1. The application to transfer the proceedings (Application to Review Enduring Power of Attorney) to the Magistrate's Court pursuant to s 131 (2) of the Tasmanian Civil and Administrative Tribunal Act 2020 is dismissed.
2. A directions hearing is to be listed within 14 days of the date of this decision on a date to be fixed by the Registrar.

Enduring power of attorney - Application to review - Application to transfer proceedings to Magistrate's Court - Whether Tribunal exercises federal jurisdiction under Part 9 of TASCAT Act when determines applications for review under POA Act - Whether Tribunal exercises judicial or administrative power when determines applications for review under POA Act

Commonwealth Constitution, ss 75, 76;

Guardianship and Administration Act 1995, Part 7;

Partition Act 1869;

Powers of Attorney Act 2000, ss 4, 5, 16, 30, 31, 32-32AD, 33, 35, Sch 3;

Tasmanian Civil and Administrative Tribunal Act 2020, ss 44, 68, 79, 88, 98, 120, 129, 131, Sch 3;

Tasmanian Civil and Administrative Tribunal Rules 2021, r 7.

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

C v W [2015] NSWSC 1774;

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16;

EEC (Review of Enduring Power of Attorney) [2021] TASGAB 18;

German v State Trustees Ltd [2023] VSC 7;

GS v MS [2019] WASC 255;

JK (Request to Withdraw Application) [2022] TASCAT 21;

K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4;

Palmer v Ayers; Ferguson v Ayers (2017) 259 CLR 478; [2017] HCA 5;

Precision Data Holdings Ltd v Wills [1991] HCA 58;

Public Guardian v Guardianship Administration Board [2011] TASSC 31;

R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10;

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361;

Smith v Smith [2017] NSWSC 408;

The State of Tasmania (Department of Health & Human Services) v M; M v The State of Tasmania (Department of Health & Human Services) [2018] TASWRCT 24;

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191.

Lindsay J, "A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Capacity for Self-Management, Rights, Duties and Conflicts of Interest", Supreme Court of NSW Speeches, 26 October 2018.

The decision has been anonymised for the purpose of publication.

1. This decision considers whether the Tribunal exercises federal jurisdiction, as that term is defined in s 129(1) of the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), when it determines an application to review an enduring power of attorney (EPOA) under the Powers of Attorney Act 2000 (POA Act). If the Tribunal does not have jurisdiction to determine the application because the determination may involve the exercise of federal jurisdiction, or there is some doubt about this issue, then as long as the Tribunal would otherwise have had jurisdiction enabling it to determine the application, it may order that the proceedings be transferred to the Magistrates Court (TASCAT Act, s 131(2))).
2. Under s 129(1) of the TASCAT Act, "federal jurisdiction" is defined as "jurisdiction of the kind referred to in section 75 or 76 of the Constitution of the Commonwealth".
3. A "matter" under s 75 of the Constitution is the subject matter for determination in a legal proceeding. The "matters" referred to in s 75 include matters "between residents of different States" (s 75(iv)) and concern the exercise of judicial power.
4. In the current proceedings, although CX (the donor) lived in Tasmania when he made the EPOA, he subsequently left Tasmania and now lives in Queensland where IH (the attorney) also lives. The applicant for review of the EPOA, IX (the applicant), continues to live in Tasmania.
5. The attorney has submitted that the application for review of the EPOA involves a matter between residents of different states and that the Tribunal exercises judicial power when determining an application to review the making of an EPOA. As a consequence, according to the attorney, the Tribunal would be exercising federal jurisdiction when determining the application, and it should order that the proceedings on the application be transferred to the Magistrates Court.
6. The critical issue for consideration is whether or not the Tribunal exercises judicial power when determining an application under s 33 of the POA Act. If it does not, then it is not exercising federal jurisdiction and the Tribunal has jurisdiction regardless of where parties are located.
7. The former Tasmanian Guardianship and Administration Board in EEC (Review of Enduring Power of Attorney) [2021] TASGAB 18 (EEC) determined that when exercising power under s 33(1) of the POA Act, the Board was not exercising judicial power and s 75(iv) of the Constitution did not have application. The Board therefore had jurisdiction to determine the application regardless of the residence or status of parties to the application ([31]).
8. EEC was determined prior to the coming into effect of the TASCAT Act. The functions and powers of the Tribunal under the POA Act are now allocated to the Protective Division of the Tribunal (TASCAT Act, Sch 3, Part 3, cl 1(1)(e)).
9. In the current proceedings, written submissions about the jurisdictional issue were filed and served by the attorney and the applicant.
10. A separate representative was appointed for the donor. The separate representative chose not to make written or oral submissions about this issue.
11. A hearing was listed before me on 20 June 2025. I reserved my decision at the conclusion of the hearing.
12. I have now determined that the Tribunal does not exercise federal jurisdiction when determining an application to review either the making or the operation of an enduring power of attorney under s 33 of the POA Act. This is because the Tribunal exercises administrative, non-judicial power when determining such applications. Accordingly, s131(2) of the TASCAT Act is not engaged. These are my reasons for that determination.

1. The donor made an EPOA on 9 September 2022 that appointed one of his daughters, IH, as his attorney. The attorney, who was visiting her father in Tasmania from Queensland where she lives, accepted her appointment on the same date. The EPOA was registered with the Recorder of Titles on 21 September 2022 in accordance with Division 2 of the POA Act.
2. At the time that he made the EPOA, the donor lived in Tasmania at the property he shared with another daughter, the applicant. In addition to residing at the property with the applicant, he was also at the time a joint owner of that property as a joint tenant with the applicant. A short time after the making of the EPOA, the attorney returned to Queensland along with the donor. The donor has not returned to Tasmania since.
3. The joint tenancy was subsequently severed by the attorney on behalf of the donor. The donor and applicant are now joint registered proprietors of the property as tenants in common in equal shares. The property is the subject of proceedings under the Partition Act 1869 in the Supreme Court of Tasmania. Those proceedings have been adjourned pending the outcome of the application for review of the EPOA at the Tribunal.
4. On 21 March 2025, the applicant made an application to the Tribunal seeking review of the EPOA under s 33 of the POA Act and a declaration that the EPOA is invalid.

Federal Jurisdiction Proceedings - Part 9 of the TASCAT Act

1. The attorney submitted that the Tribunal does not have jurisdiction under s 33 of the POA Act to determine the application for review of the EPOA, or, in the alternative, there is some doubt as to whether it has such jurisdiction. This is because, according to the attorney, the Tribunal would be exercising judicial power in the proceedings. As the proceedings involve a dispute between residents' of different States, the Tribunal is prohibited from exercising jurisdiction due to s 75 of the Commonwealth Constitution. In these circumstances, the Tribunal should order that the proceedings be transferred to the Magistrates Court pursuant to s 131(2) of the TASCAT Act (federal jurisdiction issue).
2. Part 9 of the TASCAT Act deals with "Federal Jurisdiction Proceedings". It was introduced following the decision in Burns v Corbett [2018] HCA 15 which established that:

a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution, judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution (Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [1]).

3. "Federal jurisdiction" under Part 9 is defined as "jurisdiction of the kind referred to in section 75 or 76 of the Constitution of the Commonwealth" (s 129(1)).
4. A "matter" under s 75 of the Constitution is the subject matter for determination in a legal proceeding (Palmer v Ayers: Ferguson v Ayers [2017] HCA 5; (2017) 259 CLR 478 at [26]; [2017] HCA 5). Relevant to the current proceedings, "matters" referred to in s 75 include matters "between residents of different States" (s 75(iv)). Sections 75 and 76 sit within Chapter III of the Constitution which is concerned only with judicial power and not with 'administrative matters' or non-judicial power (R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10).
5. Section 131 of the TASCAT Act provides as follows:

Transfer to Magistrates Court of applications involving federal jurisdiction > > (1) If a person has standing to make an application to the Tribunal in the exercise of its original jurisdiction under section 72 or its review jurisdiction under section 74 , the application may, if the Tribunal orders under subsection (2) that proceedings on the application are to be transferred to the Magistrates Court, be determined by the Magistrates Court in accordance with this Part instead of the Tribunal. > > (2) If, following an application made to the Tribunal in the manner and form required under this Act for the kind of application concerned, the Tribunal considers that - > > (a) it does not have, or there is some doubt as to whether it has, jurisdiction to determine the application because its determination may involve the exercise of federal jurisdiction; and > > (b) the Tribunal would otherwise have had jurisdiction enabling it to determine the application - > > the Tribunal may order that proceedings on the application be transferred to the Magistrates Court.

6. Section 131(2)(a) of the TASCAT Act will therefore only be engaged in these proceedings if TASCAT exercises federal jurisdiction as defined in s 129(1) of the TASCAT Act when it determines an application for review of the EPOA.

Review of enduring powers of attorney - Statutory framework

1. The Tribunal's jurisdiction in relation to reviews of enduring powers of attorney is governed by three pieces of legislation: the POA Act, the TASCAT Act and the Guardianship and Administration Act 1995 (GAA Act).
2. Hearings conducted to review an EPOA are held in accordance with the TASCAT Act (POA Act, s 33(1)).
3. Under Schedule 3 of the TASCAT Act, the functions and powers of the Tribunal in relation to the POA Act are allocated to the Guardianship stream of the Protective Division of the Tribunal (Schedule 3, cl1(1)(e) and cl3(c)).
4. Part 4 of the POA Act contains the provisions relating to enduring powers of attorney and includes, relevantly, provisions relating to the following:
   • the creation and effect of EPOAs (s 30)
   • scope of authority of an attorney under an EPOA (s31)
   • the duties of an attorney under an EPOA; the right of an attorney to information; the circumstances in which there is power to take action to the benefit of an attorney under an EPOA; transactions that may involve conflict of duty; the obligation on an attorney as to the keeping of records (ss 32-32AD)
   • the ability of an attorney to apply for advice or direction by TASCAT on any matter relating to the scope of the attorney's appointment or the exercise of power by the attorney under the EPOA (s 35)
5. Section 33 of the POA Act sets out the power of the Tribunal to make orders in respect of enduring powers of attorney:

33. Power of Tribunal to make orders in respect of enduring power of attorney > > (1AA) In this section, a reference to an enduring power of attorney includes a reference to a purported enduring power of attorney. > > (1) The Tribunal may - > > (a) of its own motion; or > > (b) on application by an attorney; or > > (c) on application by or on behalf of a donor; or > > (d) on application by any other person who the Tribunal believes has a proper interest in the matter - > > hold a hearing in accordance with the Tasmanian Civil and Administrative Tribunal Act 2020 to review an enduring power of attorney. > > (1A) The Tribunal may dismiss an application for review if it is of the opinion that the application is frivolous, vexatious or lacking in substance. > > (1B) Without limiting the matters to which the Tribunal may have regard in relation to a review in respect of a donor, the Tribunal may open and read any paper or writing which purports to be, or is alleged to be, the will of the donor. > > (2) On the review, the Tribunal may, by order - > > (a) vary a term of, or a power conferred by, the enduring power of attorney; or > > (b) appoint a substitute attorney; or > > (c) appoint an administrator of the estate of the donor if he or she is over the age of 18 years; or > > (d) declare that the donor did or did not have mental capacity to make a valid enduring power of attorney or to revoke an enduring power of attorney; or > > (e) declare that the enduring power of attorney or the revocation of it by the donor is invalid if the Tribunal is satisfied that - > > (i) the donor did not have the mental capacity to make the power or the revocation, respectively; or > > (ii) the power or the revocation, respectively, does not comply with the other requirements of this Act; or > > (iii) the power or the revocation, respectively, is invalid because the donor was induced to make it by dishonesty or undue influence or invalid for any other reason; or > > (f) revoke the enduring power of attorney and, if the donor is over the age of 18 years and the Tribunal thinks fit, appoint an administrator of his or her estate; or > > (g) make such other order as to the exercise of the power, or the construction of its terms, as the Tribunal thinks fit.

6. In relation to the Tribunal's power under ss 33(2)(f) to revoke an EPOA and appoint an administrator of the estate, s 33(3) provides as follows:

(3) An appointment of a person as administrator under subsection (2)(f) has the same effect as if it had been made under Part 7 of the Guardianship and Administration Act 1995 .

7. Part 7 of the GAA Act contains the provisions concerning the Tribunal's power to make administration orders.
8. It is also relevant to note the Tribunal's processes when determining matters under the POA Act.
9. When it exercises functions and powers in the Guardianship stream, including under the POA Act, the Tribunal must under Schedule 3 to the TASCAT Act be constituted by the President (cl 4(a)), by one or more Deputy Presidents assigned to the Division (cl 4(b)), by a legally qualified member assigned to the stream (cl 4(c)), or by one of those same office holders as well as one or more members who are assigned to the stream (cl 4(d)). Senior and ordinary members assigned to the Guardianship stream must be either an Australian lawyer of not less than 5 years standing as an Australian legal practitioner or have:

extensive knowledge, expertise or experience relating to a type of matter in relation to which functions or powers may be performed or exercised by the Tribunal and, where the Governor thinks it required holds a particular qualification or an authority to engage in a profession that relates to that type of matter

1. As a matter of practice, the Tribunal is constituted in the manner set out in cl 4(d) of Schedule 3 when determining matters under the POA Act. In these matters, the Tribunal, sits as a three-member panel with the two other members being either a senior member or an ordinary member of the Tribunal. As a consequence, the Tribunal will be constituted, as a matter of practice, by three members, potentially one or two of whom have qualifications other than legal qualifications. When sitting as a three-member panel, a question that the panel is required to decide is resolved according to the opinion of the majority of them (TASCAT, s 68(1)).
2. The principles governing Tribunal proceedings, including in the Guardianship stream of the Protective Division, are set out in in the TASCAT Act. The Tribunal is not bound by the rules of evidence and may inform itself as it considers fit (s 79(b)(i) and (iii)). The procedure of the Tribunal is to be conducted with a minimum of formality and according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms (s 79(a) and (c)). The Tribunal may adopt, in its discretion as it considers appropriate, any findings, decision or judgement of a court or other tribunal, insofar as may be relevant to the proceedings (s 79(b)(ii)). Parties bear their own costs in the proceedings in the Guardianship stream (s 120(1) and (3)).
3. Parties to proceedings for the purposes of an application under the Powers of Attorney Act in relation to the grant of an enduring power of attorney are the donor, attorney, applicant, Public Guardian, and Public Trustee (Tasmanian Civil and Administrative Tribunal Rules 2021 (TASCAT Rules), r 7(5)). Parties to proceedings, including in the Guardianship stream, are entitled to be represented by an Australian legal practitioner without the leave of the Tribunal (s 98(1)).

Exercise of judicial power vs administrative power

1. The critical issue for consideration is whether or not the exercise of the Tribunal's functions in these proceedings will involve an exercise of judicial power. Unless the Tribunal will be exercising judicial power when determining the application under s 33 of the Powers of Attorney Act, then the Tribunal is not exercising federal jurisdiction as that term is defined in s 129(1) of the TASCAT Act. Consequently s 131 of the TASCAT Act will not be engaged. In this circumstance, the Tribunal would have jurisdiction to determine the application regardless of where the parties are located.
2. There is no exhaustive definition of what constitutes 'judicial power'. The "subtleties of the concept of characterising a power as judicial or not" have been discussed in numerous cases and various factors and considerations have been identified (Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 ("Wojciechowska"), [46]; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374 (Tasmanian Breweries); GS v MS [2019] WASC 255 (GS v MS), [60]-[75]).
3. An outline of relevant principles is contained in State of Tasmania (Department of Health & Human Services) v M; M v The State of Tasmania (Department of Health & Human Services) [2018] TASWRCT 24 ("State of Tasmania (Department of Health and Human Services) v M"):

35. There is no exhaustive list of features or definition of judicial power and how such power is to be distinguished from administrative power; Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167 at 188-9 [16] ("Precision Data"). > > 36. Despite this principles have been established in the authorities which can be applied to the circumstances of particular cases: The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 373. Although I acknowledge the statement of principle in paragraph 35 the accepted criteria for the characterisation of a power as a judicial power include the following: > > (a) The power to deliver a binding and authoritative decision in determining a dispute between parties; Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 ("Brandy"). That is "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion.": Rizeq v Western Australia [2017] HCA 23 at [52] (footnotes omitted). > > (b) The capacity to enforce those decisions although that is not necessarily an attribute of judicial power. However, the inability to enforce judgments is a factor weighing against the characterisation of the power as judicial: Brandy. > > (c) 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: Brandy and Precision Data. > > (d) The observance of open justice principles and the rules of procedural fairness: TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533. Where a tribunal is not bound by the rules of evidence, this may indicate that the exercise of the power is administrative: K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501. > > (e) Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 357 described the end result after the exercise of judicial power as "a binding and authoritative decision". In fact the enforceability of decisions given in the exercise of judicial power may characterise a function as judicial when it is otherwise equivocal: Brandy at 268. In addition, "where a tribunal is able to give a binding and authoritative decision and is able to take action to enforce that decision, 'all the attributes of judicial power are plainly present'." (Brandy at 268-9). Despite this it is not essential to the exercise of judicial power that a tribunal should be called upon to execute its own decision: Brandy at 269. Examples of this include a decision of the Human Rights and Equal Opportunity Commission that becomes binding and enforceable only upon registration in the Federal Court which was held to be made in the exercise of judicial power: Brandy at 270-1. Similarly an order of a court of petty sessions for the payment of money was made in the exercise of judicial power even though execution of such an order was by means of a warrant granted by a justice of the peace as an independent administrative act: The Queen v Davison [1954] HCA 46; (1954) 90 CLR 353 at 368.

1. Relying on the first three of the criteria set out in State of Tasmania (Department of Health & Human Services v M, the attorney submits that TASCAT delivers a binding decision in determining a dispute between parties and enforces that decision by virtue of s 33(8) of the POA Act which requires the Recorder of Titles to register decisions of the Tribunal.
2. The attorney submits the decision for TASCAT in these proceedings involves the determination of existing rights, as opposed to determining what rights should be created, and that judicial power is being exercised. The question for the Tribunal to determine is whether the donor had capacity to make the EPOA on 9 September 2022. The consequence of this finding is either that the attorney does have the right to deal with the donor's affairs and consequently owes the donor statutory and fiduciary duties, or the attorney does not. There is no scope for TASCAT, when determining the question whether a person has capacity to execute an enduring power of attorney, to consider what the attorney's rights should be, it is simply a question of what they are.
3. Further, according to the attorney, it is only if TASCAT determines that a person lacked capacity on the date they executed an EPOA that TASCAT is able to exercise its powers under s 33 of the POA Act. It follows that TASCAT must make a determination as to the existing rights and obligations of parties before the possibility of an order under s 33 arises.

1. The applicant's position is that the issue of whether a decision in reviewing an EPOA is judicial or administrative in character was dealt with comprehensively in EEC at [15]-[31]. In that matter, the then Guardianship Board determined that the power being exercised was administrative in character rather than judicial and that the Board therefore had jurisdiction to review the EPOA in question. While the decision is not binding on the Tribunal, it should be considered persuasive given it was the decision of a three-member panel.
2. According to the applicant, there is no dispute between residents of different states as what is sought is a review of a document made in Tasmania and under Tasmanian legislation which sensibly confers jurisdiction to review it in a Tasmanian forum.
3. Further, the applicant submits, there is no finding that could be made by the Tribunal which would be adverse to either the donor or attorney. Their personal interests are not in question, only the capacity of the donor at the time that the EPOA was made. The document was signed in Tasmania and the donor was, at the time the EPOA was made, in Tasmania. Where the donor currently resides has no bearing on the administrative issue as to the validity of the Tasmanian document.

1. It is relevant to note that in these proceedings, the application for review is not restricted to the challenge to the donor's capacity to make the EPOA on 9 September 2022. At page 3 of the application form in response to the question (at section 3) "What orders are you seeking from the Tribunal?", the applicant also ticks boxes indicating she seeks the appointment of a new attorney and a declaration that the EPOA is invalid. In her written response (at Annexure A) to the question "Why are you seeking the orders?", the applicant makes reference to the donor being induced to make the EPOA by dishonesty or undue influence. She also claims that the attorney has mismanaged the donor's finances and in her capacity as attorney has dealt with the donor's property in a manner contrary to his interests and wishes.
2. At page 6 of the application form in response to the question (at section 5) "If the Tribunal revokes the EPOA, does the person need an administrator", the applicant has ticked a box indicating yes, and gives as the reason that her father "has no capacity to understand or deal with his financial affairs". The applicant proposes the Public Trustee as administrator.
3. On the basis of the material filed to date, the Tribunal will therefore be required to consider the exercise of its discretion to make an order under s 33 of the POA Act in relation to both the operation, as well as the making, of the instrument.
4. In both scenarios, the Tribunal will examine evidence, make findings of fact, apply the relevant law and exercise its discretion as to the making of orders under s 33(2). In this respect, it is the case that the Tribunal delivers an authoritative decision, and it is binding on the parties to the application. In and of itself, this not determinative of whether the Tribunal is exercising judicial or administrative power as the "ascertainment of facts, the making of value judgements as to those facts, in the exercise of powers conferred by legislation, may be found in both judicial and administrative powers (Precision Data, 189).
5. Critically however, in my view, the Tribunal is not deciding a dispute between parties. Whilst proceedings may well be contested, the focus of the proceedings is the donor and the protection of the donor's interests under the instrument. This is consistent with the protective nature of the jurisdiction being exercised.
6. As noted by Justice Lindsay in Smith v Smith [2017] NSWSC 408:

[86] The concept of an "enduring" appointment as an attorney or guardian needs to be viewed in the context of the protective regime it serves. The Court and various statutory authorities exercise jurisdiction which, historically, was known by various names including, at a high level of abstraction, the parens patriae jurisdiction of the Crown.

7. A summary of the approach to be taken when exercising power in a protective jurisdiction is provided in C v W [2015] NSWSC 1774:

[96] Everything done, or not done, on an exercise of protective jurisdiction must generally be measured against what is in the interests, and for the benefit, of the person in need of protection: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV [2014] QCA 308 at [48]. > > [97] A party to protective proceedings (whether the proceedings be in the Tribunal or the Court) who fails to anchor every argument in the purposive, protective character of the jurisdiction being exercised runs a risk, not only of inviting error on the part of a decision maker, but also of being misunderstood (or, perhaps, being correctly understood) as a person seeking to advance his or her own interests under the guise of caring for a person incapable of self-management. Sadly, but naturally, there is an almost universal tendency (which calls for vigilance on all fronts, even that of altruism) to view the needs of an incapable person through the prism of self-interest.

8. Writing extra-curially, Justice Lindsay stated that:

[P]roceedings involving an exercise of protective jurisdiction are essentially administrative in character (although unconstrained, parties may seek to pursue them with adversarial zeal) and they are designed to protect the interests of a person in need of protection going forward.

(Lindsay J, "A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Capacity for Self-Management, Rights, Duties and Conflicts of Interest", Supreme Court of NSW Speeches, 26 October 2018).

1. The historical origins of the parens patriae jurisdiction in Tasmanian Courts was discussed then Chief Justice Blow in Public Guardian v Guardianship Administration Board [2011] TASSC 31.
2. President Schyvens has more recently confirmed that protective jurisdiction is exercised by the Guardianship stream of TASCAT and is "essentially a legislated form of the parens patriae jurisdiction exercised by the Court" (JK (request to withdraw application) [2022] TASCAT 21, [13]). In that case, the applicant for review of an enduring power of attorney sought to withdraw their application. In considering whether to grant leave to the applicant to withdraw the application under s 88 of the TASCAT Act, the President drew a distinction between a request for leave to withdraw applications in protective matters and matters before the Tribunal involving civil disputes, noting that in the former "the Tribunal is required to look beyond the position asserted by the applicant" ([13] and [24]). The Tribunal must:

also undertake a general survey of what has been submitted to the Tribunal in relation to the proceedings, to decide whether there are matters that should be ventilated by way of hearing which go to an attorney's compliance with their duties and whether or not the attorney has, or can in future, exercise the role of attorney in a manner which promotes the best interests of the [donor], and where applicable, takes account of the donor's wishes or likely wishes. [29]

Ultimately, the withdrawal application was declined, with the President concluding (at [40]):

A hearing will permit the Tribunal in a more fulsome way, bearing in mind the protective nature of the jurisdiction being exercised, to decide whether leaving the EPOA in operation without variation will protect and promote JK's interests, or alternatively, whether other orders need to be made, such as an administration order.

1. That the Public Guardian and Public Trustees are statutory parties to every application for a review of an EPOA (TASCAT Rules, r 7(5)) reinforces the protective nature of the proceedings.
2. Given the protective nature of the proceedings, I reject the attorney's contention that in dealing with an application to review an EPOA the Tribunal determines a dispute between parties or is settling a question as to "the existence of a right or obligation" (Tasmanian Breweries, 374-375 (Kitto J). Rather, such applications are about the donor. An attorney only derives authority to act pursuant to the instrument in question. Once one "anchors" an examination of the Tribunal's powers in the "purposive, protective character of the jurisdiction" (C v W (ibid)), it is apparent that the Tribunal, when exercising power pursuant to s 33 is determining what rights should be created in respect of the donor.
3. As noted in EEC at [24],

[t]he majority of the powers set out in s 33(2) of the POA Act are concerned with 'what rights should exist', being a distinctive feature of administrative power, rather than 'ascertainment of existing rights and liabilities'.

4. There is also an interconnectedness in the way the POA Act and the GAA operate in the context of an EPOA. That is because, if and when disputes arise as to the validity or operation of an EPOA, the Tribunal is empowered under s 33(2)(f) to revoke the EPOA and appoint an administrator of the estate. The appointment of a person as an administrator has the same effect as if it had been made under Part 7 of the GAA (s 33(3)).
5. Superior courts in other jurisdictions have found that the power exercised by the relevant tribunal in relation to administration and guardianship proceedings was administrative and not judicial in nature (GS v MS; German v State Trustees Ltd [2023] VSC 7). Whilst this issue has not been squarely determined in Tasmania, these decisions are highly persuasive and the power available to the Tribunal under s 33(2)(f) further points to the administrative character of the power.
6. I note the attorney's submission that the requirement under s 33(8) of the POA Act for the Recorder of Titles to register a decision made by the Tribunal under s 33, means that the decision is able to be enforced and that this tells in favour of the power being characterised as judicial power.
7. Registration of an enduring power of attorney that is subject to an order of the Tribunal is of course significant as any actions taken by the attorney under the EPOA have no legal effect unless it is registered (POA Act, s 16(b)). This provision forms part of the broader statutory scheme in relation to the registration of powers of attorney. It requires that the Recorder keep a register of both enduring and non-enduring powers of attorney (POA Act, s 4) and provides transparency for third parties in relation to the currency of powers of attorney. It makes not only the register and powers of attorney public records (POA Act, s 5(1)(a)&(b)) but also a copy of an order made under s 33(2) (POA Act, s 5(1)(d)). In my view, however, the mandatory requirement for registration under s 33(8) of orders made in protective proceedings is of a different character to the enforcement powers in the authorities referenced by the attorney and does not constitute enforcement of a decision made to determine a dispute between parties for the reasons previously outlined.
8. I have also considered the principles that govern proceedings across the Tribunal under s 79 of the TASCAT Act. The Tribunal is not bound by the rules of evidence and may otherwise inform itself as it considers fit (see above at [33]), which features "can be an indicator of an administrative rather than a judicial body, but is not determinative (K-Generation Pty Limited v Liquor Licensing Court 2009 HCA 4, [82] (French CJ)). The procedure of the Tribunal is to be conducted with the minimum of formality and must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and form, features which "militate in favour of characterising the exercise of power as more administrative than judicial in nature" (Wojciechowska v Secretary, Department of Communities and Justice, [91]). Of particular note when exercising functions and powers under the POA Act, the Tribunal is constituted as a matter of practice (see above at [32]) as a three-member panel, with a mix of specialist members and only one member is required to be legally qualified. Although not determinative, the constitution of a Tribunal that does not mandate members with legal qualifications militates in favour of characterising the Tribunal as exercising administrative power (Wojciechowska v Secretary, Department of Communities and Justice, [96]).

1. I have concluded that when determining applications under s 33 of the POA Act, the power exercised by the Tribunal is administrative in nature. The Tribunal exercises a protective jurisdiction when determining such matters with the focus on the donor and the protection of the donor's interests in relation to both the making of the instrument and the operation of the instrument. The Tribunal is not determining a dispute between parties, or existing rights or obligations of parties. The proceedings are about the donor and the orders available to the Tribunal under s 33(2) of the POA Act are concerned with the rights of the donor that should exist to best protect the donor's interests.
2. The principles that govern the Tribunal's proceedings and the constitution of the Tribunal when determining an application under the POA Act point also to the administrative nature of the power being exercised.
3. It follows that the Tribunal does not exercise federal jurisdiction as defined in s 129(1) of the TASCAT Act and s131 is not engaged. The Tribunal therefore has jurisdiction in relation to the application made by the applicant in the current proceedings.

1. I make the following orders:
2. The application to transfer the proceedings (Application to review Enduring Power of Attorney) to the Magistrate's Court pursuant to s 131 (2) of the Tasmanian Civil and Administrative Tribunal Act 2020 is dismissed.
3. A directions hearing is to be listed within 14 days of the date of this decision on a date to be fixed by the Registrar.