K [2026] WASAT 46

[2026] WASAT 46 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : K [2026] WASAT 46 MEMBER : DR M EVANS-BONNER, SENIOR MEMBER HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 5 MAY 2026 FILE NO/S : GAA 1653 of 2026 K Represented Person C Applicant PUBLIC ADVOCATE Third Party PUBLIC TRUSTEE Fourth Party Catchwords: Jurisdiction - Application under s 85 of the Guardianship and Administration Act 1990 (WA) dismissed by a single member under s 47(2) of the State Administrative Tribunal Act 2004 (WA) - Application for review of the single member's decision under s 17A of the Guardianship and Administration Act 1990 (WA) - Whether Tribunal has jurisdiction to review a proceeding dismissed under s 47(2) of the State Administrative Tribunal Act 2004 (WA) under s 17A of the Guardianship and Administration Act 1990 (WA) - Tribunal does not have -- 1 of 16 -- [2026] WASAT 46 Page 2 jurisdiction - Application for s 17A review dismissed on the basis that it is misconceived Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 4(4), s 4(5), s 4(6), s 4(7), s 13(1), s 17A, s 17A(1), s 18(1), s 84, s 85, s 85(1), s 85(1)(c), s 85(2), s 90 State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a), s 47(2), s 49, s 60(2), s 105 Result: Application for s 17A review dismissed on the basis that it is misconceived because the Tribunal does not have jurisdiction to review a proceeding dismissed under s 47(2) of the State Administrative Tribunal Act 2004 (WA) under s 17A of the Guardianship and Administration Act 1990 (WA) Category: A Representation: Counsel: Represented Person : N/A Applicant : N/A Third Party : N/A Fourth Party : N/A Solicitors: Represented Person : N/A Applicant : N/A Third Party : N/A Fourth Party : N/A Case(s) referred to in decision(s): Davis v NSW Minister for Health [2023] NSWCATAP 211 Fry v Municipal Electoral Tribunal (Review and Regulation) [2020] VCAT 888 K [2026] WASAT 16 K [No 2] [2026] WASAT 23 -- 2 of 16 -- [2026] WASAT 46 Page 3 Stanley and Minister for Foreign Affairs [2018] AATA 982 WR and HR [2014] WASAT 107 -- 3 of 16 -- [2026] WASAT 46 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Overview 1 The issue for determination in this proceeding is whether the Full Tribunal has jurisdiction to undertake a review, pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act), of a decision of a single Member of the Tribunal made under s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Background 2 This matter concerns K, a 42-year-old woman who is intellectually disabled and profoundly deaf. 3 K has a mother, D, and two brothers, N and C. There is considerable conflict and animosity between these family members. 4 K has had an administrator appointed to make financial decisions for her, and a guardian to make personal decisions for her, since 6 May 2015. 5 Initially, those roles were undertaken by K's mother, D, until mid-2024 when the Tribunal revoked the orders and appointed the Public Trustee and the Public Advocate as plenary administrator and limited guardian respectively. 6 Since the Public Advocate and Public Trustee were appointed in 2024, there have been nine other applications made about K, with seven of them being made by C, one by D, and another by the Public Advocate. 7 On 19 March 2025, as the result of a review under s 17A of the GA Act following an application by D, the Full Tribunal made limited guardianship orders appointing the Public Advocate as a limited guardian with decision-making functions in the areas of accommodation, treatment, services, interstate or overseas travel, NDIS restrictive practices, and a contact function. The Full Tribunal also appointed the Public Trustee as plenary administrator and directed the Public Trustee to investigate whether the represented person had suffered any loss or damage by reason or any action or inaction by the superannuation company CBUS, and any other person (including D) as administrator. The order was to be reviewed by 19 March 2026. 8 On 8 December 2025, C made an application to the Tribunal under s 85(2) of the GA Act (the s 85 Application). That subsection provides -- 4 of 16 -- [2026] WASAT 46 Page 5 that the Tribunal shall review a guardianship or administration order if certain conditions specified in s 85(1) are met, such as if the Tribunal is of the opinion the guardian or administrator is guilty of such neglect, misconduct or default that, in the opinion of the Tribunal, they are rendered unfit to continue.1 9 In summary, C disagreed with decisions made by the Public Advocate and the Public Trustee on behalf of K. He made allegations about the conduct and suitability of both as decision makers for K. Instead, C wants to be the guardian and the administrator for K. 10 On 19 December 2025, I made extensive programming orders relating to the s 85 Application, including orders about access to documents requested by C. 11 I listed a 2 day hearing to determine the question of whether the conditions for the s 85 Application to proceed (specifically, under s 85(1)(c) of the GA Act) are met, and if so, I ordered that the matter would proceed immediately as a s 85(2) review of the guardianship and administration orders made on 19 March 2025. 12 I further ordered that if the conditions for the s 85 Application to proceed were not met, the matter would be determined at the final hearing under s 84 of the GA Act and the applicant would be changed to the State Administrative Tribunal. That was because the 19 March 2025 order was to be reviewed by 19 March 2026, pursuant to s 84 of the GA Act. 13 Thus, practically speaking, a review of the 19 March 2025 orders would be undertaken, either as a result of the s 85 Application or as a result of the s 84 periodic review. 14 Following a hearing of the s 85(2) application on 24 February 2026, Member Bunney made a decision on 3 March 2026 (amended on 12 March 2026), under s 47(2) of the SAT Act, to dismiss the s 85 Application (the Dismissal Decision): K [2026] WASAT 16. 15 As per my orders, the matter then proceeded to a s 84 review of the 19 March 2025 orders. The hearing was on 5 March 2026. N wanted the Public Trustee and Public Advocate to be reappointed. Both C and D separately put themselves forward for the roles of guardian and administrator: K [No 2] [2026] WASAT 23. 1 GA Act, s 85(1)(c). -- 5 of 16 -- [2026] WASAT 46 Page 6 16 With respect to the Dismissal Decision, the specific orders made by Member Bunney were as follows: The Tribunal orders: 1. Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) the proceeding is dismissed as it is frivolous, vexatious, misconceived, lacking in substance and is otherwise an abuse of process. 2. The written reasons for the decision of the Tribunal will be published. 3. Pursuant to order 8 of the orders dated 19 December 2025: (a) the orders of 19 March 2025 will be reviewed pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) at 10 am on Thursday 5 March 2026 for a duration of one hour at 565 Hay Street, Perth, Western Australia with the parties to attend in person, by videolink or by telephone; and (b) the Tribunal is substituted as the applicant in the review. 17 On 18 March 2026, the Tribunal, constituted by a single member, made orders appointing the Public Advocate as a limited guardian, and the Public Trustee as plenary administrator. The orders were to be reviewed by 18 March 2031. 18 On 22 March 2026, C filed an application seeking review of the Dismissal Decision by the Full Tribunal pursuant to s 17A of the GA Act (s 17A Application). The submissions 19 On 27 March 2026, I made orders: • Requiring C to file written submissions of no longer than 5 pages addressing why he believes there is jurisdiction for the Full Tribunal to review the Dismissal Decision under s 17A of the GA Act, by 8 April 2026 (Jurisdiction Issue); • Providing that any other party who wishes to do so may file submissions of no longer than 5 pages on the Jurisdiction Issue by 8 April 2026; and • That following receipt of submissions made pursuant to the above orders, the question of whether the Full Tribunal has -- 6 of 16 -- [2026] WASAT 46 Page 7 jurisdiction to deal with the 17A Application will, subject to further order of the Tribunal, be determined on the documents pursuant to s 60(2) of the SAT Act. 20 On 2 April 2026, the Public Advocate filed written submissions on the Jurisdiction Issue. 21 On 8 April 2026, C filed written submissions on the Jurisdiction Issue. 22 No submissions were filed by any other party. 23 The Public Advocate submitted that s 17A of the GA Act does not provide a right of review of a decision made under s 47 of the SAT Act, and nor does the SAT Act provide a right of review to the Full Tribunal for a decision made under s 47 of the SAT Act. 24 Consequently, the Public Advocate submitted that the 17A Application should be dismissed because the Tribunal has no jurisdiction to carry out the requested review under s 17A of the GA Act. 25 The Public Advocate further submitted that the SAT Act only provides for a right of appeal to the Supreme Court on a question of law under s 105 of the SAT Act. 26 C submitted that the Dismissal Decision was, in substance, a final disposition of the s 85 application and that '[i]ts substantive character is not altered by the procedural mechanism used to dispose of it'. 27 C submitted that, in other words, '[s]ubstance should prevail over label' and that '[t]he question is not only which section was written in the operative order, but what the order actually did', which was to finally determine a proceeding under s 85 of the GA Act. He therefore argued that s 17A 'is engaged' and that the Dismissal Decision is reviewable by the Full Tribunal pursuant to s 17A. 28 C referenced the Tribunal's 'Guide for Guardianship and Administration proceedings', published on the Tribunal's web site. This Guide states that if a person is aggrieved by a decision made by a single member, they can apply for it to be reviewed by the Full Tribunal. 2 2 Info Sheet 2: Guide for Guardianship and Administration proceedings (Guide), page 5. -- 7 of 16 -- [2026] WASAT 46 Page 8 29 C submitted that whilst this 'guidance is not determinative, but it is consistent with a practical and coherent reading of the statutory scheme, rather than a narrow reading that turns entirely on the procedural form chosen by the one-member Tribunal.' 30 C also referenced a letter from the Tribunal's Executive Officer to the parties which accompanied the Tribunal's reasons for the Dismissal Decision.3 He noted that the letter states he 'may have a right' to seek to have the Tribunal conduct a review of the decision and/or to appeal the decision. He submitted, '[t]hat did not determine jurisdiction, but it confirms that the review question was not closed on its face'. 31 C also referred to s 49 of the SAT Act. He submitted that his s 17A Application is not 'another proceeding of the same kind', as contemplated in that section. He stated that it was not a fresh attempt to bring the same s 85 application again, but that it was a request for a s 17A review by the Full Tribunal of the one-member decision. He submitted that s 49 of the SAT Act therefore does not answer the question as to whether the Dismissal Decision is reviewable under s 17A of the GA Act. Legislative Framework SAT Act 32 Section 47 of the SAT Act provides: 47. Frivolous etc. proceedings, dismissal of etc. (1) This section applies if the Tribunal believes that a proceeding - (a) is frivolous, vexatious, misconceived or lacking in substance; or (b) is being used for an improper purpose; or (c) is otherwise an abuse of process. (2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders. (3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member. 3 Letter from Executive Officer dated 11 March 2026, emailed to C. -- 8 of 16 -- [2026] WASAT 46 Page 9 (4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative. 33 Section 49 of the SAT Act provides that if a matter is dismissed under s 47 of the SAT Act, another proceeding of the same kind cannot be commenced without leave. It provides: 49. No new application after dismissal etc. under s. 46, 47 or 48 without leave If a proceeding is dismissed or struck out under section 46, 47 or 48, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member. 34 Section 105 of the SAT Act concerns appeals. The relevant subsections provide: 105. Appeal from Tribunal's decision (1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal. (2) The appeal can only be brought on a question of law. (3) The appeal lies to - (a) the Court of Appeal, if the decision was made by - (i) a judicial member; or (ii) the Tribunal constituted by members who include a judicial member; (b) the Supreme Court exercising its other jurisdiction, in any other case. GA Act 35 Section 17A of the GA Act provides for a right of review of 'determinations' made under the GA Act by a single member. It provides: 17A. Review (1) Where the State Administrative Tribunal consisting of one member makes any determination, a party who is aggrieved by the determination may request the -- 9 of 16 -- [2026] WASAT 46 Page 10 President to arrange for a Full Tribunal to review the determination, and the President shall comply with any such request. (2) A request under subsection (1) is to be made within 28 days of the date of the determination or, if the Full Tribunal considers there is good reason for making the request outside that time, such further time as the Full Tribunal allows. 36 The 'Full Tribunal' is defined in s 3 of the GA Act as follows: Full Tribunal means the State Administrative Tribunal constituted so as to consist of - (a) the President; or (b) a Deputy President, and 2 other members; 37 A 'determination' is defined in s 3 of the GA Act as follows: determination, in relation to the State Administrative Tribunal, means - (a) a grant or refusal of leave under section 87; or (b) the making of, or refusal to make, an order under section 43 or 64; or (c) the refusal to issue a warrant under section 49; or (d) the making of, or refusal to make, an order on a review under section 84, 85 or 86; or (e) the giving of a direction under section 47 or 74; or (f) the giving or refusal of consent under section 63; or (g) the making of or refusal to make a declaration under section 111 or the revocation of or refusal to revoke such a declaration; or (h) the making of, or refusal to make, an order under section 66, 104A(2), 106, 109 or 112(4); or (i) a decision made under Part 9E Division 5; (My emphasis underlined.) 38 Section 85(1) of the GA Act provides that the Tribunal shall review a guardianship or administration order if any of the conditions precedent -- 10 of 16 -- [2026] WASAT 46 Page 11 in s 85(1) of the GA Act are satisfied. The relevant part is s 85(1)(c) of the GA Act which provides: (1) Without limiting section 84 or 86, the State Administrative Tribunal shall review a guardianship or administration order if a guardian or administrator - … (c) has been guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders him unfit to continue as guardian or administrator; … 39 Section 85(1) of the GA Act provides that if any of the conditions precedent are satisfied, it is mandatory (as indicated by the word 'shall') for the Tribunal to review the orders. 40 The powers of the Tribunal on review are set out in s 90 of the GA Act, which provides: (1) Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order - (a) amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be; (b) revoke the order, or revoke the order and substitute another order for it; or (c) without limiting paragraphs (a) and (b) - (i) revoke the appointment of any guardian or administrator; (ii) appoint a new or additional guardian or administrator; (iii) appoint an alternate guardian. (2) A review under this Part is in the State Administrative Tribunal's original jurisdiction. 41 In WR and HR4 the Tribunal outlined what a review of a guardianship order would involve. The Tribunal observed: 4 WR and HR [2014] WASAT 107 (WR and HR) at [4]. -- 11 of 16 -- [2026] WASAT 46 Page 12 … the hearing of a review of a guardianship order is a hearing de novo, looking afresh at the question of whether a guardianship order can or should be made in the particular circumstances that exist at the time of the review hearing. 42 In WR and HR, the Tribunal set out the substantive issues that the Tribunal needs to determine in a guardianship review application. The Tribunal stated5: The issues to be determined in this review application are therefore: 1) Whether HR is a person for whom a guardianship order can be made (capacity)[.] 2) Whether there is a need for a guardianship order. When considering whether there is a need for a guardianship order, the Tribunal must keep in mind s 4(4) of the GA Act, which provides: 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. If the above questions are answered in the affirmative, the following further issues arise: 3) Whether any order should be plenary or limited, what functions should be conferred, and what directions or conditions, if any, should be made. 4) Who should be appointed as guardian. 5) The period for which any order should be made (this is the date by which the order must be reviewed by the Tribunal). When considering the issue of whether any order should be plenary or limited, regard must be had to the statutory requirement in s 4(5) of the GA Act that essentially provides that a plenary guardian must not be appointed if the appointment of a limited guardian would be sufficient. In addition, any order appointing a limited guardian must be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action (s 4(6) of the GA Act). In determining the application as a whole, including each of the above issues, the Tribunal is required to have HR's best interests as its primary concern (s 4(2) of the GA Act). In addition, it is necessary, where 5 WR and HR at [5] - [9]. -- 12 of 16 -- [2026] WASAT 46 Page 13 possible, to ascertain the views and wishes of HR in relation to the matters raised by this application (s 4(7) of the GA Act). 43 The substantive issues before the Tribunal are similar when an administration order is being reviewed. In summary, the main issues for determination by the Tribunal will be: (1) whether the proposed represented person is a person for whom an administration order can be made?; (2) Whether there is a need for an administration order?; (3) If there is a need, whether any order should be plenary or limited, what functions should be conferred, and what directions or conditions, if any, should be made?; (4) Who should be appointed as administrator?; and (5) The date by which the order should be reviewed by the Tribunal. 44 For convenience, below, I refer to these substantive issues as capacity, need, function, identity and duration. Consideration 45 Section 17A(1) of the GA Act provides that if a member makes a 'determination', and a person is aggrieved by it, the aggrieved person may request the President of the Tribunal to arrange for a Full Tribunal to review the determination. 46 A decision must fall within the definition of a 'determination' to be reviewable by the Full Tribunal under s 17A of the GA Act. 47 A 'determination' is defined by s 3 of the GA Act. It includes 'the making of, or refusal to make, an order on a review under section … 85'. 48 However, Member Bunney did not make, or refuse to make, an order on a review under s 85 of the GA Act in the Dismissal Decision. 49 For the reasons I will now explain, there was no review under s 85 of the GA Act because the condition precedent required for the Tribunal to undertake a review under that section was not satisfied. Member Bunney therefore did not proceed to consider the substantive issues of capacity, need, function, identity and duration and to make an order under s 90 of the GA Act. -- 13 of 16 -- [2026] WASAT 46 Page 14 50 As I mentioned above, s 85(1)(c) of the GA Act is a condition precedent which needs to be satisfied before the Tribunal will review a guardianship or administration order under s 85 of the GA Act. That is, the Tribunal needs to be satisfied that a guardian or administrator has been guilty of such neglect, misconduct or default that it renders them unfit to continue. 51 However, Member Bunney found that none of the grounds, which C alleged demonstrated neglect, misconduct or default on the part of the guardian or administrator, were made out. The learned Member found that the s 85 Application failed, and she dismissed it under s 47(2) of the SAT Act.6 52 Put differently, an order under s 47(2) of the SAT Act is not an order 'on a review', as contemplated in the definition of 'determination' in s 3 of the GA Act. An 'order on a review' is a final order which responds to the substantive issues of capacity, need, function, identity and duration. An order made under s 47(2) of the SAT Act is an order made before a review of those substantive issues. As I have explained, the review of the substantive issues did not proceed because the learned Member was not satisfied that the condition precedent in s 85(1)(c) of the GA Act was met. Therefore, no final order was made under s 90 of the GA Act, which would be required to meet the definition of a 'determination' under s 3 of the GA Act. 53 C's submissions that the Dismissal Decision was, as a matter of substance, a decision under s 85 of the GA Act that is reviewable under s 17A of the GA Act should therefore be rejected. 54 Put simply, no orders were made, or refused to be made, on a review of orders under s 85, because the s 85 review did not proceed. 55 Instead, and as per my programming directions, the orders were reviewed by Member Bunney under s 84 of the GA Act. Member Bunney published her orders and reasons in the s 84 review in K [No 2].7 56 Those orders are reviewable under s 17A because the making of orders on a s 84 review falls within the definition of a 'determination'. C has separately sought review of the orders made under s 84 in a separate s 17A Application. 6 K [2026] WASAT 16 at [173]. 7 K [No 2] [2026] WASAT 23. -- 14 of 16 -- [2026] WASAT 46 Page 15 57 Consequently, there is a futility to C's s 17A Application because, although the s 85 Application was dismissed, the orders were nevertheless reviewed under s 84, and the substantive issues were considered by Member Bunney in that review, with orders being made under s 90 of the GA Act. That, in itself, is a basis for this s 17A Application being dismissed because a successful outcome for C would have no practical effect in that it would result in a review which already took place under s 84 of the GA Act.8 58 There are no provisions in the SAT Act which assist C either. Decisions made under s 47(2) of the SAT Act are not included in the definition of a 'determination' in s 3 of the GA Act. 59 There is also no express provision in the SAT Act whereby a decision in a guardianship and administration proceeding made under s 47(2) of the SAT Act would be reviewable under s 17A of the GA Act. 60 Instead, the correct avenue for appeal for the Dismissal Decision is to the Supreme Court on a question of law under s 105 of the SAT Act if the Court gives leave to appeal. 61 C has also referred to the Tribunal's Guide which summarises the process of review under s 17A of the GA Act. He also referred to a letter from the Executive Officer of the Tribunal which states that there 'may' be a right to 'seek to have the Tribunal conduct a review of the decision; and/or appeal the decision' (that is, the Dismissal Decision). Those resources are generic in nature and are not a substitute for the express provisions of the SAT Act and the GA Act, and do not create any rights of review in addition to those expressly provided for in the legislation. 62 I agree, however, that s 49 of the SAT Act (which provides that if a proceeding is dismissed under s 47, another proceeding of the same kind cannot be brought without the leave of a judicial member) does not assist C and is not relevant. C is not trying to bring the s 85 Application again. He is trying to seek review of an application that he believes was determined under s 85 of the GA Act under s 17A of the GA Act. 8 If a successful outcome would have no practical benefit for a party, it may be 'frivolous or vexatious' or 'lacking in substance' as defined in s 47(1)(a) of the SAT Act. See, generally, Davis v NSW Minister for Health [2023] NSWCATAP 211; Fry v Municipal Electoral Tribunal (Review and Regulation) [2020] VCAT 888; Stanley and Minister for Foreign Affairs [2018] AATA 982. -- 15 of 16 -- [2026] WASAT 46 Page 16 Conclusion 63 I am satisfied, and I find, that the Dismissal Decision, which was made under s 47(2) of the SAT Act was not a 'determination'. Consequently, the Full Tribunal does not have the jurisdiction to review it under s 17A of the GA Act. 64 I am also satisfied, and I find, that there is no provision in the SAT Act that gives a right of review of a decision made under s 47(2) of the SAT Act under s 17A(1) of the GA Act. 65 As there is no jurisdiction for the Tribunal to review the Dismissal Decision under s 17A(1) of the GAA, the s 17A Application should be dismissed under s 47(2) of the SAT Act on the basis that it is misconceived. Order The Tribunal orders: 1. Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA), the s 17A Application is dismissed on the basis that it is misconceived because the Full Tribunal has no jurisdiction to review a decision made under s 47(2) of the State Administrative Tribunal Act 2004 (WA) under s 17A of the Guardianship and Administration Act 1990 (WA). I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. DR M EVANS-BONNER, SENIOR MEMBER 5 MAY 2026 -- 16 of 16 --