GS -v- MS [2019] WASC 255 (19 July 2019)

1. GAA 3092 of 2017 and GAA 3093 of 2017 gave rise to two separate proceedings under the State Administrative Tribunal Act 2004 (WA) (the SAT Act) in relation to which the Tribunal made separate decisions (albeit that it delivered a single set of reasons). The court's appellate jurisdiction under s 105 of the SAT Act is in relation to 'decisions' in a proceeding. For this reason, GS's appeal is properly to be regarded as two appeals, one in relation to the decision in GAA 3092 of 2017 and one in relation to the decision in GAA 3093 of 2017.[1]
2. Pursuant to s 105 of the SAT Act, an appeal can only be brought on a question of law and requires the leave of the court. The appeals are also outside of the time within which an application for leave to appeal can be made. GS, therefore, also applies for an extension of time within which to appeal.
3. MS, who resides in New South Wales, elected not to take part in the appeal and gave notice that he will abide by any order in the appeal other than as to costs. As the appeal raised a matter arising under the Constitution, the Attorney General for Western Australia intervened in the appeal pursuant to s 78A of the Judiciary Act 1903 (Cth).
4. On 17 December 2018, I ordered that the application for leave and the application for an extension of time be heard with the appeal.

The issues in the appeals and the applications for leave

1. The application for leave and appeal in relation to GAA 3093 of 2017 raises a quotidian issue in relation to the costs of the application before the Tribunal.
2. For reasons I will address shortly, the learned Tribunal Member dismissed the application in that matter for want of jurisdiction. She, nevertheless, did not make an order in relation to the costs of that matter, pending the resolution of GAA 3092 of 2017. The orders made by the learned Tribunal Member in GAA 3093 of 2017, were:

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.
3. There is no appeal from the order that the application pursuant to s 109(1)(a) of the Guardianship Act be dismissed. GS submits on appeal, that having dismissed the application, the Tribunal should simply have made no order as to costs, the proceedings being at an end.
4. The application for leave and the appeal in relation to GAA 3092 of 2017, by contrast, raises a constitutional issue of fundamental importance to the jurisdiction of the Tribunal under the Guardianship Act. That issue is, essentially, whether the Tribunal has jurisdiction to determine an application for a guardianship order and an administration order where the applicant and the other 'parties' to the application are residents of different States.
5. As discussed later in these reasons, the resolution of that issue turns upon whether the application brought by MS, pursuant to s 40 of the Guardianship Act, is a 'matter ... between residents of different States' within the meaning of s 75 of the Constitution. That issue, in turn, requires consideration of whether the powers conferred upon the Tribunal by pt 4, pt 5 and pt 6 of the Guardianship Act involve the exercise of judicial power.[2]
6. The order made by the learned Tribunal Member in GAA 3092 of 2017, against which GS appeals was:

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 an 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.
3. As is apparent, the substantive order appealed by GS is an order simply adjourning the application pursuant to s 40 of the Guardianship Act. It proceeds, however, upon the Tribunal's determination, set out in the preamble to the orders, that the Tribunal had jurisdiction in relation to (at least part of) the application under s 40 of the Guardianship Act.
4. On appeal, GS submits, that the Tribunal should have found that it did not have any jurisdiction at all, as the application for a guardianship order and an administration order was a 'matter ... between residents of different States'.
5. Regardless of the outcome of the appeals, this question of law, particularly as it applies to GAA 3092 of 2017, raises important issues of general application in relation to the jurisdiction of the Tribunal. I consider that it is in the interests of justice that leave to appeal be granted in relation to each of GAA 3092 of 2017 and GAA 3093 of 2017 and that GS be granted an extension of time within which to appeal.[3]
6. Before turning to the legal issues raised in the appeal, it is necessary to briefly set out the procedural history and the reasons for the decision of the Tribunal.

The applications to and the decision of the Tribunal

1. The applications in GAA 3092 of 2017 and GAA 3093 of 2017 were commenced by MS on 17 October 2017. MS is, and was at all material times, a resident of New South Wales. GS and RS are both residents of Western Australia.
2. On 18 April 2018, the High Court of Australia delivered its decision in Burns v Corbett.[4] Relevantly, a majority of the Court in Burns v Corbett concluded that adjudicative authority in respect of the matters listed in s 75 and s 76 of the Constitution could be exercised only by 'courts' within the meaning of ch III of the Constitution. Those matters include any matter 'between residents of different States'.[5]
3. The effect of that conclusion is that a law of a State that purports to authorise an agency of a State, other than a court, to determine a 'matter' between residents of different states is, to that extent, invalid. For example, in Burns v Corbett, the Court concluded that the New South Wales Civil and Administrative Tribunal (NCAT), not being a 'court', could not exercise jurisdiction to determine a dispute under the Anti-Discrimination Act 1977 (NSW) between a complainant and a respondent who were residents of different States.
4. In Burns v Corbett, it was not in dispute that:

(a) the disputes between, inter alia, Mr Burns and Ms Corbett were matters between residents of different States within the meaning of s 75(iv) of the Constitution;[6] and

(b) NCAT was not a 'court of a State' for the purposes of ch III of the Constitution.[7]

1. As a consequence of the decision in Burns v Corbett, the Tribunal in the present case, quite properly, invited submissions from MS and GS as to whether there were any jurisdictional impediments to the Tribunal hearing the applications in GAA 3092 of 2017 and GAA 3093 of 2017.
2. The Tribunal heard submissions in relation to that issue on 28 June 2018 and delivered its reasons for decision on 1 August 2018.
3. In reaching its decision, the Tribunal accepted that it was not, relevantly, a 'court of a State'. The Tribunal Member was undoubtedly correct in so doing. The Tribunal, as established by the SAT Act, notwithstanding that it has many features of a 'court', is not a court within the meaning of the Constitution.[8] Indeed many of the features of the Tribunal that are intended to facilitate the effective exercise of its jurisdiction (including specialist lay membership, holding office for fixed terms) belie its characterisation as a court.[9]
4. The learned Tribunal Member, therefore, focussed principally on the question as to whether the applications in GAA 3092 of 2017 and GAA 3093 of 2017 were 'matters ... between residents of different States'. In that regard, the Tribunal Member was satisfied that the applications under s 40[10] and s 109[11] of the Guardianship Act were relevantly 'matters' within the meaning of the Constitution. For this reason, the learned Tribunal Member focussed on the word 'between' in s 75(v) of the Constitution and the identification of the relevant parties to the applications.
5. Following this approach the learned Tribunal Member concluded that:

(a) The application for a guardianship order was not 'between' MS and GS;

(b) The application for an administration order was 'between' MS and GS (as he sought appointment of himself as administrator); and

(c) The application under s 109 of the Guardianship Act was 'between' MS and GS.

1. These findings formed the basis of the words appearing in the preamble to the orders made by the Tribunal Member in each of GAA 3092 of 2017 and GAA 3093 of 2017.

1. There is no appeal from the finding that the application under s 109 of the Guardianship Act was a matter between MS and GS, such that the application in GAA 3093 of 2017 should be dismissed for want of jurisdiction. There being no appeal, and no submissions having been made in that regard, I express no view in relation to that issue.
2. In relation to the application under s 40 of the Guardianship Act, however, I conclude that the Tribunal does have jurisdiction to make both a guardianship order and an administration order.
3. The orders in GAA 3092 of 2017 adjourning the application under s 40 of the Guardianship Act for further hearing by the Tribunal were, therefore, appropriate and should not be disturbed on appeal. Contrary to the conclusions of the learned Tribunal Member, however, my conclusion that the Tribunal has jurisdiction:

(a) extends to both the application for a guardianship order and an administration order; and

(b) does not depend upon the residence or status of the various 'parties'.

1. My reasons for reaching these conclusions follow.
2. In setting out my reasons, I have not addressed in detail the reasons of the Tribunal. In proceeding in this way, I intend no disrespect to the learned Tribunal Member's thoughtful and considered reasons. Rather, in a matter such as this, which involves pure questions of law, it is important that I set out the basis for my conclusions as clearly and succinctly as possible. This area of the law is complex enough without my providing a running commentary on the detail of the Tribunal's reasons.

The reasons for my conclusion The starting point - Chapter III of the Constitution is concerned only with judicial power

1. The starting point for considering the issues raised by Burns v Corbett is that ch III of the Constitution is concerned with, and only concerned with, judicial power. This is reflected in the twin pillars of the Boilermakers' Case,[12] namely that:

(a) it is beyond the competence of the Commonwealth Parliament to vest any part of the judicial power of the Commonwealth in any body or person except a court created pursuant to s 71 of the Constitution or a court brought into existence by a State; [13] and

(b) the Constitution does not allow the use of courts established by or under ch III for the discharge of functions which are not in themselves part of the judicial power of the Commonwealth and are not auxiliary or incidental thereto. [14]

1. Burns v Corbett was concerned with the implications that ch III has for the investiture of judicial power by a State Parliament in respect of the matters listed in s 75 and s 76, and in particular the investiture of such power in State tribunals.[15] The central holding of Burns v Corbett was that a State Parliament could not confer on an executive agency of the State adjudicative authority in respect of any matter listed in s 75 and s 76.[16] Consistent with ch III of the Constitution's careful provision for the exercise of judicial power, such adjudicative authority may only be conferred on 'courts'.
2. It is inherent in these propositions that the 'matters' with which s 75 and s 76 of the Constitution are concerned are, therefore, matters involving, or calling for the exercise of, judicial power.[17] Those provisions are not concerned with 'administrative' matters or non-judicial power. While the constitutional meaning of 'matter' and 'judicial power' are not synonymous, they nevertheless overlap. A 'matter' within the meaning of s 75 and s 76 of the Constitution involves, amongst other things, the existence of a controversy for the quelling of which judicial power is invoked.[18]
3. Put another way, a useful description (albeit not an exhaustive definition) of a 'matter' is 'a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of that controversy'.[19] The 'matter' (the controversy) is, accordingly the res (or thing) in relation to which, because the controversy is 'justiciable', judicial power is exercised.
4. For these reasons, unless by s 40, s 43 and s 64 of the Guardianship Act the State Parliament has purported to confer upon the Tribunal judicial power, the limitation on State legislative power identified by the majority in Burns v Corbett is not engaged.
5. Put another way, if s 40, s 43 and s 64 of the Guardianship Act do not confer on the Tribunal judicial power, the Tribunal has jurisdiction, regardless of the residence or status of the various 'parties'. It is simply not a 'matter' in relation to which the constitutional limitation is engaged.
6. This reflects the approach taken to the application of Burns v Corbett in other Australian jurisdictions,[20] and was accepted as correct by GS in the present case.[21]
7. The primary question, therefore, is: Does the Guardianship Act, in empowering the Tribunal to make guardianship orders and administration orders, confer on the Tribunal judicial power?
8. For the reasons that follow, the answer to that question is 'no'.

The jurisdiction to make guardianship orders and administration orders does not involve judicial power

1. Before turning to the essential characteristics of judicial power, it is necessary to set out the nature of the Tribunal's jurisdiction to make guardianship orders and administration orders, by reference to the provisions of the Guardianship Act.

1. The Guardianship Act, as its long title provides, makes provision for 'the guardianship of adults who need assistance in their personal affairs [and] for the administration of the estates of persons who need assistance in their financial affairs'.
2. To that end, the Guardianship Act confers various jurisdictions on the Tribunal. Section 4 provides a set of principles to be observed by the Tribunal in dealing with proceedings commenced under the Guardianship Act. Those principles include:

(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 -

(a) looking after his own health and safety;

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

(c) managing his own affairs; and

(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.

...

(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 Guardianship Act provides that any person may apply to the Tribunal for a guardianship order or an administration order in respect of a person. Section 41 variously provides for notice to be given to persons in relation to such applications including, in every case, the person in respect of whom the application is made, the Public Advocate and, in the case of an application for an administration order, the Public Trustee.
2. Part 5 of Guardianship Act deals with guardianship.
3. The circumstances in which the Tribunal may make a guardianship order are set out in s 43(1) of the Guardianship Act, which provides:[22]

(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 -

(a) has attained the age of 18 years;

(b) is -

(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; and

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. In relation to the appointment of a guardian, s 44 of the Guardianship Act relevantly provides:
   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.

1. As is apparent from s 43(1), a guardianship order may involve the appointment of a plenary guardian or a limited guardian. The authority of a plenary guardian is set out in s 45(1) and s 45(2) of the Guardianship Act:[23]
   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.

1. Section 46 of the Guardianship Act provides that the authority of a limited guardian are such functions mentioned in s 45 of the Guardianship Act as the Tribunal vests in him, her or them.
2. The balance of pt 5 of the Guardianship Act contains provisions making efficacious the authority of a guardian, including empowering the guardian to execute such documents and do all such other things as are necessary for the performance of the functions vested in them,[24] and providing that actions taken by them have full effect as if done by the represented person, were they of full legal capacity.[25]
3. Part 6 of Guardianship Act deals with administration. Many of the provisions of pt 6 mirror those in relation to guardianship in pt 5.
4. Section 64(1), for example, provides for the circumstances in which the Tribunal may make an 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

(b) is in need of an administrator of his estate,

the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint -

(c) a person to be the administrator; or

(d) persons to be joint administrators,

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

1. In relation to the appointment of an administrator, s 68 of the Guardianship Act, relevantly, provides:
   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

(b) a corporate trustee,

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.

1. The authority of an administrator includes, in relation to the estate of the represented person, such of the functions provided for in the Guardianship Act as are vested in the administrator by the order of the Tribunal.[26] Those functions may include plenary functions in relation to the estate, which authorise the administrator to perform any function that the represented person could perform themselves, if they were of full legal capacity.[27] Alternatively, the Tribunal may authorise the administrator to perform some, or all, of the functions set out in pt A of sch 2 to the Guardianship Act.[28]
2. In addition to conferring authority on the administrator, the Tribunal may itself give directions, make orders, or do other things provided for in sch 2, pt B of the Guardianship Act and make any other order that it thinks necessary for proper administration of the estate of the represented person.[29]
3. Where a person is the subject of a declaration under s 64 of the Guardianship Act that they are in need of an administrator, the person is incapable of entering into a contract or making any disposition in respect of their estate without the authorisation of the administrator and consent of the Tribunal.[30]
4. There are no particular provisions in the Guardianship Act in relation to the enforcement of guardianship orders or administration orders. That is likely because the determinations made by the Tribunal concern the conferral of functions and authority in persons. Any further rights or liabilities generated by the exercise of that authority would fall to be enforced in courts of competent jurisdiction.[31]
5. Pursuant to the provisions of the SAT Act generally, the Tribunal is not able to enforce its own orders, although they may be registered with a court of competent jurisdiction (in relation to monetary orders),[32] or this Court (in relation to non-monetary orders),[33] and enforced accordingly.
6. In determining whether the power of the Tribunal to make a guardianship order under s 43 of the Guardianship Act or an administration order, under s 64 involves the exercise of judicial power, it is necessary first to identify the essential attributes of judicial power.

1. The unique and essential function of judicial power is the quelling of controversies about legal rights and legal obligations through ascertainment of the facts, the application of the law and the exercise, where appropriate, of judicial discretion.[34]
2. A useful, albeit not exhaustive, statement of the nature of judicial power was provided by Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, in the following terms:[35]

... a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.

1. As is apparent from this statement of principle, judicial power is generally concerned with the ascertainment and enforcement of existing rights and obligations; it involves the determination of what the relevant person's rights or obligations are, not what they should be. The closer one moves to the core of this conception of judicial power, the more readily may it be concluded that a particular power is, essentially, judicial in nature.[36]
2. So, for example, as Brennan, Deane & Dawson JJ stated in Chu Kheng Lim v Minister for Immigration:[37]

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to ... and "could not be excluded from" ... the judicial power of the Commonwealth.

1. Functions such as this necessarily involve the exercise of judicial power, and could never be characterised as anything other than involving judicial power (regardless of the body upon which they are sought to be conferred).[38]
2. At the other end of the spectrum are powers that are concerned not with determining what persons' rights and obligations are, but what they should be in future. This was the essential holding of the unanimous decision of the High Court in Precision Data Holdings Ltd v Wills, namely that:[39]

... 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. In Re Ranger Uranium Mines (1987) 163 CLR at p 666 the Court said:

"The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration."

1. The difficulty, of course, which arises in the application of these general principles is that there may be much in the way of overlap between those functions which sit at the 'core' of judicial power (and which are exclusively and essentially part of it) and those functions that may be regarded as 'purely' administrative.
2. That is because, on the one hand, there will be aspects of judicial power that will commonly be found in administrative powers. The ascertainment of facts, and the making of value judgments as to those facts, in the exercise of powers conferred by legislation, may be found in both judicial and administrative powers. As the High Court also observed in Precision Data Holdings:[40]

... although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power.

1. On the other hand, there are numerous examples of powers that, while not involving the determination of a lis inter parties,[41] or which involve the creation of new rights or obligations, have nevertheless been entrusted to courts and have thus been treated as properly part of judicial power (or incidental to it). An often-cited statement of the variety and abundance of such powers appears in the judgment of Dixon CJ and McTiernan J in R v Davison.[42] It will be necessary for me to return to R v Davison, as one such power referred to by their Honours, and relied upon by GS in this appeal, is the power to make 'orders relating to the maintenance and guardianship of infants'.
2. There is, therefore, no 'bright line' test to be applied in the determination of whether a particular power is properly to be characterised as judicial power. Indeed, for this reason, some functions (so-called 'chameleon' functions) may properly be characterised as administrative or judicial according to whether they are conferred upon an authority acting administratively or upon a court.[43]
3. GS referred, in her submissions, to Kirby J's (sometimes strident) criticism of the 'chameleon doctrine' (or at least overreliance on it).[44] In that regard it must be recognised that the fact that a particular power is assigned to a court or executive body cannot be conclusive of the constitutional character of the power.[45] Nevertheless, there can be no doubt that the chameleon doctrine properly recognises that certain functions and powers, in the penumbra of the notion of judicial power, may, depending upon the particular circumstances (including the body to which they are entrusted), be properly characterised as administrative.
4. Nor is this notion by any means new. Indeed, it was recognised by Dixon CJ and McTiernan J in R v Davison (footnotes omitted):[46]

The legislature may commit some functions to courts falling within Chapter III although much the same function might be performed administratively. In the judgment of this Court in Queen Victoria Memorial Hospital v Thornton, the observation occurs:- "Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers".

It is this double aspect which some acts or functions may bear that makes it so difficult to define the judicial power. The appointment of a new trustee may be regarded as something to be done in the course of the judicial administration of trusts or assets. But there is no reason why it should not be treated from another point of view and regarded as an act to be done by an administrative body authorized to exercise some governmental control, for example over public charities.

1. The same point was made by Kitto J in Tasmanian Breweries, in relation to the 'borderland in which judicial and administrative functions overlap'.[47]
2. Another matter relevant to the characterisation of a power as judicial is whether the repository of the power (in this case the Tribunal) has power to enforce its own orders.[48] In Brandy, for example, Mason CJ, Brennan and Toohey JJ stated, in relation to the Human Rights and Equal Opportunity Commission (HREOC):[49]

The fact that the Commission cannot enforce its own determinations is a strong factor weighing against the characterisation of its powers as judicial; though it must be recognised that this is not an exclusive test of the exercise of judicial power.

1. The power of a tribunal to enforce its own orders is, accordingly, another relevant but not conclusive consideration. In that context, as was the case in Brandy, it will also be relevant whether the orders of the relevant body or tribunal are enforceable by registration with a Court.[50]
2. As is apparent from the foregoing discussion, the determination, in any given case, as to whether a particular power or function is to be characterised as 'judicial power' involves an evaluative judgement having regard to a complex of factors including the nature of the power, the repository of the power and historical considerations.[51]
3. I turn now to that evaluative judgement in the present case.

The jurisdiction to make guardianship orders and administration orders

The nature of the powers conferred on the Tribunal

1. Historical considerations aside (for the moment), the nature of the power of the Tribunal to make guardianship orders and administration orders falls clearly on the 'administrative' side of the 'borderland' of judicial and administrative functions.
2. In that regard, an application for a guardianship order or an administration order lacks many of the features that are generally to be found in (and support the characterisation of a powers as) judicial power.
3. First, an application for a guardianship order or an administration order is not concerned with settling a question as to 'the existence of a right or obligation'.[52] It is, therefore, not at the core of those matters that exclusively and essentially form part of judicial power. It is correct, as GS submits, that the Tribunal, in exercising the power to appoint a guardian or administrator must ascertain facts by reference to the statutory criteria (such as those identified in s 43(1)(b) and s 64(1)(a) of the Guardianship Act). As the authorities make clear, however, the need to make factual findings, particularly in relation to jurisdictional facts enlivening a discretion, is a common feature of administrative functions and powers. It does not mark out a power as essentially judicial.
4. Secondly, applications for guardianship orders and administration orders are ultimately concerned with the creation of new rights, and the determination of what future rights and obligations should be. As the Court stated in in Precision Data Holdings, such a function generally 'stands outside the realm of judicial power'.[53] This is not to say that courts may never exercise functions that involve interfering with legal rights and creating new obligations. Plainly they have exercised such function, and will continue to do so.[54] In that sense, such powers are not 'exclusively or distinctively administrative'.[55]
5. Nevertheless, the fact that applications for guardianship orders and administration orders are concerned with what rights and obligations should be, points strongly to their administrative character, at least when reposed in a body other than a court. Even if such powers can be conferred on a court, they are not peculiarly judicial in nature (as, for example, is with the adjudgment and punishment of criminal guilt). To adapt the metaphor from the authorities, while powers such as the power to appoint guardians or administrators may properly be described as 'chameleon' functions, they nevertheless spend most of their time with a distinctly administrative hue.
6. In this context, I should recognise GS's submission that an application for a guardianship order or an administration order is not a clear case of the creation of a new right per se, but rather a decision as to how the proposed represented person's existing rights are to be affected.[56] While those submissions were certainly food for thought, ultimately, in my view, the power to appoint a guardian or administrator is not relevantly distinguishable from other administrative powers involving the creation of new rights and obligations. The rights of the represented person are not transferred to a guardian or administrator by a guardianship order or an administration order. The Guardianship Act creates new rights and obligations, which are to be exercised in accordance with the provisions of the Act itself.
7. Thirdly, while proceedings in relation to guardianship and administration may be contested (and in that sense disputed), those proceedings are not, essentially, about resolving disputes. They are protective in nature and, in particular, for the protection of the proposed represented person. And although various persons and entities are defined as 'parties' for the purposes of the proceedings,[57] it is in the nature of the proceedings that they are not inter partes in the ordinary sense of that expression.[58]
8. The Tribunal, in hearing a guardianship order or an administration order, does not decide a dispute between the parties; it applies its statutory obligation (in s 4(2) of the Guardianship Act) to act in 'the best interests of [the] person in respect of whom an application is made'. Indeed, the expression, 'person in respect of whom an application is made' emphasises that the application is about the person rather than against the person. Similarly, while s 4(7) requires the Tribunal must 'as far as possible, seek to ascertain the views and wishes of the person concerned' the Guardianship Act implicitly recognises that the very nature of the proceedings are such that those views and wishes may be contrary to the person's best interests.
9. Again, these issues are not determinative. It may well be that such sui generis jurisdiction may also be appropriately exercised by a court. Nevertheless, it serves to emphasise that the nature of the proceedings is not at the core of judicial power.
10. A final factor to note is the fact that the Tribunal does not, under the provisions of the SAT Act and the Guardianship Act, have power to enforce its own orders. This also tells against the power being characterised as judicial.
11. It is important to recognise, however, that non-monetary orders of the Tribunal may be registered in this Court and, where registered, enforced as an order of this Court.[59] The registration and enforcement of HREOC's orders with the Federal Court was a significant matter supporting the court's conclusion in Brandy that HREOC was exercising judicial power.[60] That case, however, was concerned with powers of a very different kind, more akin to those conferred on NCAT the subject of Burns v Corbett.
12. In the end, I consider the enforceability of the Tribunal's orders to be an equivocal consideration in the present case.
13. The other matters to which I have referred, however, namely the protective nature of the jurisdiction, its entire focus on the creation of rights and obligations in the future (the absence of any controversy over an existing right) and its repose in a specialist administrative tribunal, all point strongly to the conclusion that the powers exercised by the Tribunal in application for guardianship orders or administration orders are not of their nature judicial power.
14. In this regard, Bell J in Patrick's Case,[61] in the context of determining whether the power to appoint a guardian were 'administrative' in the context of the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic), observed:[62]

Applying these principles to the present case, we have seen that the jurisdiction of the tribunal under the Guardianship and Administration Act is original jurisdiction for the purposes of the Victorian Civil and Administrative Tribunal Act. It is a jurisdiction to make guardianship and administration orders, which are orders for the appointment of substitute decision-makers for persons with a disability. The power to make such orders is discretionary in nature and involves the application and consideration of protective criteria, being the core principles and the personal autonomy of the person. The powers are subject to rehearing on the merits and also to regular reassessment. The Public Advocate has statutory protective functions and appearance rights in the tribunal. The powers of the tribunal are similar in nature to the powers of the Mental Health Review Board (when exercised in the board's original jurisdiction) and the tribunal (when exercised in the tribunal's review jurisdiction) under the Mental Health Act, which are administrative. In my view, the functions of the tribunal under the Guardianship and Administration Act to appoint guardians and administrators are administrative in the public law sense and the tribunal performs those functions in its original jurisdiction in that capacity.

It is clear from these authorities that powers of the kind conferred on the tribunal by the Guardianship and Administration Act are not of their nature plainly judicial. Such powers (or at least some of them) might be capable of being characterised as judicial or administrative, depending on the other indicia, and especially whether the powers are being exercised by a court or a tribunal. In the present case, the other indicia point strongly to the conclusion that the guardianship and administration jurisdiction of the tribunal is administrative in nature, though it be original and not review jurisdiction, and I so conclude.

1. The features of the Guardianship and Administration Act 1986 (Vic) identified by Bell J in Patrick's Case are relevantly identical to those in the Guardianship Act in this State. I agree with the conclusion that his Honour reached.[64] Applications for guardianship orders or administration orders do not involve the exercise of judicial power.

1. It remains, in relation to this issue, for me to explain why this conclusion is not inconsistent with the recognition, in R v Davison, that the power to make 'orders relating to the maintenance and guardianship of infants' has properly fallen within the jurisdiction of courts of justice.
2. The full passage, in that regard, is as follows:[65]

It may be said of each of these various elements [of judicial power] that it is entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law. In the administration of assets or of trusts the Court of Chancery made many orders involving no lis inter partes, no adjudication of rights and sometimes self-executing. Orders relating to the maintenance and guardianship of infants, the exercise of a power of sale by way of family arrangement and the consent to the marriage of a ward of court are all conceived as forming part of the exercise of judicial power as understood in the tradition of English law. Recently courts have been called upon to administer enemy property. In England declarations of legitimacy may be made. To wind up companies may involve many orders that have none of the elements upon which these definitions insist. Yet all these things have long fallen to the courts of justice. To grant probate of a will or letters of administration is a judicial function and could not be excluded from the judicial power of a country governed by English law.

1. The first point to note in relation to this passage is that its whole point is to identify forms of jurisdiction that do not otherwise exhibit the usual features of judicial power but which have, nevertheless, been historically exercised by courts. It is, therefore, expressly concerned with exceptions to the general rule; that is, exceptional jurisdiction that has historically been exercised by courts. The passage is not identifying matters that are 'exclusively judicial'.
2. This is confirmed by the passage immediately following these references, including the passage reproduced at [71] above, where Dixon CJ and McTiernan J recognised that the very kinds of matters identified by their Honours may be done 'without the exercise of judicial power'. Their Honours expressly recognise that powers and functions within the 'borderland' may, depending upon the circumstances, be properly recognised as administrative.
3. As to their Honours' specific reference to 'orders relating to the maintenance and guardianship of infants', the particular history of that jurisdiction confirms that while historically (and traditionally) exercised by courts, the source and nature of the jurisdiction is largely executive or administrative. This includes, relevantly, the jurisdiction previously known as the court's jurisdiction 'in lunacy'. It should be noted, in this context, that the historical jurisdiction of the courts included not only the power to appoint guardians to infants and lunatics,[66] but also the jurisdiction to make direct decisions in relation to the affairs of such persons.[67]
4. The jurisdiction of English courts (the Exchequer and Court of Chancery) in relation to both infants and 'lunatics', has its origins in the delegation by the Crown of its Royal prerogatives.[68] That jurisdiction arose out of the inherent jurisdiction of the Crown to do what is for the benefit of the incompetent.[69] In Marion's Case,[70] for example, the court said of the jurisdiction:[71]

[T]he parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind.

1. The courts' jurisdiction in relation to the 'maintenance and guardianship of infants' referred to by Dixon CJ and McTiernan J in R v Davison may be traced, therefore, not to the courts' ordinary jurisdiction as courts of law but to an administrative power.
2. So much is apparent from the decision of the House of Lords in Scott v Scott.[72] In that case, Viscount Haldane LC observed in the case of 'wards of Court and lunatics' the court's jurisdiction was 'parental and administrative':[73]

[T]he judge who is administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor, is not sitting merely to decide a contested question. His position as an administrator as well as judge may require the application of another and overriding principle to relegate his procedure in the interests of those whose affairs are in his charge.

1. To the same effect, Lord Shaw, observed that:[74]

... the jurisdiction over wards and lunatics is exercised by the judges as representing His Majesty as parens patriae. The affairs are truly private affairs; the transactions are transactions truly intra familiam ...

1. The Earl of Halsbury went further, observing that neither wardship nor the care and treatment of 'lunatics' 'forms part of the public administration of justice at all'.[75]
2. These authorities make clear, I conclude, that the nature of the powers to appoint guardians and administrators, while historically able to be exercised by courts (and so are properly to be regarded as incidental to the exercise of judicial power),[76] are nevertheless properly to be regarded as essentially administrative powers.
3. For these reasons, I conclude that s 40, s 43 and s 64 of the Guardianship Act do not confer judicial power on the Tribunal. In my view, the correct way of characterising that conclusion, within the context of s 75(iv) of the Constitution, is that an application under s 40 for a guardianship order or an administration order does not involve a 'matter' within the meaning of that provision.
4. In any event, for the reasons I have given, the constitutional limitation identified in Burns v Corbett is not engaged.
5. The Tribunal, therefore, has jurisdiction in GAA 3092 of 2017, regardless of the residence or status of the various 'parties'.

1. The conclusion that s 40, s 43 and s 64 of the Guardianship Act do not confer judicial power on the Tribunal is sufficient to dispose of the appeal in relation to GAA 3092 of 2017.
2. Nevertheless, it is appropriate that I briefly express my conclusions in relation to a number of other issues raised in that appeal. Those issues proceed upon the assumption that GAA 3092 of 2017 otherwise involves a 'matter' within the meaning of s 75(iv) of the Constitution. That assumption includes, contrary to my conclusion above, that an application under s 40 for a guardianship order or an administration order involves, and calls for the exercise of, judicial power.
3. Upon that assumption, the additional issues arise out of whether the relevant matter is 'between residents of different States'.
4. Much of the submissions made by GS and the Attorney General (intervening), in this context, focussed on the latter aspect of this phrase (i.e. 'residents of different States') by seeking to identify who were the relevant parties to the matter and which 'side' they were on.
5. In this regard, both GS and the Attorney General (intervening), referred to High Court authority to the effect that there must be 'complete diversity' of parties. In other words, all of the parties on one side of the matter must be residents from one State and all of the parties on the other side of the matter must be residents from another State.[77] Similarly, the authorities establish that an artificial person, such as a body corporate, cannot be a 'resident' within the meaning of s 75(iv) of the Constitution, such that, if one of the parties was a body corporate, s 75(iv) cannot apply.[78]
6. These principles led to submissions as to:

(a) which persons were parties to the matter, as 'determined by reference to the substantial subject matter of the controversy and not by reference only to the form in which the legal proceedings involving it happen to be framed';[79]

(b) the status of each of GS and MS in the application for the guardianship order and the application for the administration order respectively; and

(c) whether the Public Trustee, a body corporate,[80] who is a 'party' to the application for an administration order (within the meaning of the Guardianship Act),[81] is a party for the purposes of s 75(iv) of the Constitution.

1. I will return to these issues shortly.
2. There is, however, an anterior question that needs to be addressed: are applications for guardianship orders or administration orders, even if they are matters, matters between anyone at all?
3. In my view, they are not. Even if the applications involve the exercise of judicial power (as they might if the jurisdiction were conferred on a court), that does not have the consequence that they are inter partes. It does not mean that they are 'between' the person in the sense contemplated by s 75(iv) of the Constitution.
4. It is clear, in this context that the 'matters' to which s 75 and 76 of the Constitution generally refer are not confined to matters inter partes. A matter arising under a law made by the Commonwealth Parliament, for example, could very well give rise to an ex parte proceeding, and so not be 'between' any individuals.
5. The constitutional concept of a 'matter', therefore, does not carry within it the notion that it must be inter partes. So much was made clear by the High Court in Re Judiciary Act 1903-1920; Re Navigation Act 1912-1920:[82]

... 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. This passage is not only consistent with the notion that proceedings concerned with 'management of the affairs of infants or lunatics' are administrative in nature (in the manner identified by the House of Lords in Scott v Scott), they are also, when conferred on courts, specifically to be contrasted with proceedings that are inter partes.
2. Nevertheless, while a 'matter' generally need not be inter partes, the kinds of matters contemplated by s 75(iv),[83] by the use of the word 'between', necessarily contemplate a dispute inter partes (be that dispute civil or criminal[84]).
3. For the reasons I have earlier identified at [83] to [84] above, an application to appoint guardians and administrators, being protective in nature, is not inter partes in the ordinary sense of that expression. Nor, for this reason, can such a matter be said to raise a matter 'between' any persons who may participate in the proceedings within the meaning of s 75(iv) of the Constitution.
4. This provides an additional reason for concluding that the applications in GAA 3092 of 2017 do not involve a matter within the meaning of s 75(iv) of the Constitution.
5. Indeed, the fact that the 'matter' (if there be one) is not inter partes, renders nugatory the exercise that occupied much of the attention of the Tribunal member (and the submissions on appeal) in the present case; namely that of identifying which 'side' GS and MS were on in the applications in GAA 3092 of 2017. In truth, consistent with my conclusion above, there are no 'sides' in the applications at all.
6. If, contrary to my conclusion, it was necessary to identify which 'side' the GS and MS were on in the putative 'matter', I would be inclined to agree with GS that she and MS are on different sides of the relevant 'controversy'.[85] This conclusion would not depend, as the Tribunal member found, on whether MS sought to have himself appointed as guardian or administrator, but on the basis of the positions adopted by the parties in relation to the applications.
7. Nevertheless, that does leave to be considered the position of the Public Trustee. As noted above, the authorities establish that an artificial person, such as a body corporate, cannot be a 'resident' within the meaning of s 75(iv) of the Constitution; with the result that, if one of the parties is body corporate, s 75(iv) cannot apply.
8. The Public Trustee is, in my view, in substance a necessary party to any 'matter' with which GAA 3092 of 2017 is concerned.[86] The Public Trustee must be given notice of an application for an administration order and, in every case, is defined as a party to the proceedings (even prior to it being given notice).[87] I do not agree that it can be characterised as merely 'waiting on the sidelines'.[88] The requirement to notify the Public Trustee forms an integral part of the protective nature of the proceedings.
9. In this context, I note that the Attorney General (intervening) contended that it was open to conclude, as the learned Tribunal Member did, that there were relevantly two matters involved in GAA 3092 of 2017: (1) the application for the guardianship order and (2) the application for the administration order.
10. I do not agree. In the event that there was a matter raised by GAA 3092 of 2017 it was a single matter. In this regard, whether separate claims or issues form part of a single matter is a matter of impression and practical judgment.[89] In Re Wakim; Ex parte McNally, Gummow and Hayne JJ summarised the position as follows (citations omitted):[90]

What is a single controversy "depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships". There is but a single matter if different claims arise out of "common transactions and facts" or "a common substratum of facts", notwithstanding that the facts upon which the claims depend "do not wholly coincide". So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are "completely disparate", "completely separate and distinct" or "distinct and unrelated" are not part of the same matter.

1. In the present case the application to appoint a guardian and the application to appoint an administrator (made by the single written application under s 40 of the Guardianship Act)[91] are closely connected. To begin with, they relate to the same person, GS. Moreover, the basis for each application is the same, namely the effect upon GS's decision-making ability said to arise from dementia. Those alleged effects, if established to the satisfaction of the Tribunal, would be relevant to the statutory criteria in both s 43(1)(b) (in relation to the application for a guardianship order) and s 64(1)(a) (in relation to the application for an administration order).
2. The essential difference between the two applications is that guardianship concerns GS's health and safety (and matters concerning her person), whereas administration concerns GS's estate. While different issues may well arise in relation to those issues they nevertheless arise out of a 'common substratum of facts'. Accordingly, they would form part of a single 'matter'.

Summary of conclusions in relation to GAA 3092 of 2017

(a) Section 40, s 43 and s 64 of the Guardianship Act do not confer judicial power on the Tribunal and so GAA 3092 of 2017 is not a 'matter' in relation to which the constitutional limitation identified in Burns v Corbett is engaged; and

(b) in any event, GAA 3092 of 2017, not being inter partes, does not involve a matter 'between' persons sufficient to engage s 75(iv) of the Constitution.

1. For these reasons, the Tribunal has jurisdiction in relation to both the application for a guardianship order and the application for an administration order in GAA 3092 of 2017.
2. The appeal from the decision in GAA 3092 of 2017 must be dismissed.

1. The appeal from the decision in GAA 3093 of 2017 relates to the question of costs.
2. The Tribunal concluded that the application under s 109 of the Guardianship Act was 'a matter ...between' MS and GS, such that the application in GAA 3093 of 2017 should be dismissed for want of jurisdiction. There is no appeal from that conclusion.
3. The Tribunal, however, reserved the question of costs pending the resolution of GAA 3092 of 2017.
4. GS submits that, having found that it lacked jurisdiction, the Tribunal was not empowered to consider the question of costs, even by reference to the limited discretion available to it in relation to guardianship and administration matters.[92] GS, having been successful in having GAA 3093 of 2017 dismissed, does not seek her own costs; she simply says that there should have been no order reserving the costs. In essence, GS submitted that Order 2 of the orders made in GAA 3093 of 2017 on 1 August 2018 should be set aside.
5. The Tribunal's power to award costs is a statutory power, which arises in relation to a 'proceeding'. Leaving aside considerations arising out of ch III of the Constitution, there is no reason in principle why a State Parliament could not confer upon a court or tribunal (such as the Tribunal) the power to make an order for costs consequential upon an order dismissing a proceeding for want of jurisdiction. Indeed, given that a superior court (such as this Court) has jurisdiction to determine the extent of its own jurisdiction,[93] there may well be occasions where an order for costs can be made following a successful application to dismiss a matter for want of jurisdiction.[94]
6. For this reason, I would leave for another day the question as to whether the Tribunal would be unable to make a costs order in every case in which it concludes that it is without jurisdiction. In particular, given that the Tribunal's jurisdiction will, in some cases, be determined by reference to the scope of State legislation, I would leave open the question as to whether there may be circumstances in which the Tribunal could make an order for costs following a successful application to dismiss a proceeding for want of jurisdiction.[95]
7. The present case, however, is in a different category. The conclusion of the Tribunal was that it lacked jurisdiction because of a constitutional limitation. According to that conclusion (which is not challenged), the entirety of the matter was beyond the jurisdiction of the Tribunal; it could not validly support any proceeding. In those circumstances, the Tribunal ought to have concluded that it retained no residual jurisdiction in relation to costs.
8. I would, therefore, allow the appeal from the decision in GAA 3093 of 2017 and set aside Order 2.

1. In relation to the appeal from the decision in GAA 3092 of 2017, I:

(a) grant leave to appeal and an extension of time within which to appeal; and

1. In relation to the appeal from the decision in GAA 3093 of 2017, I:

(a) grant leave to appeal and an extension of time within which to appeal;

(c) set aside Order 2 made by the Tribunal on 1 August 2018.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Principal Associate to the Honourable Chief Justice Quinlan

[1] SAT Act, s 105(7). I note that there is a separate appeal regime in pt 3, div 2A and div 3 of the Guardianship Act in relation to 'determinations' made under the Guardianship Act. There was no suggestion that the orders made by the Tribunal in the present case were 'determinations' within the meaning of the Guardianship Act. Accordingly, the general rights of appeal under the SAT Act applied.

[2] Part 4 provides for applications for guardianship and administration orders, pt 5 provides for guardianship generally and pt 6 provides for administration.

[3] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [52] (Quinlan CJ, Mitchell & Pritchard JJA). The delay in commencing the appeal is adequately explained in the Affidavit of Mark Alan Richard Blundell sworn 10 October 2018. That explanation is, in essence, that GS had initially, but mistakenly, sought to review the learned Tribunal Member's decision under pt 3, div 2A of the Guardianship Act. When that mistake was identified, GS moved promptly to appeal the decision.

[4] Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 243 (Burns v Corbett).

[5] Constitution, s 75(iv).

[6] Burns v Corbett [38] (Kiefel CJ, Bell & Keane JJ)

[7] Burns v Corbett [39] (Kiefel CJ, Bell & Keane JJ).

[8] Mustac v Medical Board of Western Australia [2007] WASCA 128 [48] (Martin CJ, Wheeler & Buss JJA agreeing).

[9] See also Attorney General of New South Wales v Gatsby [2018] NSWCA 254; Attorney-General v Raschke [2019] SASCFC 83 (Raschke).

[10] GS [2018] WASAT 72 [43].

[11] GS [2018] WASAT 72 [76].

[12] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 (Boilermakers' Case).

[13] Boilermakers' Case, 270 (Dixon CJ, McTiernan, Fullagar & Kitto JJ).

[14] Boilermakers' Case, 271-272 (Dixon CJ, McTiernan, Fullagar & Kitto JJ).

[15] Insofar as State judicial power was previously able to be exercised by State courts in relation to those matters listed in s 75 and s 76, the effect of s 39(2) of the Judiciary Act 1903 is that such State courts are now invested with federal jurisdiction (exercising the judicial power of the Commonwealth) to the exclusion of any State jurisdiction: Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 [67] (Bell, Gageler, Keane, Nettle & Gordon JJ) (Rizeq).

[16] Burns v Corbett [43], [55], [64] (Kiefel CJ, Bell & Keane JJ), [119] (Gageler J).

[17] That the relevant constitutional limitation identified in Burns v Corbett is concerned with attempts by States to confer State judicial power on tribunals is made express in the formulation of the principle by Gageler J (see [119]). In the judgment of the plurality it is reflected in the expression 'adjudicative authority' [51], [52], [55] (Kiefel CJ, Bell & Keane JJ).

[18] Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 [61]-[62] (Gaudron & Gummow JJ).

[19] Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570, 603 (Mason, Murphy, Brennan & Deane JJ) (Fencott v Muller).

[20] Attorney General of New South Wales v Gatsby [2018] NSWCA 254 [97]-[137] (Bathurst CJ), [197] (Beazley P), [198]-[200] (McColl JA), [279] (Leeming JA).

[22] Section 43(2a) makes identical provision for the appointment of guardians in relation to persons between the ages of 17 and 18 years in anticipation of their attaining the age of 18 years (at which time the appointment is to come into effect).

[23] Section 45(3), s 45(4A) and s 45(4) provide a number of exceptions and limitations concerning the authority of a plenary guardian.

[31] Indeed where a specific right of enforcement is created by the Guardianship Act (the enforcement of a security given by an administrator as a requirement of an appointment), it is a right to bring proceedings in a court of competent jurisdiction (s 81).

[34] Fencott v Muller, 608 (Mason, Murphy, Brennan & Deane JJ); Rizeq [52] (Bell, Gageler, Keane, Nettle & Gordon JJ).

[35] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374 (Tasmanian Breweries).

[37] Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1, 27 (Brennan, Deane & Dawson JJ); Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 [15] (Kiefel CJ, Bell, Keane & Edelman JJ).

[39] Precision Data Holdings Ltd v Wills [1991] HCA 58; (1992) 173 CLR 167, 189 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ) (Precision Data Holdings). Precision Data Holdings was concerned with certain powers of the Corporations and Securities Panel under the Corporations Law of Victoria, which the Court held did not involve the exercise of judicial power. The same conclusion was reached in relation to the Takeovers Panel under the Corporations Act 2001 (Cth) in Attorney-General (Cth) v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542.

[40] Precision Data Holdings, 189 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).

[41] That is, a lawsuit between parties.

[42] R v Davison [1954] HCA 46; (1954) 90 CLR 353, 368 (Dixon CJ & McTiernan J) (R v Davison).

[43] Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 [30] (French CJ & Kiefel J); K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [230] (Kirby J). The earlier authorities in relation to the 'chameleon principle' were helpfully collected by Le Miere J in Re Sons of Gwalia Ltd ACN 008 994 287 (Administrators Appointed); Ex Parte Andrew John Love as Administrator of Sons of Gwalia Ltd (Administrators Appointed) [2008] WASC 75 [28] (Le Miere J).

[44] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 [339]-[344] (Kirby J, dissenting) (Thomas v Mowbray); White v Director of Military Prosecutions [2007] HCA 29; (2007) 231 CLR 570 [125] (Kirby J, dissenting).

[45] Attorney-General (Cth) v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542 [37] (Kirby J).

[46] R v Davison, 368-369 (Dixon CJ & McTiernan J).

[47] Tasmanian Breweries, 373 (Kitto J) citing Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134, 148 (Lord Simonds).

[48] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 256 (Mason CJ, Brennan & Toohey JJ) (Brandy).

[49] Brandy, 257 (Mason CJ, Brennan & Toohey JJ), 268-269 (Deane, Dawson, Gaudron & McHugh JJ).

[50] Brandy, 269-270 (Deane, Dawson, Gaudron & McHugh JJ).

[51] Attorney-General (Cth) v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542 [35] (Kirby J).

[52] Tasmanian Breweries, 374-375 (Kitto J).

[53] Precision Data Holdings, 189 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).

[54] Thomas v Mowbray [15]-[16] (Gleeson CJ).

[55] Thomas v Mowbray [17] (Gleeson CJ).

[57] See the definition of 'party' in the Guardianship Act, s 3.

[58] See, in relation to child welfare proceedings; Secretary to the Department of Human Services v Sanding (2012) 36 VR 221 [179]-[185].

[60] Brandy, 269-270 (Deane, Dawson, Gaudron & McHugh JJ).

[61] PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373 (Patrick's Case).

[64] The same view was also reached in the context of issues arising following Burns v Corbett, in tribunal proceedings in Re CQG [2018] SACAT 36 [5]-[7] and NBL [2019] NSWCATGD 5 [47]; cf Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 [214]-[215].

[65] R v Davison, 368-369 (Dixon CJ & McTiernan J).

[66] See Simpson AH, Law and Practice relating to Infants (4th ed, 1926) Chapter X; Pope HMR, Law & Practice of Lunacy (2nd ed, 1892) Chapter IX - Chapter XI (in relation to the appointment of 'committees').

[67] In a similar way, the Tribunal retains direct responsibility for persons under guardianship, including by the power to make directions (Guardianship Act, s 47) and to consent to sterilisation procedures (Guardianship Act, s 57).

[68] See Pope HMR, Law & Practice of Lunacy (2nd ed, 1892) 25.

[69] Re Eve 1986 CanLII 36 (SCC); (1986) 2 SCR 388, 410 (La Forest J).

[70] Secretary, Department of Health & Community Services v B [1992] HCA 15; (1992) 175 CLR 218 (Marion's Case)

[71] Marion's Case, 259 (Mason CJ, Dawson, Toohey & Gaudron JJ).

[72] Scott v Scott [1913] UKHL 2; [1913] AC 417 (Scott v Scott), cited in Patrick's Case [2011] VSC 327; (2011) 39 VR 373 [128] (Bell J).

[73] Scott v Scott, 437 (Viscount Haldane LC).

[74] Scott v Scott, 483 (Lord Shae of Dunfermline).

[75] Scott v Scott, 442 (Earl of Halsbury).

[76] Queen Victoria Memorial Hospital v Thornton [ 1953] HCA 11; (1953) 87 CLR 144, 151.

[77] Watson v Cameron [1928] HCA 4; (1928) 40 CLR 446; Rochford v Dayes [1989] HCA 17; (1989) 84 ALR 405, 406-407 (Gaudron J).

[78] Crouch v Commissioner for Railways [1985] HCA 69; (1985) 159 CLR 22 (Crouch); British American Tobacco v Western Australia [2003] HCA 47; (2003) 217 CLR 30 [37] (McHugh, Gummow & Hayne JJ).

[79] This being the relevant test stated in Crouch, 37 (Mason, Wilson, Brennan, Deane & Dawson JJ).

[80] The Public Trustee is both a public sector officer and a corporation sole (Public Trustee Act 1941 (WA), s 4) and is, in light of the decision in Crouch (34-36), not a 'resident' of a State.

[81] The Public Trustee must be given notice of the hearing of an application for an administration order pursuant to s 41(c)(ii) of the Guardianship Act, and thereby a 'party' as defined in s 3.

[82] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 266-267 (Knox CJ, Gavan Duffy, Powers, Rich & Starke JJ).

[83] Together with the matters referred to in s 75(iii), being suits in which the Commonwealth is a party.

[84] As to which see Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [134]-[139] (Gummow J).

[85] This, of course, also proceeds upon the assumption, contrary to my primary conclusion, that there is a 'justiciable controversy' involved in GAA 3092 of 2017.

[86] Applying the test in Crouch referred to in [1120] above.

[87] 'Party' in the Guardianship Act, s 3, includes 'a person to whom notice of an application is required by this Act to be given', rather than simply a person to whom notice has been given.

[89] Fencott v Muller, 608 (Mason, Murphy, Brennan & Deane JJ); Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 [73] (McHugh J), [140] (Gummow & Hayne JJ) (Re Wakim; Ex parte McNally).

[90] Re Wakim; Ex parte McNally [140] (Gummow & Hayne JJ).

[91] Affidavit of Mark Alan Richard Blundell sworn 10 October 2018, MAB1.

[92] Guardianship Act, s 16; SAT Act, s 87.

[93] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 598 (McTiernan J).

[94] See In re Crittendon; Ex parte The Law Institute of Victoria [1958] VicRp 19; [1958] VR 101.

[95] See Wolinski v HIA Insurance [2003] NSWSC 475.