appointment of a next friend. If, as the proceedings develop, the situation as to Mrs S's alleged disability becomes the subject of further evidence or her conduct at the proceedings leads the court to the conclusion that she is under a disability then, at an appropriate time, it may be necessary to revisit this question. Otherwise, these proceedings should continue in the ordinary way.
In this respect the situation can be compared with the position of a person who has been declared a vexatious litigant and then institutes an application for leave to appeal against that decision without seeking or obtaining leave to commence any appeal proceedings under s 6 of the Vexatious Proceedings Restriction Act 2002 (WA). Such a person has been permitted to institute such an appeal notwithstanding the declaration that he or she is a vexatious litigant because it was that very decision which was contended to be wrong - Shaw v McGinty [2006] WASCA 231 and Bride v Commonwealth Bank of Australia [No 2] [2007] WASCA 225.
The approach which the court should take in this instance is to treat this application for leave to appeal in the same way as the original application before SAT under the Act; that is, by treating the question of whether or not Ms S is a person under a disability as still subject to final determination and, for that reason, to allow her to bring the application in her own right. I will allow the proceedings to continue as presently constituted.

The appeal has continued on that basis.
Since then there has been no further evidence adduced which casts any adverse shadow against Ms S's mental capacity or her ability to represent herself in these proceedings. Counsel for the respondents have relied upon the materials in evidence before SAT to support the decisions of SAT that a guardian and an administrator for Ms S were rightly appointed. There has, by leave, been further evidence adduced for Ms S from a psychiatrist who has examined her and reviewed the papers since the decisions of SAT, but that evidence supports her capacity to conduct her affairs and financial responsibilities in person and does not provide any basis for the respondents' proposition that she is in need of the appointment of a guardian or administrator or that she should be classified as a represented person. There has been nothing in the conduct of these proceedings by or on behalf of Ms S which casts any different light on that position.
Nevertheless, on the footing that she was a represented person by virtue of the appointments of the guardian and administrator made by SAT, which are under challenge, the third respondent continued to submit that Ms S is not competent to conduct these proceedings without the appointment of a next friend.
The third respondent submitted that RSC O 70 r 2 is authorised by the powers conferred by s 16 and s 23 of the Supreme Court Act 1935 (WA), namely the power to make provision for representation and protection of the interests of infants and disabled persons: Jones v Moylan (1997) 18 WAR 492, 496; Cadwallender v The Public Trustee [2003] WASC 72 [49]; and Allregal Enterprises Pty Ltd v Carpaolo Nominees (No 2) [2009] WASCA 55 [16] and that O 70 needs to be read and applied having regard to the nature and purpose of the jurisdiction rather than as a code ‑ Cadwallender by his next friend Cadwallender v The Public Trustee [31]. On this basis it was urged that a represented person such as the appellant should be treated as a person under disability for the purposes of the rule. The third respondent's submissions continue with the proposition that a judge cannot dispense with the requirements of the rules unless the rules confer a power to do so: Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46, 518 and Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 2) [2009] WASCA 55.
Doyle v Commonwealth is a case dealing with the question of whether or not, despite provision in the rules of court to the contrary, a judge is justified in making an order for commitment for contempt of court upon a contemnor in the absence of personal or substituted service of the notice of motion for committal. The court decided unanimously that no such inherent power existed in view of the rule which required service of such a notice of motion upon the alleged contemnor. Allregal Enterprises is much closer to the present position in that Pullin JA held that a person, who had been subject to a representation order under the G & A Act, must be regarded as a person under a disability and as such unable to bring proceedings otherwise than by a next friend or to defend otherwise than by a guardian ad litem. In that case Mrs Farrell was applying for a stay of a judgment of a Master for a money sum due under a mortgage pending the hearing of an appeal against that judgment. There were reasons, described by Pullin JA, why there appeared to be a doubt over whether or not Mrs Farrell was in fact a person under a disability because of want of capacity and there was scope for that question to be determined by evidence or enquiry if necessary but for various reasons that was not possible in the Allregal case. Pullin JA took the existence of the guardianship order made some years before as being determinative of Ms Farrell's status as a person under a disability and refused to allow her to maintain the application or the appeal in her own name. With respect, I agree with the approach followed by Pullin JA in that case but the present case can be distinguished on the basis that the entire question of whether or not a representation order should ever have been made in respect of Ms S, thereby classifying her as a person under a disability, is the point of the present appeal. For reasons set out in my earlier decision, I do not consider that, where she maintains that order should never have been made, the existence of the order which is the subject of the appeal should be allowed to prevent her from exercising a statutory right to apply for leave to appeal and to appeal if leave is granted.
The third respondent went on to submit that in the present case RSC O 70 may not apply or may be inappropriate to the particular circumstances of this case: TK, PB and LS v Australian Red Cross Society (1989) 1 WAR 335 and that the court retains a discretion even without compliance with O 70 r 2 to allow the appellant to bring these proceedings in her own name: Cooper v Dummett [1930] 2 WN 248. TK, PB and LS v Australian Red Cross Society is a case dealing with an inherent jurisdiction of the court to dispense with the requirement that an action commenced by a claimant by writ should disclose the plaintiff's name. The three plaintiffs were haemophiliacs so that the disclosure of their names to the community in general would be likely to cause them substantial prejudice and ostracism which could exacerbate their medical conditions. Malcolm CJ held that in wholly exceptional circumstances the court could dispense with the requirements for the plaintiffs to disclose their names and that the rules, while having the force of law as rules of practice and procedure, cannot confer, take away, alter or diminish any existing jurisdiction.
Counsel for the appellant relied upon TK, PB and LS v Australian Red Cross Society for the proposition that the rules do not confer or remove any jurisdiction of the court and further submitted that RSC O 1 r 3A provides that the inherent power of the court to control the conduct of the proceedings is not affected by the rules of the court. That rule was introduced in 1996. There was no extensive argument on that submission and it was not addressed by counsel for either respondent, but the rule does recognise an inherent power such as referred to in TK, PB and LS v Australian Red Cross Society and it does acknowledge that that inherent power is not restricted by other rules, including O 70 r 2. It seems that Pullin JA in Allregal was not referred to RSC O 1 r 3A but nevertheless was able to resolve that case by identifying a power to appoint another person as next friend or guardian. For reasons set out in my earlier decision on this point, that possibility is not open in the present case. I consider that O 1 r 3A does recognise a power to proceed with the litigation as presently constituted.
There were further submissions on behalf of the appellant that a strict and literal interpretation of O 70 r (3) and r (4) would render entirely nugatory appeal rights under the G & A Act in a case such as the present and would prevent a person protesting that they had wrongly been declared to be in need of representation by obtaining access to the statutory right of appeal. This led on to a further submission that O 70 r 2, insofar as it applies to appeals under the G & A Act, such as the present, could be determined to be ultra vires the rule‑making power under the Supreme Court Act on the basis that it would, in effect, take away or render ineffective a statutory right of appeal.
A further submission from the appellant was that the RSC O 70 should be carefully construed so as to fall within the scope of the rule‑making power in a way which would not allow the rule to amend or to modify statutory rights, such as rights of appeal: Fletcher (as trustee of the Brian Fletcher Family Trust) v St George Bank Ltd [2010] WASC 75 [21]. Fletcher's case concerned a contested application to amend a statement of claim to introduce causes of action which, at the time of the application, would be statute barred if no proceedings had already been commenced alleging the same facts or substantially the same facts in respect of which the new cause of action relied. It concerned the principle in Weldon v Neal (1887) 19 QBD 394 and the provisions of RSC O 21 r 5 which provided that such an amendment may be allowed notwithstanding the expiry of any relevant period of limitation in certain circumstances. Consideration of those principles led Martin CJ to observe [21]:
The Rules of the Supreme Court must, of course, be construed so as to be consistent with the Limitation Act. The judges of the court do not have the power to promulgate rules of court which would amend or modify the operation of laws enacted by the Parliament. It follows that the Rules of the Supreme Court should be construed so as to fall within the scope of the rule making power conferred upon the judges, which does not extend to the amendment and modification of the substantive law to be applied by the court.
In a case such as this I consider that an indiscriminate interpretation of O 70 r 2 to prevent Ms S from bringing this appeal, except by a next friend, in circumstances where she strenuously maintains that she was wrongly found to be a person in need of representation orders, would substantially diminish or encroach upon the statutory rights of appeal which I have already identified. This is another way of reaching the same conclusion which I expressed in the interlocutory decision [2011] WASC 319 of 23 November 2011. I therefore confirm that the court can and should allow the present appeal to be pursued by Ms S in her own name and in person.

Parens patriae jurisdiction

Counsel for the third respondent made extensive submissions regarding the inherent jurisdiction of this court to exercise the parens patriae jurisdiction of the crown or the state. This, it was submitted, is expressly recognised by s 16(1)(d)(ii) and s 23 of the Supreme Court Act1935 ‑ Morris v Zanki (1997) 18 WAR 260, 285; Jones v Moylan (1997) 18 WAR 492, 496; Director‑General v T'Hart (2003) 27 WAR 185; [2003] WASCA 110 [11]; and Minister for Health v AS [2004] WASC 286 [16]. Counsel further submitted that in the absence of clear and unambiguous language providing for the abolition or suspension of the parens patriae jurisdiction it must be presumed to continue in force: Carseldine v Director of Department of Children's Service (1974) 133 CLR 345, 351 and Director‑General v T'Hart[37].In this respect, it has already been noted that s 3A of the G & A Act provides that nothing in that Act affects the inherent jurisdiction of this court. Accordingly, so the third respondent submitted, notwithstanding the provisions of the G & A Act this court remains vested with the parens patriae jurisdiction as part of its inherent jurisdiction.
The parens patriae jurisdiction extends to all those persons who are not able to care for themselves (Department of Health and Community Services (NT) v JWB and SMB (Marion's case) (1992) 175 CLR 218; [1992] HCA 15, 258 ‑ 259) and it extends to the interests of infants, persons disabled because of unsoundness of mind or other reasons, to unborn interests contingently affected by trusts, wills or other dispositions of property, to the devolution of property in case of intestacy, to the welfare and guardianship of interests and to the protection of charitable trusts and charities ‑ Cadwallender v The Public Trustee [2003] WASC 72 [27]. The submissions further proceeded to the effect that the scope of the parens patriae jurisdiction has not been and cannot be defined (Marion's case, (258); and that it is important to appreciate the broad nature of the jurisdiction and its capacity to respond to any necessitous circumstances involving persons unable, for reasons of disability, to care for themselves.
In my earlier decision [2011] WASC 319 I observed at [11] that I was not satisfied that this is a case in which the parens patriae jurisdiction can or should be invoked. This is because the appellant is seeking to exercise statutory rights of appeal expressly conferred under the G & A Act and the SAT Act allowing review, in one case, in relation to errors of fact and law and, in the other, only on questions of law, of the decisions of SAT made in Ms S's proceedings. It was not suggested, and on this occasion there is therefore no reason to consider the possibility, that there might exist some parallel jurisdiction of this court deriving from the parens patriae jurisdiction to determine how the proceedings before SAT relating to Ms S should have been resolved or, for that matter, to consider the questions arising in them afresh.
Rather, I consider that the correct approach is to treat the G & A Act as an example of the legislature exercising its power to provide for the interests, protection and welfare of disabled persons or persons in need of guardianship or administration orders in the manner best suited to cater for their requirements and to establish a tribunal, and rights of review, to deal with applications concerning the interests of such persons. In terms of broad analogy, the legislation can be compared with certain provisions in the Trustees Act 1962 (WA), the Young Offenders Act 1994 (WA) and other pieces of legislation in which a legislative regime and policy has been specifically devised to care for persons, or categories of persons, in need of special care and protection.
I accept the submission that the G & A Act has not excluded the jurisdiction in this court to make appropriate orders for persons under disability or in need of protection, such as, for example, controlling the proceeds of a judgment for damages recovered by an infant pending the attainment of his or her majority (see O 70 r 10 and r 11) but, as I have already said, I see no implication in the present case that there has been, or could be, any resort to that jurisdiction in the form in which the current proceedings have followed.
However, this does not mean that principles and approaches deriving from the parens patriae jurisdictions have no place in the determination of an appeal like this. The submissions of the third respondent include submissions that the parens patriae jurisdiction must be exercised in the best interests of the protected person: Re E (1987) 31 DLR (4th) 1; [1986] CLB 566, 28 and A v A Health Authority; J A Child, Re (Fam D) [2002] 3 WLR 24; [2002] EWHC 18 (Fam) [43] and further that the parens patriae jurisdiction is one that is always exercised with great caution: VJC v NSC [2005] QSC 68 [13]. I consider that it is correct to say that any court or tribunal exercising original, review or appellate jurisdiction under the G & A Act should approach the performance of its jurisdiction with those principles in mind. Indeed, as already noted, the G & A Act s 4 enumerates these and associated principles which must be observed when dealing with proceedings commenced under this Act.
So the presumptions of independence referred to in s 4(3) are the starting point in any proceedings; the principle that the least intrusive form of order should be made is to be found in s 4(4), s 4(5) and s 4(6). The need to act in the best interests of any represented person or a person in respect of whom an application is made and to seek to ascertain his or her views and wishes are likewise to be found in s 4(2) and s 4(7). Similar approaches, adapted as the circumstances may require, have long been the foundation of the exercise of the parens patriae jurisdiction and, to that extent, there are consistent and analogous approaches to be followed by any court or tribunal exercising jurisdiction under the G & A Act or, in the case of this court, exercising the parens patriae jurisdiction. An example of this is the rule that a person under disability should not be taken to have made any implied admission in a pleading simply because of the absence of an express traverse of an allegation made by an opponent ‑ RSC O 70 r 8.
These principles, long established and well understood, need no further elaboration. However, they need to be applied and considered in the light of certain submissions by the second respondent that, at various phases of the proceedings before SAT, Ms S did not adduce evidence of her own; cross‑examine certain witnesses; or seek to adduce expert medical evidence and that later, when she was legally represented, her counsel, who had only been very recently instructed and who had not had access to documents in the possession of SAT and of which discovery and inspection had been demanded, elected, on some occasions, to proceed with the hearing rather than to accept an adjournment offered by the tribunal which, at least so it would appear, he feared would cause further delay and hardship to Ms S.

Original and review jurisdiction of SAT

Any matter in which SAT has jurisdiction comes within either its original jurisdiction or its review jurisdiction (SAT Act s 14). The original and review jurisdictions are respectively described by s 15 to s 18 of the SAT Act. A review hearing is to be a hearing de novo not confined to matters that were before the decision‑maker that may involve the consideration of new material, whether or not it existed at the time the decision being reviewed was made and the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review ‑ s 27 of the SAT Act. Extensive powers of SAT on review are set out in s 29(3) which include the power to affirm or vary the decision under review, to set aside and to substitute the review tribunal's own decision, or to send it back for reconsideration and, in any case, to make an order which the review tribunal considers appropriate. The member or members of the SAT who are to sit when it is exercising jurisdiction is or are to be as specified by the President (s 11(1)) but a member is not allowed to sit as a member of the SAT or to perform any function as a SAT member in relation to a matter in the tribunal's review jurisdiction if that person was:
(a)the decision‑maker in relation to that matter; or
(b)a member of the body that was the decision‑maker in relation to that matter.
There is also a part of the G & A Act (pt 7 s 84 ‑ s 90) dealing with periodical reviews of guardianship or administration orders at regular intervals or in the event of certain specified eventualities. The powers of the SAT on such pt 7 reviews are set out under s 90 and include the power to amend the order earlier made, to revoke it or to substitute another order. However, somewhat confusingly, 'reviews' under pt 7 of the G & A Act are conducted in SAT's original jurisdiction (s 90(2)) and, consequently, the prohibition contained in s 12(7) of the SAT Act forbidding a SAT member to act in the exercise of the tribunal's review jurisdiction if that member was the decision‑maker in relation to the matter or a member of the body that was the decision‑maker in relation to that matter does not apply. This is significant in the present instance because submissions have been received that Dr Stepniak was ineligible to sit in the review proceedings ostensibly conducted under s 84 because the true character of that 'review' in substance included a demand for a review under s 17A of the G & A Act. There are other grounds upon which the applicant has submitted that Dr Stepniak should not have participated in that hearing which rely on submissions of bias and reasonable apprehension of bias, but they raise distinct issues which will be dealt with separately.
Furthermore, the SAT may not, in its original jurisdiction, hear a question which amounts to review. In Hartwig v Builders Registration Board of Western Australia [2009] WASCA 138 [26] Wheeler JA said, with whom Pullin and Buss JJA agreed:
The SAT Act divides the jurisdiction of SAT into ordinary and review jurisdiction. The BRA (the Builders Registration Act) recognises and reinforces that distinction in s 14 and s 41. It appears to me that the better view, therefore, is that it is not open to SAT, in the course of a disciplinary proceeding in its original jurisdiction, to determine the question which might have been, but was not, the subject of review proceedings in its review jurisdiction. It may also be arguable that, in its disciplinary jurisdiction, it is the failure to comply with an order protective of consumers, regardless of the 'validity' of the order, which is the 'mischief' of which s 13(1)(db) of the BRA is directed. In that case, a collateral challenge to the validity of the order would be irrelevant.

This means that at the s 84 'review' hearing of SAT (in its original jurisdiction) the three‑member SAT had no power to exercise any form of review jurisdiction over the decisions of 5 February 2010 which Ms S was seeking.
However, it does not follow from this that the SAT, in the exercise of its full review jurisdiction, may not exercise a power available under its original jurisdiction, at least in relation to proceedings under the G & A Act. Indeed, the powers of the SAT on review enable it to vary or confirm the decision under review or to make such decision as should have been made on that occasion (see s 29) which confirms that on review the power to make a decision which could or should have been made at first instance exists.
Under the G & A Act s 17A an aggrieved person may request the President to arrange for a full tribunal to review the determination. At any such instance, the powers then exercised by the full tribunal will be an exercise of the review jurisdiction.

First decision - single member SAT 5 February 2010

The prelude to the application to SAT was that Ms S had been admitted to the Bentley Hospital [in] October 2009 and was then an inpatient. By application of 22 December 2009 Ms P, the social worker at Bentley Hospital, sought the appointment of a guardian and administrator for Ms S. The application form alleged that she had 'impaired executive functioning' but not intellectual disability, psychiatric disability or dementia. It recorded that the patient had been assessed by a clinical psychologist, Ms C, and by a psycho‑geriatrician, Dr KW. It asserted that her decision‑making capacity was affected in that she was unable to make decisions in relation to her home repairs and living arrangements. The application form, completed in handwriting by Ms P, addressed the following two questions:
•Why does the person need an administrator?
Ms S's house is in a dilapidated state with no electricity, fallen ceilings, broken doors and windows. There is a huge amount of clutter within the house and in the grounds. Ms S has not been able to organise rewiring of the house and fixing the many problems identified.
•What attempts have been made to solve the issues less formally?
Discussed with Ms S options available. Offered to contact shire on her behalf. Attempted to ascertain if she could afford to fix house financially. Asked permission to discuss issues with her friends/neighbour. Ms S refused to discuss any of the above, stating that she would sort it out herself.
Ms P asserted that the Public Trustee should be appointed to manage Ms S's financial affairs. The application form disclosed that it was believed that she received a full single‑rate aged pension of about $570 per fortnight. There were no details of her other financial circumstances or expenses. The application was made on an urgent basis, with the explanation that:
Ms S had been in hospital since [suppressed] October 2009 and cannot be discharged as her home is unfit for habitation. No progress can be made as she refuses to discuss any option or take any action. Her property is at risk as it cannot be secured and she states that she has been burglared last week.
The application was accompanied by a document entitled 'Doctor's Guide' which appears to be a standard three‑page SAT form containing questions to be answered, including boxes to be ticked. It was signed by Dr T on [suppressed] December 2009. Dr T was then a junior medical practitioner on the staff of Bentley Hospital. In this form Dr T stated that she had known Ms S since [suppressed] October 2009 (that is, for the period of a little more than two months that the patient had been in Bentley Hospital) and had last seen her on [suppressed] December 2009. She came to know her in her capacity as a hospital medical officer. Under a box headed 'Medical Assessment' and in answer to the question whether the person has any impairment of his/her cognitive ability or mental function the 'Yes' box was ticked with the remark 'mild cognitive impairment impaired executive functioning'. This was first noticed on 8 October 2009 and was said to be static. Dr T then wrote:
Ms S has limited insight into her living and financial arrangements. Her decision making ability is impaired and her judgments are poor and not well thought out. This is unlikely to improve.
In a further box in the questionnaire dealing with capacity, Dr T ticked a box saying that Ms S was capable of making reasonable decisions now in relation to her personal health care but she simultaneously ticked another box in relation to the same question that she was not sure. In relation to a question whether the person could make reasonable decisions now in relation to a living situation, Dr T ticked the box 'No, incapable' and finally, in relation to the question whether the person could make reasonable decisions now in relation to financial affairs, Dr T ticked the box 'No, incapable'. In that same section of the form the reporter was asked whether she was 'aware of any other reports which may assist the tribunal (particularly ACAT assessments, mental status tests or psychological reports), and please specify and/or attach copies'. The answer given was 'Report by Dr KW, psycho‑geriatrician'.
At this point, it is necessary to note that counsel for Ms S on the present application has pointed out that no written report from Dr KW about Ms S's condition was in existence at the time of Dr T's report and no record of any such report has ever been produced since. A later report from Dr KW considered at the hearing of three‑member SAT on 24 November 2010 was first obtained on 21 September 2010 and, for present purposes, is significant for two reasons. It confirms that there was no earlier report from Dr KW in existence at the time SAT was first considering Ms P's application and, second, it is entirely equivocal about Ms S's lack of mental or management capacity and suggests that if there were to be any concerns about her abilities in those respects a detailed medical opinion should be obtained.
In the same pro forma report to SAT of 22 December 2009, in a box dealing with questions of capacity to make an enduring power of attorney, Dr T ticked a box that she considered Ms S was then incapable of executing a valid enduring power of attorney (EPA) and that to her knowledge she had not executed an EPA. Dr T's further responses to this form included ticking boxes to the effect that it would not be detrimental for Ms S to attend the hearing and that there was no reason to consider that attending would not be in her best interests. Dr T also ticked a box (one of three) asserting that because of the person's disability at the hearing the person is likely to make a limited contribution. Finally, this form included boxes which were ticked to the effect that Ms S speaks English and is independently mobile.
Another pro forma document submitted to SAT for this application was the 'Primary Carer and Social Worker Guide', running to two pages, and apparently completed by the social worker, Ms P, on 21 December 2009. Again the format of the document consists of a series of boxes for brief, pithy answers by the author. This form addressed five separate headings as follows:
1.Background
•Back pain, falls, deteriorating mobility
•Came from home
•Dr SM, Geriatrician, Bentley Hospital
•Dr KW, Psycho-Geriatrics, Bentley Hospital
•Dr T, RMO (resident medical officer) Bentley Hospital
2.Family and Other Significant People
•Never married
•No know details of siblings. Estranged. Brought up by foster parents.
•Friends, DA (phone number). EL (phone number), ST (phone number)
•Neighbour: TP (phone number)
•All friends and neighbour visit regularly, are supportive of her and concerned about her living arrangements. However they are not prepared to confront her and wish to be able to remain friends, and supportive.
3.Mental state
•Not confused.
•Able to follow instructions.
•Does not get lost.
•Able to converse sensibly except where her house is concerned
•All visitors very concerned about her living arrangements.
4.Assessment
•Seems to be able to manage day to day budgeting decisions.
•Unable to make reasoned decisions regarding house maintenance, renovation/demolition/sale.
•Personal, health and financial safety at risk because of inability to make reasoned decisions.
5.Recommendation
•Ms S requires a Guardian to assist her in making decision regarding where she will reside.
•She also needs an Administrator to manage her financial affairs.
•In view of her inability to make reasoned decisions, Guardian and Administrator would need to have plenary powers.
Another document in the record of proceedings before SAT is a copy of an enduring power of attorney made by Ms S on 21 January 2010 appointing her friend, Ms L, as her sole attorney. This was made pursuant to s 104 of the G & A Act and had the effect of granting an enduring power of attorney under that Act. It was signed as a deed by Ms S and witnessed by Dr M, a physician at Bentley Hospital, and also by Ms P, the social worker at Bentley Hospital. It is endorsed with an acceptance of the appointment as enduring attorney by Mrs L dated 21 January 2010. The apparent inconsistency between the witnessing of this EPA by Dr M and Ms P on 21 January 2010 and the observation in the Doctor's Guide signed by Dr T on 22 December 2009 that she was incapable of making a valid EPA is striking.
Then follows a facsimile transmission from Ms P to a person by the name of R at SAT dated 1 February 2010. That annexes a manuscript letter by Ms S dated 21 January 2010 addressed 'to whom it may concern', recording that Ms S authorises Ms L to manage her affairs, including the selling of her property at [suppressed] Bentley, and recording that she is prepared to accept hostel care, preferably at [suppressed] in the Bentley area. Ms S's signature appears to be witnessed by DPA (another old friend) and it carries the endorsement by Mrs L that she is prepared to honour all of the above for her friend, Ms S.
Also enclosed was a letter from Mrs L addressed to the SAT, received on 1 February 2010, in which Mrs L describes herself as a long‑time friend of Ms S, having known her for over 50 years and being a close part of her family. In this Mrs L describes Ms S as having a sad and difficult life and that recently everything had become too difficult for her to manage, resulting in her initial reaction to ignore official letters, hoping that it would all go away. The letter concludes by saying Ms S had confided in Mrs L and asked Mrs L to help her, and that she, Mrs L, was prepared to act as [her] guardian and administrator 'to find a nice hostel to live in and help her sell her property'. It recorded that she had already received an EPA from Mrs L.
Then, by another facsimile from the Bentley Hospital to R at SAT on 4 February 2010, Ms P enclosed a further letter from Mrs L dated 3 February 2010 withdrawing her offer to act as guardian. In a careful and thoughtful letter, Mrs L said that it would be essential for her to have [Ms S's] complete trust and, as this was not forthcoming, it would be too stressful and difficult a task for her to handle at her time of life and that she therefore withdrew her application for guardianship.
The hearing of the P application for the appointment of a guardian and administrator took place before Senior Sessional Member Dr D Stepniak at SAT on 5 February 2010. A 37‑page transcript of the hearing is part of the evidence before this court. Ms P appeared in person as applicant. Also present were Ms M, an old friend of Ms S, together with Mrs L and Mr P, her neighbour of 20 years and a friend. Sitting at the back of the meeting room were Ms A and Ms R from Advercare (present as an observer). Also appearing was Ms B from the Office of the Public Advocate.
In the course of an introductory address by Dr Stepniak it was recorded that the SAT had already received evidence or documents which he had read comprising:
The application - A report from Dr T - A further social worker report (an apparent reference to the 'Primary Carer and Social Worker Guide' from Ms P)
In this introduction Dr Stepniak referred to Dr T as citing a report from Dr KW, a psycho‑geriatrician, in support of her conclusions ‑ this is a reference to what is now conceded to be a non‑existent report by Dr KW.
There was no legal representation for Ms S and there does not appear to have been any enquiry made as to whether or not she needed or desired to have legal representation, althought the power exists for the SAT to direct the executive officer to apply on behalf of the person concerned for legal aid under the Legal Aid Commission Act 1976 ‑ cl 13(4) of sch 1 to the G & A Act.
There then followed a dialogue between Dr Stepniak and Ms S in which the appellant steadfastly maintained that she was not in need of a guardian or administrator and could look after herself. This dialogue expanded into a discussion also involving Mrs L and Mr P. This then flowed into a discussion with Ms P and Ms M and also Ms B with further contributions from Mrs L and Ms S. The whole hearing proceeded in this form of dialogue of unstructured interventions. There appears to have been very little, if any, attention given to whether all or any part of these contributions constituted evidence before SAT or whether the dialogue consisted principally of submissions, comment or suggestions as to how Ms S's needs, to the extent that they might be regarded as existing, could best be satisfied. Significantly, at no point was any individual person asked or required to give evidence in the sense of formally being invited to give an account of material facts bearing on the issues to be decided in the application. Dr T, the author of the 'Doctor's Guide', was not called or present. Dr KW, the alleged author of the non‑existent report, was not called or present nor was any report from him produced.
Ms P, the applicant and the author of the 'Primary Carer and Social Worker Guide' was not formally asked to give evidence, although she did participate in the unstructured dialogue that I have mentioned. Ms S was not asked, invited or told that she could give evidence and did not do so except to the extent that she participated in the dialogue. She was not told of her right, and she had no opportunity, to cross‑examine any of the persons whose reports or contributions were taken into account by the SAT member ‑ not only because none of them was called as a witness but because the hearing was conducted in such a way that gave no recognition to the right to give evidence personally or to cross‑examine.
Under s 32(6)(c) SAT Act one of the obligations upon the SAT is to take measures that are reasonably practicable to ensure that the parties have the opportunity in the proceeding:
(i)to call and give evidence
(ii)to examine, cross‑examine or re‑examine witnesses and
(iii)to be heard or otherwise have their submissions considered.
Section 32 also provides that SAT is bound by the rules of natural justice except to the extent that the SAT Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules. Part of the rules of natural justice requires the specification and disclosure of the evidence or material to be relied upon for the relief which an interested party is opposing and to have an opportunity to make submissions and adduce evidence to advance the case of that party or to oppose the case of the opponent.
None of the 'evidence' before the SAT on 5 February 2010 was taken or verified by oath or affirmation, although the SAT has the powers to call any person to give evidence and to examine any witness on oath or affirmation or by statutory declaration ‑ s 67(1) of the SAT Act. The SAT's powers to call and examine witnesses and to cross‑examine under s 67 were not mentioned or exercised. Not only was there no witness called, nor oath or affirmation demanded, nor verification of the material relied upon by statutory declaration requested, but there was simply no reference to, or requirement of, the source relied upon to verify personally, under sanction of law, the truth or completeness of the information being provided and accepted by SAT. Section 98 of the SAT Act imposing potential penalties for providing false information was not referred to and, having regard to the fact that none of the persons providing information was a witness or had committed himself or herself to a statutory declaration, oath or affirmation, it must be very doubtful whether it applied as a sanction in those circumstances.
Under s 64(1)(a) of the G & A Act, a critical issue in determining whether or not to appoint an administrator in respect of Ms S's affairs with consequent powers over her property is for:
… the SAT [to] be satisfied that a person in respect of whom an application for an administration order is made under s 40:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
…
By s 3 of the G & A Act 'mental disability' is defined to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia. The application form lodged by Ms P contained a box dealing with disability in which Ms P did not allege that Ms S had any intellectual disability, any psychiatric disability, any acquired brain injury or any dementia. The only alleged disability was impaired executive functioning. There was no evidence to establish that this was a mental disability within the meaning of that term of s 64(1) of the G & A Act, an essential requirement for the appointment of an administrator.
The SAT had the power to call on expert or professional assistance from a person with relevant knowledge or experience to assist it in relation to a proceeding before the tribunal whether by providing advice or professional services or by giving evidence ‑ s 64(1) of the SAT Act. In these circumstances, there was plainly a need to call for expert evidence from a suitably qualified medical practitioner upon the question of whether or not Ms S had any mental disability and, for that matter, whether she did have any impaired cognitive functioning to a degree requiring intervention in her protection. That was not done and no thought appears to have been given to the possibility of doing it.
Informal and unstructured as the proceedings before SAT on 5 February 2010 were, and clearly though no 'evidence' in any formal sense was taken, identified or rendered susceptible to cross-examination or challenge, the dialogue to which I have referred makes it clear that towards the end of the process SAT had identified as the principal matter of concern the need to make some acceptable arrangements about the future of Ms S's house at [suppressed] Bentley, which by then had been declared unfit for habitation by the local council. That factor, almost of itself, was regarded and treated as justifying intervention, at which point attention in the dialogue shifted towards the nature of the intervention appropriate. At page 27 of the transcript of 5 February 2010 Dr Stepniak said:
Just in terms of what the administrator would be authorised to do, I don't want to go down the track of having someone take over the finances. I don't think that's justified. I think what we need is someone to come on board to work out what funding is available, what's in the estate and then to make decisions about the house and the accommodation. That's the extent of their power and they would need to justify those decisions in terms of the best interests of Ms S.

Objections to the reception of new or further evidence

Apart from objections dealing with the content of parts of the evidence proposed to be adduced for the first time on this appeal, which were dealt with and disposed of at the hearing, there were more fundamental objections to the receipt of any of this evidence by the second respondent. These raised the question of whether 'new' or 'fresh' evidence could be admitted at all on such an appeal and, even if it could, whether any of the evidence proposed to be adduced should be admitted in the circumstances.
I have decided to admit all the evidence because of its relevance to the matters to be determined and because of the paucity of evidence on these points from qualified medical personnel at the original hearings when there was clearly a capacity and the need for that evidence to be obtained and utilised by the tribunal under s 64 of the SAT Act.
There is also a second dimension which favours the admission of the evidence from both Dr C and Dr S. This is the question of whether or not Ms S's contested status as a 'person under a disability' within the meaning of O 70 RSC precludes her from conducting this appeal in her own right without a next friend. I have already canvassed the reasons which led me to conclude that she should be permitted to conduct the appeal without a next friend but, in doing so, I have always stressed that that determination remained subject to review, especially in the light of any evidence which might emerge as to her present capacity to conduct proceedings on her own behalf. I left open the possibility that evidence bearing on that question could be adduced by any party to the present appeal. In the result, only the applicant, Ms S, has sought to adduce such evidence. The opinions of Dr PC and Dr JS each suggests that she does have that capacity and is able to make conscious and responsible decisions for herself with the benefit of legal advice. As I have said, that evidence has not been challenged by either respondent in the present hearing. This means that the only obstacle standing in the way of Ms S conducting these proceedings on her own behalf is the automatic classification of her as a person under a disability by virtue of the orders made by SAT which are under challenge. I have set out why I consider that they should not be determinative in the present case. On the evidence as it now stands, I consider that Ms S does have the capacity to bring these proceedings and should be permitted to do so notwithstanding the presumptive status accorded to her by the contested findings which were previously made by SAT.
The question of what use can be made of this 'new' or 'fresh' evidence in relation to determining the appeal from SAT requires a different approach. There are no express limitations on the reception of evidence on an appeal conducted under s 105 of the SAT Act. However, with respect to decisions from a three‑member tribunal of SAT pursuant to s 19 of the G & A Act, it is provided by s 29 of that Act that:
(1)The court shall determine the appeal ‑
(a)on the material that was before the State Administrative Tribunal and
(b)on such further evidence either oral or by affidavit as the court thinks fit to receive.
(2)For the purposes of subsection (1) the court may ascertain what material was before the State Administrative Tribunal on such evidence, statement or record of what occurred before the tribunal as the court considers sufficient.
There is therefore, accordingly, an express power to take further evidence on an appeal from the SAT as constituted by the three‑member tribunal; that is, in this case, from the decisions made in November 2010.
Counsel for the second respondent submitted that the nature of an appeal depends upon the terms of the statute conferring the right of appeal: Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36, 273 ‑ 4; and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 [11]. In this case, the appeal from the three‑member tribunal is by way of rehearing, leading to the submission that such an appeal is usually conducted solely on the evidence given at first instance in contrast to an appeal by way of a hearing de novo when the matter is heard afresh and on evidence presented at the hearing of the appeal: Allied Operations [13]. Counsel for the second respondent submits that a relevant factor in the present case is that the appeal under s 19 is both a mechanism for curing error and/or that there is some other reason to justify a review (s 20 of the G & A Act). That led in turn to the submission that there could be no error of fact or law by the SAT in failing to take into account evidence which was not in existence and not before it. I must say, with respect to that submission, that it overlooks the submissions advanced for the appellant that the situation before the SAT in its protective jurisdiction called for the tribunal to exercise its powers under s 64 of the SAT Act to obtain suitable expert evidence as to Ms S's present capacities, an error which can only be remedied by obtaining and considering evidence of the kind that might have been obtained had that power been exercised by the tribunal.
Having regard to the statutory obligation under s 4 of the G & A Act to make any decision in the best interests of the person with a disability, I consider that it is appropriate in the interests of justice to take new or fresh evidence into account on an appeal such as this where it is plainly relevant to the issues under consideration and where evidence of that kind should have been obtained or adduced as part of the review process undertaken by SAT.
It would be surprising if it were otherwise because, by hypothesis, the exercise of a review by the SAT whether under s 84 or s 17A proceeds on the basis that a finding has already been made that a person is in need of a guardian and/or administrator and to that extent is under the protective jurisdiction. How can it be said that if the person in need of such protection through no fault of her own fails to obtain evidence on a crucial question which is potentially determinative of the application, she should be prohibited afterwards of bringing it forward? Such a contention must postulate that the person had the ability, the means and the capacity to recognise, obtain and produce such evidence at the hearing in question, an assumption which is directly opposed to the status as found of the person concerned at that time. The paradoxical effect of this approach must be that only if a person were truly competent and not in need of a guardian or an administrator could the failure to adduce evidence of this kind be held against her yet such a status of competence would mean that there should never have been either form of protective order.
Very responsibly, counsel for the second respondent concluded his submissions on this point by contending that it was undesirable to attempt to establish any hard and fast rules in relation to the admission of new or fresh evidence on such appeals and that the admissibility of such material was, in most cases, likely to depend on the particular facts and circumstances. I consider, with respect, that that proposition should be accepted but I am satisfied that in the interests of justice in the present case the additional evidence is relevant and should be received and considered as it has been.

Grounds of appeal relating to three‑member SAT hearing

The proposed grounds of appeal advanced by the appellant in relation to the appeal from the three‑member tribunal dated November 2010 are numbers 1 to 12 in the amended grounds of appeal which have been set out earlier (see [14]). Some of these are repetitive.
Several of the grounds of appeal advance contentions that the orders made by the SAT, for the appointment of a guardian and administrator, were either not necessary in the circumstances or the needs of the appellant could have been met by less restrictive orders (grounds 1, 4, 5 and 6). As I have concluded that the evidence did not support any findings which would justify the appointment of an administrator or a guardian, it is not necessary to consider whether orders for the appointment of an administrator or guardian less restrictive in terms than those made should be substituted. Nor, in the course of argument, was it suggested how any such order might be modified in terms. The success of the appellant on the fundamental question of whether or not there was a basis for the appointment of either a guardian or an administrator means that it is unnecessary to consider these grounds further. The substantial success of the appellant follows from grounds 2, 3 and 10 of the proposed grounds.
I am satisfied that the appellant has established that the evidence was too equivocal and inadequate to displace the statutory presumption of capacity in s 4(3) of the G & A Act (ground 2); and that the proper consideration of the interests of the appellant were overlooked (ground 3). This is clearly a case in which the tribunal erred in failing to exercise its power to obtain independent expert evidence or other medical evidence to assess the appellant's capacity and whether or not she suffered from any mental disability (ground 10). Similarly, the tribunal failed to observe the requirements of procedural fairness in proceeding with the review in which one of the three members, Dr D Stepniak, was the subject of objection for actual bias, which in effect included reasonably ostensible bias because of his involvement in making the decisions of 5 February and 17 March 2010. The tribunal failed to examine and consider the application that Dr Stepniak should disqualify himself and proceeded to determine the application when he was a member in circumstances where a review on the merits of his decisions on 5 February 2010 was a central aspect of the determination required. Furthermore, I am satisfied that in substance the review being demanded by the appellant called for the exercise of the review jurisdiction of the SAT under s 17A of the Act and for such an exercise the original decision‑maker was not an eligible member of the panel. It should have been reconstituted (ground 11).
The appellant also contends (grounds 7, 8 and 9) that the SAT failed to carry out a proper review of the guardianship and administration orders and failed properly to review the actions of the appointed guardian and administrator in order to determine whether their appointment should have been continued or alternative appointments substituted and that the tribunal failed to have due regard to the well‑founded grievance of the appellant arising from the actions of the second respondent alleged to have caused grave financial and personal loss to the appellant (the destruction and sale of the appellant's home and the use of the proceeds of sale and other moneys to purchase a unit in the Uniting Homes property at [suppressed]). Again, these contentions did not feature prominently in the oral submissions of the appellant and were, in effect, overtaken by the more fundamental objections to errors of fact in making guardianship and administration orders at all and in failing to rescind and set aside the original orders made on 5 February and amended on 17 March 2010. Little attention was given by SAT to the review of the actions of the respondents in the course of their roles as guardian and administrator respectively but, again, these grounds have been overtaken by the appellant's success on the fundamental questions of whether or not orders should ever have been made and whether they should have been set aside by the three‑member SAT tribunal.
The final ground (number 12) is to the effect that the review process was flawed by non‑availability to the appellant's counsel of documents important to the presentation of the appellant's case. It is clear that counsel for Ms S was handicapped by difficulties and delays in obtaining access to a number of the documents, some of which were only produced after the three‑member SAT hearing had commenced. That is obviously most unsatisfactory and so much was conceded by the presiding member of the SAT in her final reasons for decision. One example of this was the non‑availability until the second hearing of the report from Dr KW of 21 September 2010 which, in fact, was not obtained by SAT until after the adjournment of the first portion of the three‑party SAT tribunal on 7 September 2010. However, it was eventually obtained and supplied to counsel for Ms S in time for the continuation of that hearing on 24 November 2010. What that sequence of events did show, however, was that the assumption that there had been a report from Dr KW available to Dr T when the latter filled out the questionnaire in the Doctor's Guide of 27 December 2009 was unjustified and that there was no scope for any possible inference that the (non‑existent) report of Dr KW confirmed or supported any lack of capacity or the existence of any mental disability by Ms S. Had a report been sought from Dr KW earlier any such misconception would, presumably, have been dispelled. Had Dr T been called to give evidence and been cross-examined, the misunderstanding may have been exposed and dispelled. Had a detailed medical assessment of Ms S been undertaken by a suitably qualified medical practitioner for the purposes of addressing the questions before the SAT, as was done eventually, but only on the applicant's initiative by Dr Spear, a report would have emerged which allowed the questions of capacity to be addressed and evaluated in a reliable way.
What did occur reveals many serious shortcomings in the procedure adopted by SAT both in preparation for and in the conduct of the several hearings. For reasons which have already been canvassed, the combined effect of this was to lead to the making of decisions which must be set aside. Whether in the circumstances the non‑availability of documents then in existence to counsel for the appellant resulted in the process being flawed is a question which cannot and need not be answered.
The decisions of the SAT must be set aside for several independent reasons. The wrong composition of the board in relation to a claimed review on the merits of the original decision; the presence of the original decision‑maker as a member of the three‑member panel which was called upon to review, among other things, the propriety of his earlier decisions; the failure to exercise powers necessary to obtain evidence from a suitably qualified medical expert; the failure to observe a procedure which allowed witnesses to be called and made available for cross‑examination; the failure to adopt any process by which the 'evidence' of those who had provided information could be formally verified or assured by way of oath, affirmation or affidavit all provide reasons sufficient to justify the review of the determination (G & A Act s 21(b)) and also reveal errors of law and actions both without and in excess of the jurisdiction. However, I would not uphold ground 12 of the grounds of appeal and, in any event, it is not necessary to do so.

Ultimate resolution and final relief

The opinions of Dr PC and Dr JS fill the gaps in the evidence missing before the SAT, both at the February hearing and in the November 2010 determination, in the sense that it is evidence from suitably qualified specialists who have conducted a detailed medical examination of Ms S in the latter case expressly for the purposes required and have provided a comprehensive report rather than completing some pro forma questionnaire which could never be more than a guide. That none of this evidence from these specialists has been challenged on its merits by either respondent is also significant. The evidence led at the three‑member tribunal hearing was insufficient to enable a tribunal to conclude that either a guardianship or an administration order should be made. As I have said, it left in some inconclusive state the question of whether or not on a rehearing with further evidence some form of limited guardianship order might be made but that possibility does not survive the evidence now adduced from Dr S.
There is, therefore, no point in remitting the application for further consideration by SAT with or without a direction. Furthermore, there is no proposal by either respondent or from any other quarter that some other person should be appointed to take over the role of applicant for relief to the SAT which has now been effectively relinquished by Ms P. Of course, there is nothing to prevent some entirely fresh application being made by a responsible person with an interest to have the whole question of whether or not Ms S is in need of a guardian or administrator in any form, but no such application has been foreshadowed. If one were to be made, it would be an entirely fresh application which would need to be considered in the light of the evidence assembled and relevant to that purpose.
It is quite evident from the explanations given by Ms S during the course of the various hearings before the SAT and in the materials which were filed on her behalf there and on this appeal that she desires, most of all, to regain her personal independence and responsibility and to be autonomous in the handling of her financial, health and social affairs. She is clearly aggrieved about the decisions of the Public Advocate and the Public Trustee to sell her home, to allow her personal possessions to be lost or dissipated and to use most of her money to purchase an accommodation bond in the residence in which she is presently located, the rent for which consumes most of the income derived from her pension.

The potential consequences of the orders being set aside ‑ liability for damages in tort or restitution

Any determination of what rights Ms S will have upon the orders of SAT being set aside raises difficult questions which were not addressed in the appeal and which the parties obviously anticipated could and should be dealt with separately later. There would obviously be a right to restitution with interest or other compensation for property which has been lost by Ms S or its value. Upon the reversal of a judgment requiring the payment of money or the transfer or loss of property by a person the individual vindicated is entitled to be restored to everything which she may have lost by the erroneous judgment and proceedings: Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, 225 and MacIntosh v Lobel (1993) 30 NSWLR 441, 459 ‑ 460; R v Elliott [1955] VLR 126; and Commonwealth v McCormack (1984) 155 CLR 273; [1984] HCA 57. However, acts done according to the terms or powers contained in a judicial order afterwards reversed are protected: Commissioner for Railways NSW v Cavanough (225) ‑ see generally: D M Gordon, 'Effect And Reversal Of Judgment On Acts Done Between Pronouncement And Reversal' (1958) 74 LQR 517 and (1959) 75 LQR 85, and Mason, Carter & Tolhurst, 'Restitution Law In Australia' (2nd ed, 2005) [701] ‑ [7112] and Papamatheos: 'What are The Judicial Bases Of Reversal Of Judgment Restitution?' (2005) 25 Australian Law Rev 268. Whether this protection extends to a negligent or culpable failure in the manner of exercising the powers conferred by the judicial order later set aside may be another matter.
It is possible that questions of that nature may arise in the future and it would seem to be the case that Ms S is now urgently in need of legal advice as to the courses open to her and whether or not prolonged continuation of her residence in her present accommodation might amount to a ratification of the conduct of the Public Trustee in using her money for that purpose which may eliminate or reduce any other entitlements to compensation or restitution which she may have. I express no opinion about any of these matters except to point out the need, in Ms S's interests, to address them and to obtain considered and responsible advice as to her present position.

In the circumstances, I consider that the appeal should be allowed, and that all the decisions of the SAT of 5 February 2010, 17 March 2010 and 24 November 2010 should be set aside and the initiating application to the SAT be dismissed. I will, however, hear counsel as to the details of any further other or additional orders considered necessary to give effect to these conclusions.