W - [2025] WASAT 75 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   W [2025] WASAT 75
MEMBER:   DR E MARILLIER, SENIOR MEMBER
HEARD:   1 JULY 2025
DELIVERED          :   22 JULY 2025
FILE NO/S:   GAA 2113 of 2025

W
Represented Person
THE PUBLIC ADVOCATE
Applicant

Catchwords:

Administration Order - Incapacity to make reasonable judgments in respect of matters related to estate - Incapacity versus unwillingness - Consideration of causation in assessment of actions - Is observed behaviour by reason of a mental disability - Presumption of capacity not displaced by current medical evidence

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(7), s 40, s 41(3), s 64(1), s 115, s 115(1), s 115(2), s 115(3)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Represented Person	:
Applicant	:

Solicitors:

Represented Person	:
Applicant	:

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65
FS [2007] WASAT 202
FY [2019] WASAT 118
GC and PC (2014) 85 SR (WA) 23
LP [2020] WASAT 25
Rappard v Williams [2013] NSWSC 1279
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
W v S [2025] WASCA 21

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

W is a highly educated allied health professional and father of four. One of his children tragically died of cancer in 1996, and this loss continues to impact W profoundly as is evident from his submissions to the Tribunal. W is now totally and permanently disabled from continuing in his profession due to psychiatric conditions which arise in part from this loss.
This application results from the referral to the Public Advocate by the Western Australian Court of Appeal (Court of Appeal) of the question of whether an application should be made to the State Administrative Tribunal for the appointment of a guardian or administrator to act as [W]'s next friend in matter CACV 72 of 2024 (an appeal against the orders of the Family Court in PTW 7517 of 2019).
The chronology of these matters is set out in W v S [2025] WASCA 21 [2] ‑ [32] and I will not repeat it here, save to observe that both the Family Court and the Court of Appeal have found that on the evidence before them W, by reason of a mental illness, defect or infirmity is incapable of managing his affairs in respect of the respective legal proceedings in each jurisdiction.[1]
[1] W v S [2025] WASCA 21 [50]; [W] and [S] [2022] FCWAM 170 (Disability Reasons) [14] ‑ [17] as recorded at W v S [2025] WASCA 21 [9].
Key facts include that parenting orders were made by consent by W and his former partner S on 29 September 2020. Financial settlement was not able to be agreed by the parties, and in the context of the disability finding by the Family Court on 21 July 2022, the Attorney General nominated the Public Trustee to be appointed as case guardian for W. That appointment was made by the Family Court on 10 November 2022. After two years of negotiation, the Family Court made Final Orders to which the Public Trustee consented on W's behalf on 11 November 2024. W filed an appeal against the consent order on 23 November 2024.
W did not comply with procedural requirements of the Family Court or Court of Appeal including but not limited to the method by which documents must be submitted, providing other parties with copies of all material provided to the Court, and attending hearings.[2] This led to a referral from the Court of Appeal to the Public Advocate to conduct an investigation, given the Public Trustee could not be appointed as they are now in a position of conflict of interest, and the Court is unable to appoint the Public Advocate as next friend.[3]
[2] W v S [2025] WASCA 21 [25]; (Disability Reasons [14] - [17] as recorded at W v S [2025] WASCA 21 [9].
[3] W v S [2025] WASCA 21[58]; Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65 [15].
The Public Advocate conducted an investigation which reviewed the medical evidence which had been before the Courts and was limited by the refusal of W to meet or speak with the investigator. The Public Advocate concluded it was clear that W needed a limited administrator to deal with that part of his estate which involves his appeal CACV 72 of 2024. The Public Advocate applied to the Tribunal for the appointment of an administrator under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) on 17 April 2025.
The matter was originally listed to be heard on 10 June 2025, but service to W could not be effected. Section 41(3) of the GA Act requires that notice of the hearing must be given to (at a minimum) the proposed represented person (in this case W), the Public Advocate and the applicant (in this case the Public Advocate). Section 115 of the GA Act requires that notice be provided personally to the person in respect of whom the application has been made,[4] and that the contents of the notice be explained in the language, mode of communication or terms which the person is most likely to understand,[5] and both orally and in writing.[6] The Sheriff had made multiple attempts to effect personal service but there was never any response at W's property.
[4] GA Act s 115(1).
[5] GA Act s 115(2).
[6] GA Act s 115(3).
I had summoned Dr M, who has been W's consultant psychiatrist since 2018, to provide up to date medical evidence. Dr M agreed at the Directions Hearing on 10 June 2025 to effect personal service to W at his next consultation. He also advised that W had been overseas recently.
Service was effected by Dr M on 11 June 2025 and the matter was heard on 1 July 2025. Dr M attended to provide oral evidence, as did the investigator from the Office of the Public Advocate (OPA). W did not attend, but he filed written submissions prior to the hearing (which did not really address the issues the Tribunal must decide) and afterwards in response to orders I made to try to facilitate his participation, to direct him to those issues, and to ascertain his views. I have read and considered all material W has provided to the Tribunal via the eCourts Portal, the oral evidence of Dr M, the investigation report of the OPA investigator and attached copies of documents which were before the Courts.
I have decided that W is not a person for whom I can appoint an administrator and dismissed the application for the reasons which follow.

Principles

In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned;[7]
•every person is presumed to be capable of looking after their own health and safety; making reasonable judgments in matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the Tribunal;[8]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[9] and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned.[10]
[7] GA Act s 4(2).
[8] GA Act s 4(3).
[9] GA Act s 4(4).
[10] GA Act s 4(7).
The overturning of the presumption of capacity[11] is a fundamental threshold issue which requires clear and cogent evidence.[12] The Briginshaw principle applies to evidence required to satisfy the civil standard of proof in findings of fact in proceedings under the GA Act.[13]
[11] GA Act s 4(3)
[12] LP [2020] WASAT 25 [48], [51] (Parry DCJ, Ms M Connor M, Hankey H); GC and PC (2014) 85 SR (WA) 23 [36].
[13] LP [99] - [110]; S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 (Justice Heenan) [105]; Briginshaw v Briginshaw (1938) 60 CLR 336, 361 ‑ 363.

Issues

Section 64(1) of the GA Act states:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 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
(b)is in need of an administrator of his estate, the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint —
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
As set out in FY [2019] WASAT 118 [12] ‑ [13] that means the three primary questions for the Tribunal to determine are:
1.Whether [W] suffers from a mental disability;
2.Whether, by reason of that mental disability, [W] is unable to make reasonable judgments in respect of matters relating to all or any part of his estate; and
3.Whether [W] is in need of an administrator of [his] estate.
If those three questions are answered 'yes', then the Tribunal is required to consider subsidiary questions, such as who should be appointed the administrator.

Does W suffer from a 'mental disability'?

The GA Act defines a mental disability as including an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.[14] The Tribunal recognises that this is not an exhaustive definition, and that it does not require a finding of the existence of one or more recognised medical conditions.[15]
[14] GA Act s 3(1) 'mental disability'.
[15] FY [2019] WASAT 118 [24]-[32].

Dr M has been W's consultant psychiatrist since 2018 and sees him regularly. The Public Advocate filed copies of a 'Medical Attendant's Statement' dated 10 December 2020 (for the purpose of a total and permanent disability claim under a superannuation scheme), an email from Dr M to a staff member at the Department of Justice dated 8 February 2023 and a Statutory Declaration dated 23 January 2025 stamped with Dr M's stamp but with a signature unlike his signature on the prior documents.
Dr M provided oral evidence on 1 July 2025. I will set this out in some detail given this is the one jurisdiction in which Dr M has provided his evidence orally, and because he has not provided a new written report to the Tribunal.
I found Dr M to be a credible witness. His evidence was thoughtful, professional and measured. I accept his evidence and make findings of fact that reflect his current professional clinical assessment of W as set out in [20] - [23] below.
Dr M stated that W does not have any intellectual disability, acquired brain injury or dementia.
Dr M reports that W currently has diagnoses of unipolar depression, which is non-psychotic, and post-traumatic stress disorder (PTSD) arising from the death of his child in 1996 which is partially encapsulated. Dr M explained that this means W is subject to ongoing recurrence with persistent difficulties with insomnia and general anxiety features.
Dr M reports that W has historical adjustment disorder related to work‑place stressors which leads to his ongoing inability to work.
Dr M reports that W does not have any diagnosis of a primary psychotic disorder (including bipolar affective disorder, schizoaffective disorder or schizophrenia) which would lead to paranoid or persecutory delusions.
Dr M states that W has some over-valued ideation in the paranoid space which Dr M characterises as a 'protest' against the authority of the Court which he feels is targeting him. Dr M reports W feels disempowered by the loss of one of his sons and being unable to work. He says W feels the current Family Court matter threatens his estate.
The Medical Attendant's statement of 10 December 2020 of Dr M reports a diagnosis of a chronic and generalised anxiety disorder being managed with medication and ongoing psychotherapy.
The email of 8 February 2023 reports Dr M is seeing W every 4 ‑ 6 weeks and has done so since January 2018. It reports diagnoses of major depressive disorder (in partial remission), generalised anxiety disorder (with reactive stress-induced exacerbations) and a grief and loss dynamic. It describes the 'unremitting nature of the family court proceedings' causing W to 'suffer a very significant emotional burden'.
The Statutory Declaration dated 23 January 2025 states that W has an anxiety disorder.
I note the Court of Appeal's concern regarding a report dated 9 December 2024 purportedly of Dr M attached to an email sent to that court by W on 12 December 2024.[16] Dr M has no record of writing a report regarding W on that date on file.[17] Neither I nor Dr M had a copy of that report to allow any further consideration.
[16] W v S [23].
[17] Dr M oral evidence 10 June 2025.
I am satisfied and I find that W suffers from a psychiatric condition or conditions, the precise diagnostic label of which has altered over time. I find that he is currently suffering from unipolar depression and PTSD based on the evidence of Dr M, his long‑term psychiatrist. I find that W does have a mental disability as defined in the GA Act.

Is W, by reason of that mental disability, unable to make reasonable judgments in respect of matters relating to all or any part of his estate?

The application by OPA is limited in its scope - it is only contended that W lacks capacity to make reasonable judgments in relation to the legal proceedings before the Court of Appeal and the Family Court (where enforcement proceedings are stayed pending the determination of W's appeal against the consent orders made on his behalf).
I must determine whether W's unipolar depression and/or PTSD are currently interfering with his ability to manage the legal proceedings. To do so I must 'consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a "reasonable judgment" (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances'.[18]
[18] FY [52]; FS [2007] WASAT 202 [106] (Barker J, Ms Toohey & Mr Mansveld); The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45] (Pritchard J).
The abilities required for a person to instruct a lawyer or to act as a self‑represented litigant have been usefully summarised by the Court of Appeal in W v S [41] - [47] which I adopt without repeating.
Of particular note, the person must be able to comprehend and evaluate the difficulties, costs and effort involved in pursuing the claim, and engage in the continuing process of cooperation, interaction and decision-making that exists in running any civil action.[19]
[19] Rappard v Williams [2013] NSWSC 1279 [78]; cited in W v S [43].
I also note Seaward J's observation that '[a] person can lack the mental capacity to participate in legal proceedings yet still be capable of performing the usual activities of daily life. The expression involves a consideration of whether the person has sufficient mental capacity to understand the case and the legal issues involved, to make decisions in relation to the case and (if instructing a lawyer) to give instructions'.[20]
[20] Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91 [89].
W made written submissions in response to my orders made on 1 July 2025 which included asking whether he believed he needed a substitute decision-maker to take over making decisions about his legal cases, including whether or not to proceed with or contest them.
W responded:[21]
I firmly assert that I do not require, nor would it be appropriate to impose, a substitute decision-maker or next friend in these proceedings. My cognitive capacity, insight and professional judgment remain entirely intact. There is not a person in the world better placed or more qualified to represent my lived experience, my values and the injustices I have endured than myself. To suggest otherwise is not only unfounded, but dismissive of my expertise, my autonomy and my dignity as a capable adult and seasoned practitioner.
[21] W submissions lodged 14 July 2025.
The Court of Appeal sets out the following:[22]
the appellant has, throughout proceedings, failed to comply with the CoA Rules in various respects. It is apparent that he did not serve the appeal notice on either respondent. He has not filed the responsive evidence or submissions provided for in the registrar's and this court's programming orders. He has not filed an appellant's case within the time required by the CoA Rules. He has failed to attend the hearings on 13 December 2024 and 24 January 2025. His correspondence with the Court of Appeal office has focussed on criticism of the first respondent's legal representative. Despite being given a copy of the transcript of the hearing on 13 December 2024, he has continued to send material to the court in an inappropriate form without copying the respondents in on his communications.
[22] W v S [40].
The Family Court reasons state '[t]o the extent [W] maintains the communications he has provided to the Court are sufficient for the purpose of satisfying the requirement for him to provide evidence, I do not accept this'.[23]
[23] Disability Reasons as quoted in W v S [9].
In his interactions with the Tribunal, W initially attempted to file material by email or via the contact form section of the Tribunal website. The Tribunal only accepts material by electronic lodgment on the eCourts Portal, by post, fax or in person. In correspondence from our administrative staff to W, these options were set out, along with the options for participation in the hearing, if he wished to attend, and noting his stated concerns regarding the traumatic effect on him of participating. Options for proposed represented persons include participating in person, by video or telephone, or not attending.
W was able to file submissions via the eCourts Portal. These submissions demonstrate that there were a number of issues regarding the Tribunal matter which W did not understand. They include that he appeared to believe that his former partner was the applicant. The Public Advocate is the applicant and W's former partner is not a party in this proceeding. W's former partner is the applicant in the Family Court matter.
W questioned the involvement of the OPA investigator, who was involved because the Court of Appeal referred the matter to the Public Advocate for investigation of whether W was a person for whom a guardian or administrator needed to be appointed. The OPA investigator attended the hearing both to provide evidence and to represent the Public Advocate as applicant. W also appeared to believe the Family Court had made the referral to the Tribunal.[24]
[24] W submissions filed 30 June 2025.
W expressed unhappiness with the impact of attempted service of notice of the hearing on him as being insufficiently trauma‑informed. As noted at [9], personal service is a requirement prior to the Tribunal being able to hear an application for the appointment of a guardian or administrator.
W stated 'the accommodations you have suggested (telephone, videolink, separate room, security escort) remain psychologically inadequate for the nature of my trauma. As trauma experts have noted, the very act of testifying can itself re-trigger PTSD symptoms … being forced to attend the Tribunal (even via phone or video) poses an unacceptable risk of aggravating the trauma I am struggling to deal with'.[25]
[25] W submissions filed 30 June 2025.
W filed submissions which made allegations regarding his former partner and interactions with their child who is the subject of the parenting orders. These matters cannot be dealt with by the Tribunal.

W made allegations of denial of procedural fairness and misconduct against the Family Court based on there being an allegedly incorrect email for W on that court's records. Again, this is not a matter for the Tribunal.
W stated that he was 'concerned by the repeated suggestion that I seek legal representation. In my experience, the legal processes I have been through have only compounded my trauma, so the automatic assumption that I need a lawyer is itself harmful'.[26]
[26] W submissions filed 30 June 2025.
I note that advantages of instructing a lawyer may include having them drafting and filing documents which comply with the administrative procedures required by the court in which a remedy is sought and having them appear on your behalf if direct participation is intolerable.
W states 'Despite my documented disability (irrefutably caused by this process and abuse) - acknowledged by medical and allied health professionals - and the financial ruin caused by my victimisation, the courts have repeatedly failed to recognise or appropriately accommodate these realities. I have been forced to endure protracted litigation at enormous emotional, physical and financial cost, at times barely avoiding hospitalisation as a result of arrogant indifference by the judiciary'.[27]
[27] W submissions 14 July 2025.
I note that the current application to the Court of Appeal was made by W. My understanding is that if W withdrew his appeal and complied with the consent order made in the Family Court there would be no legal matter on foot. W has filed a submission titled 'Position Statement: Why Any Financial Adjustment in Favour of the Applicant is Gravely Ill-Advised and Redundant' which demonstrates that he still contests the fairness of the consent orders.[28]
[28] W submissions filed 28 June 2025.
W has filed copies of his 'Affidavit' filed with the Court of Appeal and variously described as sworn or affirmed by W on 4 January 2025.
In the 'Affidavit' W states that he has represented himself in matters at the AAT and/or ART in or around 2022 - 2024. He requests that the same accommodations be made in the Court of Appeal that applied in the AAT/ART including remote participation with trauma-informed decision-makers, submission of written arguments and the absence of known aggravators in a calm and respectful procedural environment.
The OPA investigator gave evidence that W's interactions with him did not allow any meaningful exploration of the issues before the Tribunal. Despite attempting to engage via multiple channels, it appeared to the investigator that W 'had a wall up'. The OPA investigator was concerned that W may not realise that he could 'lose his house' as a result of his actions.
Dr M was aware of the issues causing concern to the courts and had explored W's understanding both through their ongoing therapeutic relationship but specifically in the context of effecting service to W.
Dr M stated that 'W feels disempowered through the loss of his son and his inability to work. W feels that the current Family Court matter threatens his estate'. Dr M's clinical opinion is that W's conduct is a consequence of his life experience rather than due to mental illness.
I asked Dr M if the diagnoses of depression and/or PTSD are leading to an impairment in W's ability to comply with the procedural requirements which have to be complied with if you seek assistance of a court in granting remedy for a harm, and if he can understand that he will have to arrange for his filing and submissions to comply with their filing requirements.
Dr M said '[W] does understand the context sufficiently. He conducts his affairs. He keeps up his accounts. At an executive level he can run his own life and be a safe and nurturing presence for his son. He can navigate overseas travel and make his way to and from Australia. He is not burdening under any inability to understand his obligations to instruct legal counsel and comply with the requirements of filing documentation. I can't understand why he doesn't do it other than potentially a refusal to comply. He clearly has the capacity to do that'.[29]
[29] Oral evidence Dr M 1 July 2025.
I then asked 'Does he understand what his options and the consequences are of complying versus not complying?'
Dr M said:
Yes. I can speak to this because of the conversation when I delivered him the documentation. He is aware that by not engaging he will potentiate the situation that will increase the amount of time and the administrative burden and may increase the costs to him and supplementary costs that the court may deliver upon him. He appreciates that possibility.
I asked 'Does he understand that if he does not comply the Supreme Court may dismiss his case and he may lose any possibility of relief through that court?'
Dr M answered 'Yes, he does'.
The OPA investigator then observed that W has filed material which contains many irrelevant or incorrect assertions, and asked Dr M if that might indicate that W does not really understand the legal issues.
Dr M said 'When [W] feels invisible he feels most enraged. He is trying to communicate where his suffering lies'.
Dr M explained 'the psychodynamic explanation is that this is [W]'s reaction to the catastrophe of life. W used to be [a senior allied health professional]. He has feelings of powerlessness, invalidity and impotence. He sees himself as being a victim of a grand injustice in relation to his estate. I cannot convince myself that this is due to an axis 1 diagnosis of depression, anxiety, psychosis or a mood disorder. It is not due to a treatable mental illness'.[30]
[30] Dr M oral evidence 1 July 2025.
I asked Dr M what he understood W's views and wishes might be, and particularly what he thought his reaction might be if I found he lacked capacity and appointed a substitute decision-maker on his behalf.
Dr M said:[31]
[W] accepts that by refusing to engage and comply with the process he may very well have a substitute decision-maker acting on his behalf. He is ambivalent to that and it angers him but he accepts that it might be an outcome. What is most striking is that even though potentially he gets a less good outcome by refusing to engage, he is choosing to 'protest'. He's accepting shooting himself in the foot by refusing to engage in the administrative process. Maintaining power in this situation, albeit counter-intuitively, is an assertion of his agency after suffering significant loss in his adult life. The position of 'abject protest' despite any reasonable fair observer saying 'You're better off aligning yourself with this process for a least worst outcome' if you will but he's not doing that.
[31] Dr M oral evidence 1 July 2025.
W's long-term treating clinician Dr M has explored with W the very issues at the heart of his behaviour in the Family Court and the Court of Appeal which have led those courts to infer that his behaviour is because of his mental disabilities. Dr M has told me in the clearest terms that he does not believe that the behaviours are caused by W's depression or PTSD (both Axis 1 disorders). He does not believe they are caused by any treatable mental illness. He believes they are an inexplicable choice being made by a person with capacity.
I accept Dr M's clinical opinion, because he knows W extremely well, and is an appropriately qualified and experienced consultant psychiatrist. I am satisfied that on the evidence before me, W's behaviour is not 'by reason of' a mental disability.
I am satisfied, and I find (as the Family Court and the Court of Appeal have), that W is not making reasonable judgments in relation to his legal proceedings. However, on the balance of the evidence before me at this point in time, the cause of that is a choice being made by W as a person with capacity, who understands the potential negative consequences for him. As such, W does not come within the protective jurisdiction of the GA Act, and he is not currently a person for whom I can appoint an administrator. As a result, I must dismiss this application.

Orders

The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
21 JULY 2025