Brandy v Human Rights and Equal Opportunity Commission & Ors

Commonwealth of Australia Constitution Act 1900, s 75, s 76

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 13, s 13(a), s 13(b), s 13(f), s 17A, s 40, s 43, s 43(1), s 44, s 45, s 46, s 48, s 49, s 50, s 51. s 64, s 68, s 69, s 70, s 71, s 72, s 77, s 80(1), s 80(3), s 80(4), s 84, s 107(1), s 107(1)(a), s 107(1)(b), s 108(1)(a), s 109(1)(a), s 109(1)(b), s 111

State Administrative Tribunal Act 2004 (WA), s 34, s 35, s 46(1)

Brandy v Human Rights and Equal Opportunity Commission & Ors [1995] HCA 10; (1995) 183 CLR 245

Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423

CGU Insurance Limited v Blakeley & Ors [2016] HCA 2; (2016) 259 CLR 339

Crouch v Commissioner for Railways (Queensland) [1985] HCA 69; (1985) 159 CLR 22

Fencott & Ors v Muller & Anor [1983] HCA 12; (1983) 152 CLR 570

KS [2008] WASAT 29

Love v Attorney General (NSW) (1990) 169 CLR 307

NM and SGF [2014] WASAT 103

Precision Data Holdings Ltd v Wills (1991) 173 CLR 167

Re McBain; Ex parte Australian Catholic Bishops Conference & Anor [2002] HCA 16; (2002) 209 CLR 372

Re the Judiciary Act 1903-1920 and Re the Navigation Act 1912-1920 [1921] HCA 20; (1921) 29 CLR 257

Rochford v Dayes [1989] HCA 17

The Commonwealth of Australia & Ors v The Hospital Contribution Fund of Australia & Ors [1982] HCA 13; (1981) 150 CLR 49

Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185

Watson and Godfrey v Cameron [1928] HCA 4; (1928) 40 CLR 446

Zistis v Zistis [2018] NSWSC 722

1. On 17 October 2017, MS, who is a resident of New South Wales, applied to the Tribunal under s 40 of the Guardianship and Administration Act 1990 (GA Act) seeking appointment of a guardian and administrator for his mother, GS. MS also made an application under s 109(1)(a) of the GA Act seeking an order for the production of records and accounts by his brother, RS, who was at the time appointed as one of two joint and several donees of an enduring power of attorney executed by GS. GS and RS are both residents of Western Australia.
2. The applications have a somewhat convoluted and involved procedural history. However, for present purposes it is only necessary to note that on 1 June 2018 the Tribunal listed both of the applications for a directions hearing on 28 June 2018 and advised the representatives of MS, GS and RS that the Tribunal wished to hear from the parties in relation to the question of jurisdiction in light of the High Court's decision in Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423 (Burns v Corbett). The Tribunal also conveyed that its preliminary view, subject to hearing from the parties, was that it did have jurisdiction in relation to the application under s 40 of the GA Act and the Tribunal did not have any preliminary view as to whether it had jurisdiction in relation to the application under s 109(1)(a) of the GA Act.
3. The Tribunal raised this issue with the parties as there can be no doubt, following the decision of the High Court in Burns v Corbett, that the Tribunal has no jurisdiction to adjudicate on any applications that involve a 'matter' 'between residents of different States' if it is not a State Court. An act that purports to give a tribunal such jurisdiction is not a valid exercise of the legislative powers of the State Parliament. Given the reasoning in Burns v Corbett, this must be the case despite the fact that s 13 of the GA Act expressly provides that the Tribunal has jurisdiction to consider applications for guardianship and administration orders and in relation to enduring powers of attorney: s 13(a), 13(b) and s 13(f) of the GA Act.
4. It was not in dispute in Burns v Corbett that the proceeding in question involved a 'matter' 'between residents of different States' and that the New South Wales Civil and Administrative Tribunal was not a State Court. In this case, neither party argues that the Tribunal is a State Court, and the Tribunal accepts that this is the case. However, there is a dispute as to whether either of MS's applications concern a 'matter' 'between residents of different States'.
5. GS submits that the Tribunal has no jurisdiction to determine either of MS's applications. Section 40, together with s 43 and s 64 of the GA Act allow for the proposed represented person, in this case GS, to have his or her rights impinged. An application for the appointment of a guardian and/or administrator under those sections of the GA Act involves a controversy as to immediate rights. Similarly, an application under s 109(1)(a) of the GA Act is a controversy in relation to the right of an applicant to receive copies of records and accounts from an attorney. GS further submits that the Tribunal is not a Court of a State, applying the approach in Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185 at [27], based on the following features of the Tribunal:

(a) members of the Tribunal are appointed for renewable terms;

(b) it is not called a Court by the State Administrative Tribunal Act 2004 (WA) (SAT Act);

(c) non-judicial members do not have to have legal qualifications; non-judicial members may be removed; and

(d) the Tribunal must refer any issue of contempt to a court and is not able to decide the issue itself and impose penalties.

1. GS submits that GS and MS are both 'parties' to the proceedings, and to the underlying 'matter' the subject of the proceedings. Therefore, as MS is a resident of another State, and as each of his applications is a 'matter' within the meaning of s 75 of the Commonwealth of Australia Constitution Act 1900 (Cth) (Commonwealth Constitution), the Tribunal, which is not a Court of a State, has no jurisdiction to determine any of MS's applications.
2. MS submits that the preliminary view of the Tribunal in relation to the application under s 40 of the GA Act is correct and chooses not to make any further submissions on that point. In relation to the application under s 109(1)(a) of the GA Act, MS submits that the power involved is analogous to a subpoena power and as such is merely a procedural provision that facilitates the Tribunal to make its determination in relation to the administration application, that is, it will allow the Tribunal to determine whether the actions of RS as GS's attorney are such that there is a need for an administration order despite there being an enduring power of attorney in place.
3. As an alternative submission, MS says that he is willing for the records and accounts to be filed with the Tribunal only, with no copy being given to him. On this basis, MS submits, MS would no longer have any right, duty or obligation capable of determination in the application. MS submits that it is possible to make an application under s 109(1)(a) of the GA Act for production of records and accounts just to the Tribunal. In support of this proposition MS relies on the principles for construction of contracts and severability of clauses in contract. The s 109(1)(a) of the GA Act application, as amended, would no longer be between MS and GS.
4. MS also submitted that if the s 109(1)(a) of the GA Act application is found to be outside of the Tribunal's jurisdiction, MS would invite the Tribunal to exercise its directions power under s 34 of the SAT Act. In response to this submission, GS submits that the same difficulties apply. GS submits that if documents are provided to the Tribunal pursuant to a direction under s 34 of the SAT Act, those documents would have to be made available to MS in order to provide for procedural fairness. Thus MS would have access to the documents, and as such, the question of whether documents should be produced pursuant to a direction under s 34 of the SAT Act remains a 'matter' between MS and RS (the holder of the documents), who are residents of different States.

Is there a 'matter' 'between residents of different States'?

1. A useful starting point is the description of 'matter' in Re the Judiciary Act 1903-1920 and Re the Navigation Act 1912-1920 [1921] HCA 20; (1921) 29 CLR 257 (Re the Navigation Act) at 265:

... we do not think that the word "matter" in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.

... a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. The adjudication of the Court may be sought in proceedings inter partes or ex parte, or, if Courts had the requisite jurisdiction, even in those administrative proceedings with reference to the custody, residence and management of the affairs of infants or lunatics[.]

1. The question for determination in the Re the Navigation Act case was whether it was beyond the power of the Commonwealth Parliament to confer on the High Court of Australia, jurisdiction to hear and determine any question of law as to the validity of any Act or enactment of the Parliament pursuant to s 88 of the Judiciary Act 1912­1920 (Cth) (Judiciary Act). Having determined that there can be no 'matter' unless there is some immediate right, duty or liability to be established by determination of the Court, the majority held that s 88 of the Judiciary Act was beyond power because it purported to empower the Court 'to determine abstract questions of law without the right or duty of any body or person being involved': Re Navigation Act at 267.
2. In Fencott & Ors v Muller & Anor [1983] HCA 12; (1983) 152 CLR 570 (Fencott) the meaning of 'matter' was considered in the context of determining whether all or part of the proceedings were outside the jurisdiction of the Federal Court. The question was whether part or all of the proceedings related to a matter(s) that was not one of those specified in s 75 and s 76 of the Commonwealth Constitution. Their Honours Mason, Murphy, Brennan and Deane JJ at 603 quoted the first of the two quotes cited above from Re Judiciary Act and expanded as follows:

Though the concept of 'matter' may be narrower than that of a 'legal proceeding', it is a term of wide import. "The word 'matters'", Griffith CJ said in South Australia v Victoria, 'was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice'. The concept of 'matter' as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the Court in Philip Morris.

(Citations omitted)

1. That there need not be more than one party for there to be a matter was confirmed in Re McBain; Ex parte Australian Catholic Bishops Conference & Anor [2002] HCA 16; (2002) 209 CLR 372 (Re McBain) at [4] per Gleeson CJ.
2. Their Honours Gaudron and Gummow JJ in the Re McBain case identified a three step approach to the identification of a 'matter' at [62]:

These statements suggest that the task of identification of the 'matter' said to be the subject of the present litigation is to be approached as a tripartite inquiry: first, the identification of the subject matter for determination ... ; secondly, the identification of the right, duty or liability to be established in each proceeding; thirdly, the identification of the controversy between the parties ... for the quelling of which the judicial power of the Commonwealth is involved. Whilst each of these inquiries maybe pursued separately, all are related aspects of the basal question, 'is there a "matter" in the sense required by Ch III of the Constitution?'[.]

(Citations omitted)

1. In CGU Insurance Limited v Blakeley & Ors [2016] HCA 2; (2016) 259 CLR 339 (CGU) their Honours French CJ, Keifel, Bell and Keane JJ confirmed, at [26], the notion that a 'matter' must be justiciable; it does not embrace a purely advisory opinion.
2. The Supreme Court New South Wales had to determine, in Zistis v Zistis [2018] NSWSC 722 (Zistis) whether the Civil and Administrative Tribunal (NSW) had jurisdiction to determine a residential tenancy dispute in light of the decision in Burns v Corbett. His Honour Latham J gained assistance in determining whether the proceedings involved a 'matter' by considering whether determination of the proceeding involved the exercise of judicial power. His Honour cited Love v Attorney General (NSW) (1990) 169 CLR 307 and Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 (Precision Data) in support of the proposition that (Zistis at [57]):

The accepted criteria for the characterisation of a power as a judicial power include the following (acknowledging that there is no definitive list of features); ...

(1) The power to deliver a binding and authoritative decision in determining a dispute between parties; ...

(2) The capacity to enforce those decisions, albeit that is not a necessary attribute of judicial power. The inability to enforce judgments is a factor weighing against the characterisation of the power as judicial; ...

(3) The ascertainment of existing rights and liabilities by the determination of issues of fact and law, as opposed to a determination of what legal rights and liabilities should be created; ...

(4) The observance of open justice principles and the rules of procedural fairness; ... Where a tribunal is not bound by the rules of evidence, this may indicate that the exercise of the power is administrative; ...

1. Whilst ordinarily the Tribunal would find very persuasive the approach taken by a Supreme Court in a matter that is substantially 'on all fours' with the question before the Tribunal, the Tribunal hesitates to directly follow the approach taken by his Honour Lathan J in this case. While the question of whether a judicial power is being exercised may shed light on whether there is a justiciable controversy to be determined, it is not quite the same question as whether there is jurisdiction to determine a 'matter' 'between residents of different States'. As the majority explained in CGU at [24] ­ [25]:

... Jurisdiction with respect to a particular subject matter is authority to adjudicate upon a class of questions concerning that subject matter. The existence before a court of a question of the relevant subject matter class is necessary to the court's authority to adjudicate. It is not, however, sufficient to enliven the judicial power. As Giffith CJ said in Ah Yick v Lehmert, the term 'federal jurisdiction' in s 71 of the Constitution means 'authority to exercise the judicial power of the Commonwealth ... within limits prescribed'. Later in the same judgment the Chief Justice spoke of Parliament, under s 77(i), giving to a federal court created by it 'jurisdiction to exercise any judicial power of the Commonwealth, which the Parliament may think fit to confer upon it'. The identification of the subject matter of the proceeding is necessary to determine whether judicial power is invoked within its prescribed limits.

... 'Jurisdiction' in the sense of authority to adjudicate and 'judicial power' are different concepts[.]

(Citations omitted)

1. In addition, a particular difficulty with determining whether a determination by the Tribunal involves the exercise of judicial power, is that 'there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not': Brandy v Human Rights and Equal Opportunity Commission & Ors [1995] HCA 10; (1995) 183 CLR 245 at 267.
2. Turning to the nature of the proceedings before the Tribunal, it is necessary to consider the applications under s 40 of the GA Act separately from the application under s 109(1)(a) of the GA Act.

1. In his application under s 40 of the GA Act, MS seeks the appointment of himself as the administrator of GS's estate and the appointment of the Public Advocate as GS's guardian on the basis that he alleges that GS has dementia and that condition causes GS to no longer be able to make her own personal or financial decisions.
2. Section 4 of the GA Act provides a set of principles that must be observed by the Tribunal in dealing with proceedings commenced under the GA Act:
   1. Principles stated

(1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.

(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 ­

(b) making reasonable judgments in respect of matters relating to his person;

(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 in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.

(7) In considering any matter 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.

1. Section 40 of the GA Act allows any person to apply to the Tribunal for a guardianship or administration order. Section 43(1) of the GA Act provides:
   1. Making of guardianship order

(1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 ­

(i) incapable of looking after his own health and safety;

(ii) unable to make reasonable judgments in respect of matters relating to his person; or

(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;

the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint ­

(d) a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or

(e) persons to be joint plenary guardians or joint limited guardians,

as the case may require, of the person in respect of whom the application is made.

1. Section 44 of the GA Act provides for who may be appointed as a guardian:
   1. Who may be appointed guardian

(1) A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal ­

(a) will act in the best interests of the person in respect of whom the application is made;

(b) is not in a position where his interests conflict or may conflict with the interests of that person; and

(c) is otherwise suitable to act as the guardian of that person.

(2) For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible ­

(a) the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;

(b) the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;

(c) the wishes of the person in respect of whom the application is made; and

(d) whether the proposed appointee will be able to perform the functions vested in him.

(3) Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.

(4) The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.

(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.

1. The authority of a plenary guardian is provided for in s 45 of the GA Act, which states:
   1. Authority of plenary guardian

(1) Subject to section 43(3), where a person is appointed as a plenary guardian, or 2 or more persons are appointed as joint plenary guardians, he or they have all of the functions in respect of the person of the represented person that are, under the Family Court Act 1997, vested in a person in whose favour has been made ­

(a) a parenting order which allocates parental responsibility for a child; and

(b) a parenting order which provides that a person is to share parental responsibility for a child,

as if the represented person were a child lacking in mature understanding, but a plenary guardian does not, and joint plenary guardians do not, have the right to chastise or punish a represented person.

(2) Without limiting subsection (1), a plenary guardian may do any of the following ­

(a) decide where the represented person is to live, whether permanently or temporarily;

(b) decide with whom the represented person is to live;

(c) decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;

(d) subject to subsection (4A), make treatment decisions for the represented person;

(e) decide what education and training the represented person is to receive;

(f) decide with whom the represented person is to associate;

(g) as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;

(h) as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person.

(3) A plenary guardian cannot do any of the following on behalf of the represented person ­

(c) consent, under section 17 of the Adoption Act 1994, to the adoption of a child or under section 69(1)(a)(ii) of that Act to the adoption of a represented person;

(da) consent, under section 21(2)(d) of the Surrogacy Act 2008, to the making of a parentage order under that Act; or

(d) under the Marriage Act 1961 of the Commonwealth, give consent in relation to the marriage of a minor, sign a notice of intended marriage or take part in the solemnization of a marriage.

(4A) A plenary guardian cannot consent to the sterilisation of the represented person, except in accordance with Division 3.

(4) A plenary guardian may not make a will or other testamentary disposition on behalf of a represented person but this subsection does not affect the operation of section 111A.

1. Section 46 of the GA Act provides that the authority of a limited guardian is that he, she or they has such functions mentioned in s 45 of the GA Act as the Tribunal vests in him, her or them. A guardian may execute such documents and do all such other things as are necessary for the performance of the functions vested in him, her or them: s 48 of the GA Act. In addition, in specified circumstances, a guardian may apply for, and be granted, a warrant to enter premises: s 49 of the GA Act.
2. Section 50 of the GA Act provides:

An action taken, decision made, consent given or refused, document executed or thing done by a guardian in the performance of the functions vested in him has effect as if it had been taken, made, given, refused, executed or done by the represented person and he were of full legal capacity.

1. A guardian is required to act according to his, her or their opinion of the best interests of the represented person, subject to any direction from the Tribunal: s 51 of the GA Act.
2. In relation to administration, s 64 of the GA Act provides:
   1. Making of administration order

(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

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 ­

as the case may require, of the estate of the person in respect of whom the application is made.

(2) Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.

(a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;

(b) may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given.

1. Section 68 of the GA Act provides who may be appointed as an administrator:
   1. Who may be appointed administrator

(1) An administrator (including a joint administrator) shall be ­

(a) an individual of or over the age of 18 years; or

who has consented to act and who, in the opinion of the State Administrative Tribunal ­

(c) will act in the best interests of the person in respect of whom the application is made; and

(d) is otherwise suitable to act as the administrator of the estate of that person.

(2) The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that ­

(a) there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or

(b) the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.

(3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible ­

(a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;

(c) whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.

(4) The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.

(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.

1. The authority of an administrator is specified in s 69, s 71 and s 72 of the GA Act as follows:
   1. Authority of administrator

(1) Subject to section 64(3)(a), the administrator has, or the joint administrators have, in respect of the estate of the represented person, such of the functions provided for by this Act as the State Administrative Tribunal vests in him or them, or directs him or them to perform, in the administration order.

(2) An administrator may on behalf of a represented person execute all such documents and do all such things as are necessary for the performance of the functions vested in him.

(3) An action taken, decision made, consent given or other thing done by an administrator in the performance of the functions vested in him has effect as if it had been taken, made, given or done by the represented person and he were of full legal capacity.

(4) Nothing in this Act vests the estate of a represented person in an administrator.

1. Authority which may be conferred on administrator

(1) The State Administrative Tribunal may, under section 69, vest plenary functions in the administrator of the estate of a represented person.

(2) Where plenary functions are vested in an administrator he may perform, or refrain from performing, in relation to the estate of the represented person, or any part of the estate, any function that the represented person could himself perform, or refrain from performing, if he were of full legal capacity.

(2a) Despite subsection (2), a plenary administrator may not make a will or other testamentary disposition on behalf of a represented person, but this subsection does not affect the operation of section 111A.

(3) Where the State Administrative Tribunal does not under section 69 vest plenary functions in an administrator, it may, under that section, authorise the administrator to perform any specified function, including one or more of those set out in Part A of Schedule 2.

(4) The State Administrative Tribunal may require a function to be performed by an administrator and may give directions as to the time, manner or circumstances of the performance.

(5) In exercising its jurisdiction under this Part the State Administrative Tribunal may take a liberal view of the best interests of the represented person as mentioned in section 4(2), and in particular may, if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the represented person.

1. Further provisions as to authority of administrators

(1) The State Administrative Tribunal may give any direction, make any order or do any other thing provided for in Part B of Schedule 2.

(2) Without limiting this section or section 71, the State Administrative Tribunal may make any other order (whether or not of the same nature as those so provided for) that it thinks necessary or expedient for the proper administration of the estate of the represented person.

(3) Notwithstanding this section or section 71, an administrator shall not without the authority of the State Administrative Tribunal under section 71(5) ­

(a) make a payment or disposition of a charitable, benevolent or ex gratia nature; or

(b) make a payment in respect of a debt or demand that the represented person is not obliged by law to pay.

1. Section 70 of the GA Act provides that an administrator shall act according to his opinion of the best interests of the represented person.
2. Section 77 of the GA Act provides:
   1. Represented person incapable of dealing with estate

(1) So long as there is in force a declaration by the State Administrative Tribunal under section 64(1) that a person is in need of an administrator of his estate, that person is ­

(a) incapable of entering into any contract or making any disposition in respect of his estate or any part thereof or interest therein; or

(b) subject to Part 9, appointing or conferring any power on an agent or attorney in respect thereof, except to the extent that the administrator, with the consent of the Tribunal, in writing authorises him to do so.

(2) Any money or property the subject of an attempted dealing by a represented person contrary to subsection (1) may be recovered by the administrator in any court of competent jurisdiction.

(3) Nothing in this section affects ­

(a) any contract for necessaries entered into by a represented person; or

(b) any contract or disposition by a represented person made for adequate consideration with, or in favour of, any other person who proves that he acted in good faith and was unaware that that person was a represented person; or

(c) anything done under a power of attorney by a person who proves that he acted in good faith and was unaware that the donor of the power was a represented person.

(4) Nothing in this section affects any legal incapacity attaching to a represented person by reason of infancy.

(5) For the purpose of this section the acceptance of payment of the whole or any part of a debt shall be deemed to be a disposition in respect of the estate.

1. An administrator is required to submit accounts to the Public Trustee as required by the Public Trustee unless exempted from doing so: s 80(1) of the GA Act. Upon examining an account that has been submitted by an administrator, the Public Trustee may allow the account, may disallow any amount paid or may determine that any amount or asset has been omitted, or that any loss has occurred: s 80(3) of the GA Act. In the event that the Public Trustee disallows any amount, determines that an amount or asset has been omitted or that any loss has occurred and determines that there has thereby been a loss to, or diminution of the estate, the administrator is liable to the estate for such loss or diminution unless relieved of liability by the Public Trustee: s 80(4) of the GA Act.
2. Having regard to the statutory provisions noted above, the essential questions for adjudication arising from the applications under s 40 of the GA Act can be summarised as follows:

(a) Does GS have any mental disability within the meaning of the GA Act?

(b) Starting with the relevant presumptions specified in s 4 of the GA Act, is the Tribunal nonetheless satisfied that GS is, because of a mental disability unable to make her own reasonable financial decisions?

(c) Starting with the relevant presumptions specified in s 4 of the GA Act, is the Tribunal nonetheless satisfied that GS is not able to make her own reasonable personal decisions, or is not able to look after her own health and safety, or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others?

(d) Is GS in need of an administrator and/or guardian?

(e) If the relevant declarations are able to be made, who should be appointed as GS's administrator and/or guardian, and in particular should MS be appointed as GS's administrator and the Public Advocate appointed as GS's guardian?

(f) If an administrator and/or guardian are to be appointed, what functions should they be given and should the appointment be made subject to any conditions or restrictions?

(g) If the Tribunal makes an administration order, is that order inconsistent with any existing enduring power of attorney made by GS? If it is the Tribunal must revoke that enduring power: s 108(1)(a) of the GA Act.

(h) Should the Tribunal make a declaration in relation to GS's capacity to vote: s 111 of the GA Act?

(i) If the Tribunal makes and administration order and/or a guardianship order, when should the order(s) be made subject to review: s 84 of the GA Act?

1. As was submitted by GS, GS's rights are directly in question in the s 40 of the GA Act applications: her right to make her own personal and/or financial decisions; her ability to enter into contracts and her right to vote in State elections. The substance of the application is not merely advisory.
2. The Tribunal is required to have regard to GS's views and wishes in making its determination, and is required to have GS's best interests as its primary concern. It might be said that these factors are, or are akin to, policy factors that the Tribunal is required by the GA Act to take into account when determining an application under s 40 of the GA Act. If that is the case, it might be that there is no exercise of judicial power, and therefore the third aspect of the tripartite inquiry suggested by their Honours Gaudron and Gummow JJ in Re McBain may mean that there is, in the end, no 'matter' for the purposes of the Constitution. Further support for the proposition that in order to be a justiciable controversy dealing with rights, duties or liabilities there must be the exercise of judicial power may be found in Precision Data at 188, albeit that case was not a decision in relation to whether there was a 'matter' within the meaning of the Constitution, where the Court stated:

True it is that the making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct is a classical instance of the exercise of judicial power. But the declarations for which s. 733 provides are not binding declarations of right in the sense in which that term is used, more particularly in the context of the exercise of judicial power. That is because the adjudication which the Panel under s. 733 is called upon to make is not an adjudication of a dispute about rights and obligations arising solely from the operation of the law on past events or conduct[.]

(Citations omitted)

1. Having said that, as stated above, in the context of a Tribunal, the question of whether a judicial power is being utilised is more fraught. In this context, it seems more helpful to focus on factors from the decided cases that seem to have been identified as making a matter something that is not a justiciable controversy rather than focusing on whether or not determination of the matter involves the exercise of judicial power.
2. In Precision Data at 189, the Court explained why the power of adjudication in question was not an exercise of judicial power:

It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.

Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power[.]

(Citations omitted)

1. The requirement of the Tribunal to, as far as possible, seek to obtain the views and wishes of the person concerned is, in the end, simply an inquiry in relation to certain facts. Although it is not expressly stated in s 4 of the GA Act, it is implicit that, if the Tribunal is able to obtain the views and wishes of the person concerned, then those views and wishes are relevant matters to be taken into account in reaching a determination. This is no more than an application of an aspect of the law to the ascertained facts.
2. In determining an application under s 40 of the GA Act, the Tribunal is required, because of s 4(2) of the GA Act, to have as its primary concern the best interests of any represented person, or person in respect of whom the application is made. In this case, GS is not a represented person within the meaning of the GA Act, but she is a person in respect of whom the s 40 application is made. While the ascertainment of what is in GS's best interests may have a subjective component, it is, I think, ultimately a question of fact based on the information before the Tribunal. The Tribunal is not satisfied that an application under s 40 of the GA Act involves questions of policy.
3. Having said that, with the second half of the quote from the Precision Data case cited above, it may be that the part of the application that concerns who should be appointed as a guardian and/or administrator is a determination that is not a justiciable controversy. This is because it is not until a person is appointed to the position of guardian and/or administrator that the duties or obligations that accompany those appointments come into being. On the other hand, consideration of whether a person is 'suitable' to be appointed as an administrator and/or guardian involves considerations as to the character, conduct and abilities of the person wishing to be appointed. This is perhaps not a clear adjudication of existing rights, duties or obligations, but it does have the nature of a controversy to some degree. In addition, to the extent that a person in the position of GS may have views or wishes about who should be appointed as administrator and/or guardian, determination by the Tribunal as to who is suitable to be appointed, and if more than one candidate is suitable, who should be appointed, is a determination that is capable of affecting GS's rights. At least from GS's perspective, and possibly also from the perspective of a person wishing to be appointed as an administrator and/or guardian, I do not think that the determination of who should be appointed can be viewed as one that only creates future rights, duties or obligations in the way discussed in the Precision Data case.
4. The Tribunal is satisfied that the questions that arise for determination in an application under s 40 of the GA Act amount to a 'matter' within the meaning of the Commonwealth Constitution because the questions that need to be determined involve the determination of GS's rights by application of law to ascertained facts. This application is a justiciable controversy within the meaning of the case law canvassed in these reasons above.
5. It remains to consider whether the 'matter' for determination in the s 40 application is one that is 'between residents of different States'.
6. A matter cannot be 'between residents of different States' if not all of the parties on one side are from the home State and all parties on the opposing side are from a different State: Watson and Godfrey v Cameron [1928] HCA 4; (1928) 40 CLR 446 (Watson and Godfrey). While her Honour Gaudron J in Rochford v Dayes [1989] HCA 17 appeared to have some doubt as to the correctness of the reasoning in Watson and Godfrey, she found herself bound to follow it. I do not think it is appropriate for the Tribunal to seek to take a different view.
7. In this case MS is the applicant for an administrator and guardian to be appointed and in addition seeks appointment of himself as administrator. GS opposes the application and opposes the appointment of MS as her administrator. The Public Advocate and the Public Trustee are also parties to the s 40 of the GA Act application as both are automatically parties to an application for guardianship and administration respectively as they are required to be given notice to any such application: s 3 and s41 of the GA Act. However, although there is potential for the Public Advocate or the Public Trustee to be appointed guardian and administrator of GS, they do not advocate for the appointment of guardian and/or administrator in their own interests and they do not put themselves forward for appointment, but remain willing to be appointed should that become necessary.
8. The Tribunal is not persuaded that in the context of an application under s 40 of the GA Act, the fact that various people are parties to the proceeding is the correct starting point. As a 'matter' is not synonymous with a legal proceeding, it follows that the fact that a resident of a different State is a 'party' to a legal proceeding does not necessarily mean that the 'matter' is 'between residents of different States'. In Crouch v Commissioner for Railways (Queensland) [1985] HCA 69; (1985) 159 CLR 22 at 37 their Honours Mason, Wilson, Brennan, Deane and Dawson JJ stated:

When the word 'matter' is used in Ch. III of the Constitution in its ordinary prima facie sense of the subject matter for determination in a legal proceeding rather than the legal proceeding itself, it focuses attention upon the substance of the dispute. ... The consequence is that the question whether a particular "matter" lies within the original jurisdiction of the Court under s. 75(iv) as a matter '[b]etween States' or as a matter 'between a State and a resident of another State' falls to be determined by reference to the substantial subject matter of the controversy and not be reference only to the form in which the legal proceedings involving it happen to be framed[.]

1. In relation to all of the questions to be determined in an application under s 40 of the GA Act, other than the question of who should be appointed as an administrator and/or guardian, while MS must be accorded procedural fairness, and in particular has a right to be given an opportunity to be heard before the Tribunal determines the application, there is no right, duty or obligation of MS's that is before the Tribunal. MS may have a personal interest in the outcome of the Tribunal's decision, and has a view as to what he says the Tribunal should determine, nonetheless the substance of the matters to be determined legally only affect GS.
2. However, in this case MS does propose himself as administrator for GS. Certainly once appointed as an administrator, a person has obligations and powers under the GA Act, but these do not come into existence until after the Tribunal has made a determination that a person is to be so appointed. However, determination of whether a person should be appointed as an administrator requires the Tribunal to determine whether the proposed administrator:

(a) is an individual of or over 18 years of age or a corporate trustee;

(b) has consented to act as administrator.

1. The Tribunal is also required to form an opinion as to whether the person:

(a) will act in the best interests of the person the subject of the application, in this case GS; and

(b) is otherwise suitable to act as guardian.

1. In addition, the Tribunal is required to have regard to GS's views and wishes in relation to who should be appointed. In this case, GS opposes MS's appointment as her administrator.
2. While it is not of the same type as the usual dispute between individuals, nonetheless the Tribunal is persuaded that determination of these questions does involve a controversy between GS and MS in this case, at least in relation to administration. If MS was not seeking to be appointed as administrator, the Tribunal would take a different view. So too, the case may be different in circumstances where the represented person is not opposed to the interstate person's application for appointment as administrator and/or guardian.
3. The fact that MS is the applicant does not, in itself, make the 'matter' 'between' MS and GS. The GA Act allows 'any person' to be an applicant under s 40 of the GA Act. The person need not have any legal interest or standing in order to make the application. Once an application has been made to the Tribunal, an applicant needs the leave of the Tribunal to withdraw the application: s 46(1) of the SAT Act. Where the Tribunal is not satisfied that withdrawal of an application would be in the proposed represented person's best interests, the Tribunal's practice is to request the Public Advocate to consent to be substituted as the applicant and otherwise refuses leave to withdraw the application. This is because the Tribunal is required to have as its primary concern in such a proceeding the best interests of GS: s 4 of the GA Act.
4. MS has a right to a review of the Tribunal's decision if he is aggrieved by it, but that, of itself, does not render the application a justiciable controversy from MS's perspective. This is because, unusually in terms of rights of appeal or review, the GA Act effectively allows any person to whom notice of the proceeding has been given and any person who gives evidence in a proceeding to become a party (s 3 of the GA Act). All of those parties gain the right of review under s 17A of the GA Act.
5. As indicated above, to the extent that a person nominates himself or herself as administrator and/or guardian for a proposed represented person, should he or she be appointed he or she will, from that time forward, have obligations to GS and, in relation to administration, to the Public Trustee. At the time of any review of an administration order where an interstate resident has been appointed as administrator there will be a 'matter' 'between residents of different States'. At that point in time the Tribunal will be called upon to determine whether the administrator and/or guardian had exercised the obligations imposed upon him or her by the appointment in order to determine whether he or she should continue to be appointed. At that time, there may be a justiciable controversy from the interstate administrator and/or guardian's perspective as well as from the represented person's, particularly if the represented person opposes the appointment of an administrator and/or guardian at all or opposes the reappointment of the interstate administrator and/or guardian.
6. RS and SG support GS in opposing the appointment of an administrator and/or guardian for GS. However, although they have the right to be heard, they have no interest, obligation or duty that is subject to determination in the proceeding. The Tribunal is satisfied that, for the purposes of determining whether the 'matter' is 'between residents of different States' the 'matter' the subject of the administration application is substantially 'between' GS and MS. The 'matter' is between these two in the sense identified in the Watson and Godfrey decision. The guardianship application is a controversy that potentially affects GS's rights and interests but is not 'between' her and any resident of a different State.
7. Therefore, in the circumstances of this case, the Tribunal is persuaded that there is a 'matter' 'between residents of different States' in relation to the s 40 of the GA Act application for administration. The Tribunal is not persuaded that there is a 'matter' 'between' GS and MS in relation to the guardianship application. MS has no legal interest, right or duty to be determined in that application in this case, despite the fact that he is the applicant.

(1) A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order ­

(a) requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power[.]

1. Section 4 of the GA Act, quoted above, also applies to applications under s 109(1)(a) of the GA Act. However, it is not clear whether the Tribunal is required to have, in proceedings of this type, GS's best interests as its primary concern. This is because s 4(2) of the GA Act requires this in relation to any 'represented person' or 'a person in respect of whom an application is made'. As indicated above, GS is not a 'represented person' within the meaning of the GA Act at this point in time. Although the application under s 109(1)(a) is of interest to her, it is not an application in respect of her. Although the records and accounts that are sought to be produced under an application under s 109(1)(a) of the GA Act may reveal information about GS's estate, and in relation to RS's actions while acting as GS's attorney, the Tribunal is not persuaded that this makes such an application in respect of GS. If the documents were to reveal information that showed GS's estate had been adversely impacted by the actions of the attorney, there may be a basis for some other action to be instituted, and that action may well be in respect of GS's estate. Whether such application would, because it was in respect of GS's estate, be in respect of GS within the meaning of s 4(2) of the GA Act is unnecessary to decide in this application.
2. Despite the applicant's submission to the contrary, the Tribunal is not persuaded that it is possible to sever the requirement to serve on the applicant documents lodged in accordance with an order made under s 109(1)(a) of the GA Act: NM and SGF [2014] WASAT 103 at [12] to [14].
3. The plain reading of the words and the use of 'and' indicate that a single power is given to the Tribunal to order the donee file and serve documents. It was submitted that the purpose of s 109(1)(a) of the GA Act is to facilitate the Tribunal having relevant information before it in order to determine whether there is a need to appoint an administrator in the context where there is an enduring power of attorney in place. The Tribunal does not accept that this is the purpose of s 109(1)(a) of the GA Act. If the Tribunal needs information or documents to be lodged in order to determine an application, it can use the directions powers in s 34 and s 35 of the SAT Act.
4. As was said in KS [2008] WASAT 29 at [26] '[t]he Parliament has given the Tribunal a general supervisory jurisdiction in respect of enduring powers of attorney.' Section 107(1)(b) of the GA Act provides, amongst other things, that the donee of an enduring power of attorney must keep and preserve accurate records and accounts of all dealings and transactions made under the power. Failure to do so is an offence punishable by a fine. In addition, where records and accounts have been filed and served pursuant to an order made under s 109(1)(a), the Tribunal may make an order requiring those records and accounts to be audited: s 109(1)(b) of the GA Act. Section 107(1)(a) of the GA Act provides that the donee must exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure. Thus it can be seen that the powers in s 109(1)(a) and s 109(1)(b) of the GA Act are referable to obligations imposed on a donee by s 107(1) of the GA Act.
5. The Tribunal is also not persuaded that it is appropriate or permissible to apply principles of construction of contracts to the interpretation of legislation.
6. In any event, as MS is the applicant in the s 109(1)(a) of the GA Act application, the question of whether the Tribunal is able to order filing of records and accounts without requiring the serving of those documents on the applicant is probably moot.
7. The questions for determination in the application under s 109(1)(a) of the GA Act are as follows.

(a) Is MS, in the opinion of the Tribunal, a person who has a proper interest in the matter?

(b) Did the donee carry out any transactions under the authority of the enduring power of attorney?

(c) Are there any records and/or accounts held by the donee in relation to those transactions?

(d) Should the Tribunal exercise its discretion to order that the donee file with the Tribunal and serve on the applicant copies of those records and/or accounts?

1. On the face of it, those questions do not obviously require the determination of any person's rights, duties or obligations. However, if a person were to resist the filing and serving of records and accounts on the basis that the documents were subject to privilege, it would seem that the question of whether the privilege exists constitutes a 'matter': The Commonwealth of Australia & Ors v The Hospital Contribution Fund of Australia & Ors [1982] HCA 13; (1981) 150 CLR 49 (Hospital Contribution Fund).
2. As was indicated above, a determination that a donee is required to file and serve records and accounts could provide evidence that the donee has breached one or more obligations, which in turn could expose the attorney to prosecution proceedings. Looked at in this way, an order under s 109(1)(a) of the GA Act potentially affects the rights of the attorney by forcing the attorney to produce documents he or she might otherwise wish to not produce. If the applicant and the donee were residents of different States, there may be a 'matter' 'between residents of different States'.
3. From the donor's perspective, the donor of the enduring power of attorney no doubt has a right to have the donee produce records and accounts of any transactions carried out under the power. Should the donee refuse to do so, the donor may have an interest in obtaining an order from the Tribunal requiring the lodging and serving of the documents. If the donee objects to the production of the records and accounts, there may be a 'matter' between the represented person and the donee.
4. A donor may, at the time an order under s 109(1)(a) of the GA Act is being sought, lack capacity and someone may seek to protect the donor by seeking knowledge of transactions carried out by the donee with a view to attempting to restore the donor's estate. In those circumstances, it seems likely there would be a 'matter' between the donor and the donee of the enduring power of attorney. However, does that 'matter' arise at the time of the application under s 109(1)(a) of the GA Act, or after a determination has been made? In this case, MS does allege that RS has failed to properly maintain GS's estate and for that reason he submits that an administrator should be appointed.
5. In this case MS is a joint and several attorney. Therefore he, as well as RS, had an obligation whilst appointed to exercise the powers of attorney with reasonable diligence to protect the interests of the donor and to keep and preserve records and accounts of all dealings and transactions made under the power: s 107(1)(a) and (b) of the GA Act. As MS has these obligations, the application under s 109(1)(a) of the GA Act could be a means by which he ensures his obligations are fulfilled. However, MS does not assert that this is the reason for the application in this case. As indicated above, MS asserts that the application is solely for the purposes of ensuring that relevant information is before the Tribunal so that it can properly determine the s 40 of the GA Act application in relation to administration.
6. There is also GS's right to privacy and to control who may have access to financial information concerning her estate. GS opposes the application in this case. Presumably this means she does not wish the Tribunal or MS to have access to the information in question. MS is the person who made the application and is the only person who can seek to withdraw the application. If he does not, the Tribunal is required to determine his application. As the Tribunal is not required to have GS's best interests as its primary concern in an application under s 109(1)(a) of the GA Act, there seems no basis, in circumstances where the donee has not been found to lack capacity and objects to the application, why the Tribunal would not allow an applicant to withdraw the application. MS is also the person who will receive copies of the records and accounts if the Tribunal determines the application in his favour.
7. Subject to the question of whether the 'matter' is 'between residents of different States as explained in the Watson and Godfrey decision, the Tribunal is persuaded that there is in substance a 'matter' between MS and GS in the s 109(1)(a) of the GA Act application in this case.
8. The substantive parties to this application are MS as applicant and joint and several attorney, GS as the donee of the enduring power and RS as joint and several attorney and person who the application seeks to make produce documents. While there are other named 'parties' to the application, they do not have any substantive interest in the application and as such the Tribunal considers they are not substantive parties for the purposes of the jurisdictional question. RS and GS, both residents of Western Australia both oppose the application and MS, resident of New South Wales, applies for the orders under s 109(1)(a) of the GA Act. This is consistent with the 'matter' being 'between' residents of different States as explained in the Watson and Godfrey decision. Therefore, the Tribunal does not have jurisdiction to determine the application made under s 109(1)(a) of the GA Act in this instance.
9. MS asked the Tribunal to determine whether, if the application under s 109(1)(a) of the GA Act is outside of the Tribunal's jurisdiction, MS would be able to seek a direction, or invite the Tribunal to of its own initiative to make a direction requiring RS to produce documents under s 34 of the SAT Act. Given the finding made just above, it is therefore necessary to deal with this question.
10. If MS applies to the Tribunal for a direction that RS produce documents that reveal information about GS's estate to the Tribunal, where GS opposes any such direction being made, it might be argued that there is no separate 'matter', but rather an application for a procedural step within the wider 'matter' of the s 40 of the GA Act application. However, having regard to the decision in the Hospital Contribution Fund case, the Tribunal is not satisfied that this conclusion is open to the Tribunal.
11. If the application for a direction under s 34 of the SAT Act is a 'matter', the 'matter' in substance is whether RS should be required to produce documents, which potentially affects GS's rights to not have her financial information revealed in the same way that that the application under s109(1)(a) of the GA Act does. This is a 'matter' between MS and GS. Accordingly the Tribunal does not have the jurisdiction to make such a direction at the request of MS.
12. In the circumstances where the enduring power of attorney appointing RS (together with MS) has now been revoked, the Tribunal is of the view that the conduct of RS in using the enduring power of attorney is not relevant to the question of whether there is a less restrictive alternative to the appointment of an administrator (assuming the questions in relation to mental disability and capacity had been determined against GS). It is now whether the enduring power of attorney appointing SG as GS's attorney is a less restrictive alternative to the appointment of an administrator that is a question that the Tribunal has to determine in the s 40 of the GA Act proceedings. On that basis, the Tribunal has no basis, and would not, of its own initiative direct RS to produce records and accounts of transactions he carried out under the previous enduring power of attorney.

The Tribunal has determined that it does have jurisdiction to determine MS's application for the appointment of a guardian for GS under s 40 of the Guardianship and Administration Act 1990 (WA) but that it does not have jurisdiction to determine MS's application for the appointment of administrator for GS's estate, so long as MS seeks appointment as the administrator. The Tribunal has also determined that it does not have jurisdiction to determine MS's application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA). Accordingly, the Tribunal orders:

1. Matter No GAA 3092/2017, which is MS's application made under s 40 of the Guardianship and Administration Act 1990 (WA) for the appointment of and administrator and a guardian for GS is adjourned to a directions hearing on a date to be fixed.
2. The parties have until close of business Wednesday 8 August 2018 to provide their unavailable dates for the directions hearing.

The Tribunal has determined that it does have jurisdiction to determine MS's application for the appointment of a guardian for GS under s 40 of the Guardianship and Administration Act 1990 (WA) but that it does not have jurisdiction to determine MS's application for the appointment of administrator for GS's estate, so long as MS seeks appointment as the administrator. The Tribunal has also determined that it does not have jurisdiction to determine MS's application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA). Accordingly, the Tribunal orders:

1. Matter No GAA 3093/2017, which is MS's application made under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) is dismissed.
2. The question of costs in relation to Matter No GAA 3093/2017 is reserved pending the resolution of Matter No GAA 3092/2017 so that any costs applications in both matters may be heard and determined together.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.