Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; NSW v Burns

South Australian Civil and Administrative Tribunal Act 2013 s 8, s 38B, s 53

Guardianship and Administration Act 1993

Advance Care Directives Act 2013

Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; NSW v Burns [2018] HCA 15

Johnson v Johnson; Gatsby v Gatsby [2018] NSWCATAP 45

Raschke v Firinauskas [2018] SACAT 19

RE XHQ [2018] SACAT 11

This is an edited version of the Tribunal's statement of reasons issued pursuant to s 81 of the Guardianship and Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Application for referral to Magistrates Court - Refused

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 38B

1. This is an application by XKI for an Administration Order and Guardianship Order under the Guardianship and Administration Act 1993 ('the G&A Act'). XKI proposes himself and his mother SEA as joint guardians and administrators. I gave leave at the preliminary hearing for the Administration Order application to be amended to include SEA as a proposed joint administrator.
2. The applicant (joined by SEA and XEL, who I find to both have a proper interest in the proceedings) brought an application for the referral of this matter by the Tribunal to the Magistrates Court under s 38B of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act). The reason stated for the referral is that CQG, the subject of the proceedings, resides in South Australia (as do his son XKI and his wife SEA) but his other son XEL resides in New South Wales. XEL is said to be in dispute with his brother and his mother regarding the welfare and the personal and financial interests of CQG.
3. On 18 April 2018, the High Court delivered a decision in the matter of Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; NSW v Burns [2018] HCA 15. In summary, that case involved a dispute between a person who was resident in one state and others who were residents in other states. The High Court decided that, because of certain provisions in The Constitution, only a court of the state which was exercising federal jurisdiction could deal with a dispute of the kind considered in that case.
4. In the recent decision of Raschke v Firinauskas [2018] SACAT 19 the President of SACAT, Justice Hughes, found that the decision of Burns v Corbett applies to residential tenancy disputes in SACAT and as a result, because SACAT is a tribunal and not a court of the state, it cannot deal with tenancy disputes where one party is resident interstate.
5. Part of the analysis in that case involved the question of whether the Tribunal, in determining those proceedings, was exercising judicial power or administrative authority. Her Honour found that if the Tribunal is exercising administrative authority (in relation to a jurisdiction that has been conferred on SACAT) then the federal diversity jurisdiction is not enlivened and the Tribunal has jurisdiction to deal with the matter. Her Honour stated that in the guardianship and administration jurisdiction of SACAT, where the Tribunal is 'acting in a manner that has an inquisitorial flavour and will actively utilise its ability to inform itself', the Tribunal's power is more accurately characterised as an exercise of administrative power.[1]
6. I note further that an application brought under the G&A Act is not an inter partes dispute. I refer to the decision of RE XHQ [2018] SACAT 11, where Executive Senior Member Stevens stated:

The nature of the guardianship jurisdiction is unique. It is not an inter partes jurisdiction. The purpose of the jurisdiction is to protect persons who have a 'mental incapacity'. The focus of the jurisdiction is not on the rights of interested persons, but on the rights and interests of the (proposed) protected person.

Others, such as family members, may have an interest in the matter but the Tribunal is not determining the relevant issues as between the protected person and others. The nature of the jurisdiction is inquisitorial and protective.

The applicant for an administration order (or a guardianship order) is not seeking to enforce any existing legal right, but rather to create a new legal right or status.[2]

1. I am therefore satisfied that when the Tribunal is considering an application relating to an inquiry about the circumstances of a person in order to make protective orders under the G&A Act the Tribunal is exercising administrative power. All legal counsel acting for the applicant and the interested persons eventually accepted this position during argument.
2. In addition, the parties to the current application are the applicant and the person who is subject of the proceedings.[3] I refused a belated application during the course of the hearing by XEL's counsel for him to be joined as a party to the proceedings. I find that there is no proper basis to join any 'interested person' as a party to these proceedings. Bearing in mind the objects and principles of the Tribunal under s 8 of the SACAT Act and the nature of these proceedings, it is appropriate to limit the number of parties in these proceedings in order to avoid unnecessary pre-hearing legal applications and to enable such matters to progress as expeditiously as possible in the interests of the subject person. Further, it is the practice of the Tribunal to allow 'interested persons' in these proceedings the opportunity to participate in the hearing to the degree necessary for the Tribunal to properly inform itself about the subject person's circumstances, have access to relevant documentation (as determined appropriate by the Tribunal), call evidence (if appropriate) and, with the permission of the Tribunal, be represented. SEA's counsel did not make an application for joinder as a party.
3. Even if I had joined XEL as a party to the proceedings, I note that, because of the nature of this application, which is not inter partes, the subject of the proceedings is not a 'dispute between residents of different states'. The subject of the proceedings is an inquiry into the circumstances of the person resident in South Australia.
4. In terms of the other issues enlivening the jurisdiction of SACAT in this matter I find that CQG is now a resident of South Australia. I also find that he currently has a 'mental incapacity' as defined under the G&A Act. There was no dispute about these issues.
5. For the reasons outlined above I find that the Tribunal does have jurisdiction to determine the application because the determination involves an application under a South Australian Act of Parliament where jurisdiction has been conferred on the Tribunal and where the subject matter of the application does not involve the exercise of federal diversity jurisdiction.
6. It is not necessary to make an order for the proceedings for this application to be transferred to the Magistrates Court.

1. The proceedings for this application will not be transferred to the Magistrates Court.
2. The Tribunal directs that the application is to be listed for a full hearing on a date to be determined in the week commencing 1 October 2018.

[1] Raschke v Firinauskas [2018] SACAT 19 [46].

[2] RE XHQ [2018] SACAT 11, [65]-[67].The Tribunal notes but respectfully disagrees with the obiter comments of the New South Wales Civil and Administrative Tribunal Appeals Panel in the matter of Johnson v Johnson; Gatsby v Gatsby [2018] NSWCATAP 45, [214]-[215] where the Appeals Panel expressed the view that the exercise of power under the Guardianship Act 1987 (NSW) can be seen as involving the exercise of judicial power.