Interstate Defamation and the Mandatory Concerns Notice: When WA Practitioners Must Comply with Another Jurisdiction’s Pre-Action Requirements

An Analysis of Aguasa v Hunter [2026] WASCA 37

1. Introduction

Aguasa v Hunter [2026] WASCA 37 is the first appellate decision in Western Australia to determine whether the mandatory concerns notice requirement under s 12B of the Defamation Act 2005 (NSW) is a substantive law for the purposes of the choice of law provision in s 11(1) of the Defamation Act 2005 (WA). The Court of Appeal (Mitchell JA, Vaughan JA, and Cobby J) unanimously held that s 12B is substantive in character, with the consequence that a plaintiff commencing defamation proceedings in Western Australia in respect of matter published wholly in New South Wales must comply with the NSW concerns notice regime before filing proceedings.

The decision is of considerable practical significance for WA defamation practitioners. Western Australia has not adopted the 2021 uniform defamation reforms enacted in New South Wales, Queensland, Victoria, South Australia, Tasmania, and the Australian Capital Territory (at [17]). Those reforms introduced, among other things, a “serious harm” element to the cause of action (s 10A), a mandatory concerns notice regime (ss 12A–12B), a public interest defence (s 29A), and the removal of the triviality defence (at [16]–[17], [84]). Until Aguasa, it was arguable—supported by the obiter reasoning of Applegarth J in Peros v Nationwide News Pty Ltd [2024] QSC 80—that a WA plaintiff could avoid the concerns notice requirement by commencing proceedings in Western Australia, treating s 12B as merely procedural and therefore not picked up by s 11(1) of the WA Act.

That argument has now been decisively rejected. The decision requires WA practitioners to identify, at the outset of any defamation retainer, the jurisdiction in which the relevant publication occurred, to ascertain whether that jurisdiction has enacted a mandatory concerns notice regime, and to comply with the requirements of that regime before issuing proceedings. Failure to do so may result in the summary dismissal of the proceedings, as occurred at first instance before Tottle J (Aguasa v Hunter [2024] WASC 380) and as was upheld on appeal.

2. Relevant Legal Framework

The choice of law provision: s 11(1) of the WA Act

Section 11(1) of the Defamation Act 2005 (WA) provides that if a matter is published wholly within a particular Australian jurisdictional area, the substantive law applicable in that area must be applied in Western Australia to determine any cause of action for defamation based on the publication. The term “Australian jurisdictional area” includes each State and Territory: s 11(5)(a).

The provision gives effect to a “no advantage” principle. As Vaughan JA explained, s 11(1) evinces a legislative choice that it is undesirable for a plaintiff to receive a substantive advantage by suing in one forum rather than another (at [92]–[93]). Importantly, the substantive law of the other jurisdiction is applied in WA by operation of the WA Act itself; the law does not operate extraterritorially as a law of the other jurisdiction (at [90]–[91]).

The distinction between substantive and procedural law

The distinction between substantive law and procedural law is fundamental to this decision and warrants brief explanation. Substantive law is concerned with the rights, duties, and obligations of parties. It determines what a party is entitled to, what defences are available, and what remedies may be granted. Procedural law, by contrast, governs the manner in which those rights and duties are enforced—the machinery of litigation. It prescribes the steps by which a party brings and conducts court proceedings, such as rules about filing, service, pleading, and evidence.

The distinction matters in a choice of law context because, when a court in one jurisdiction applies the law of another, it ordinarily applies only the substantive law of the other jurisdiction and follows its own procedural rules. A WA court hearing a defamation claim governed by NSW substantive law will apply the NSW rules about the elements of the cause of action, available defences, and quantification of damages, but will follow WA procedural rules about how the proceedings are conducted.

In practice, the line between substance and procedure is not always clear. A legislative requirement that a plaintiff take a step before commencing proceedings—such as giving a notice—sits at the boundary. If such a requirement is characterised as procedural, it forms part of the machinery of the forum court and need not be complied with where proceedings are commenced in a different jurisdiction. If it is characterised as substantive, it attaches to the cause of action itself and must be complied with wherever the proceedings are commenced. That is the central question addressed in Aguasa v Hunter.

The uniform defamation law framework

The WA and NSW Acts were enacted in 2005 as part of uniform model provisions agreed to by all State and Territory Attorneys General. They were in substantially identical terms until the NSW Act was amended by the Defamation Amendment Act 2020 (NSW), effective 1 July 2021 (at [15]–[16], [82]–[83]).

The 2020 NSW amendments

The amendments introduced several significant changes, including the serious harm element (s 10A), the mandatory concerns notice regime (ss 12A–12B), a reformed s 18 defence, an extension of the limitation period to accommodate the concerns notice process (Limitation Act 1969 (NSW), s 14B(2)–(3)), and a new public interest defence (s 29A) (at [16], [84]).

The substantive/procedural distinction

The foundational authority is John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503. The plurality identified two guiding principles: first, matters that affect the existence, extent, or enforceability of rights or duties are matters of substance; and second, rules directed to governing or regulating the mode or conduct of court proceedings are procedural (at [99]). As Vaughan JA observed, these are not alternative formulations but complementary descriptions of the same conceptual distinction (at [162]–[164]).

The key “notice before action” authority is Hamilton v Merck and Co Inc [2006] NSWCA 55, in which the NSW Court of Appeal characterised pre-commencement requirements under the Personal Injuries Proceedings Act 2002 (Qld) as procedural. Spigelman CJ recognised, however, that such a prohibition on commencement of proceedings is “capable” of constituting a substantive condition precedent where employed in a legislative scheme that creates a new right or substitutes a legislative scheme for pre-existing common law rights (at [34], [171]–[172]).

In Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66, the NSW Court of Appeal held that provisions which were integral parts of a legislative package limiting common law entitlements could not be isolated as procedural, even where they regulated the process by which the entitlement was established (at [37], [175]–[177]).

Peros v Nationwide News Pty Ltd [2024] QSC 80 was the only prior decision to directly address s 12B in the defamation context. Applegarth J held, in obiter, that s 12B of the Queensland equivalent was procedural, reasoning that it regulated the enforcement of a pre-existing common law right and was analogous to the provisions considered in Hamilton (at [50]–[58], [180]–[185]).

3. The Facts of the Case

The appellant, Ms Aguasa, commenced defamation proceedings against the respondents, Ms Hunter and Ms Cotter, in the Supreme Court of Western Australia on 29 November 2023 (at [74]). The proceedings concerned emails published by the respondents on 18 August 2023 to a third party located in New South Wales (at [1], [74]). It was an agreed fact that publication occurred wholly within New South Wales (at [1]).

It was also agreed that the appellant gave no notice—whether a concerns notice within the meaning of the NSW Act or otherwise—to either respondent prior to serving the writ of summons (at [75]).

The respondents applied to Tottle J, as case manager, to dismiss the proceedings on the ground that the appellant had failed to comply with s 12B(1) of the NSW Act (at [3], [76]–[77]). The appellant accepted that, by operation of s 11(1) of the WA Act, the substantive law of NSW applied, but contended that s 12B was procedural and therefore not picked up by s 11(1) (at [78]).

The primary judge held, with “some hesitation,” that s 12B was substantive and dismissed the proceedings (at [4], [79]–[80]).

4. Analysis of the Court’s Reasoning

The joint reasons: Mitchell JA and Cobby J

Mitchell JA and Cobby J approached the characterisation by considering the 2020 NSW amendments as a coherent legislative package. Their Honours identified four reasons why s 12B should be characterised as substantive.

First, the enactment of s 10A introduced a new element of the cause of action (serious harm), representing a substantive change to the existing law (at [41]).

Second, ss 12A and 12B restrict the right to commence proceedings for defamation. The court lacks power to excuse non-compliance with s 12B(1)(a) (the concerns notice requirement) or to permit reliance on imputations not identified in the concerns notice under s 12B(1)(b). Each of those provisions therefore concerns the “existence, extent and enforceability” of the aggrieved person’s right to commence proceedings (at [42]–[45]).

Third, the amendments to the Limitation Act 1969 (NSW) extending the limitation period to accommodate the concerns notice process are ordinarily to be characterised as substantive, consistent with John Pfeiffer (at [46]).

Fourth, the availability of the s 18 defence is conditioned upon the issue of a concerns notice. A construction of s 12B that renders the s 18 defence unavailable because no concerns notice was issued is to be avoided (at [48]–[49], [63]).

The separate reasons: Vaughan JA

Vaughan JA arrived at the same conclusion but by a different analytical route, providing separate reasons that addressed additional arguments raised by the appellant. His Honour accepted several propositions that were, in isolation, favourable to the appellant.

Vaughan JA accepted that pt 3 of the NSW Act, viewed holistically, is “distinctly more procedural than substantive” (at [203]). His Honour also accepted that, standing alone, s 12B(1)(a) does not modify or extinguish the general law right to damages for defamation; it is concerned only with the procedural means by which the cause of action is commenced (at [228]). Further, Vaughan JA accepted that the statutory purpose behind the concerns notice regime is to avoid litigation altogether, which is “distinctly procedural in nature” (at [215]–[216]).

Despite these concessions, Vaughan JA held that the determinative factor was the interaction between s 12B(1)(a) and the defence of failure to accept a reasonable offer to make amends in s 18(1) of the NSW Act. The s 18(1) defence is substantive—it provides a defence to an action, thereby precluding a remedy and affecting the enforceability of rights (at [244]). The defence is predicated on the giving of a concerns notice under s 12A (at [129], [242]). Accordingly, if s 12B(1)(a) is characterised as procedural, the s 18(1) defence becomes unavailable in proceedings commenced in WA—a result contrary to the “no advantage” principle evinced by s 11(1) of the WA Act (at [241]).

In Vaughan JA’s analysis, s 12B(1)(a) is “inseparable from and ought not be considered in isolation as fulfilling a function distinct from the substantive defence provided for in s 18(1)” (at [251]). The concerns notice regime has a “continuing consequence” for the purpose of the substantive defence; it is “an integral part of a legislative package that has as one of its key features a substantive defence in s 18(1)” (at [249]).

Departure from Peros

All members of the Court respectfully declined to follow Applegarth J’s obiter reasoning in Peros. Mitchell JA and Cobby J considered that Applegarth J’s analysis of the s 18 defence—which characterised the unavailability of the defence as merely a consequence of s 12B “simply not applying” in a rare case—was unsatisfactory (at [59]–[63]). Vaughan JA considered that Applegarth J’s reasoning on this point was grounded in the anterior extraterritoriality finding, which did not arise in the present appeal (at [254]).

5. Assessing the Consequences

Immediate procedural consequences

The immediate consequence of the decision is that defamation proceedings commenced in WA without a concerns notice compliant with the law of the place of publication will be liable to summary dismissal. This follows from the NSW Court of Appeal’s holding in Cavar v Campbelltown Catholic Club Ltd [2024] NSWCA 126 that it is “clearly correct” to summarily dismiss proceedings commenced in contravention of s 12B(1) (at [76]).

The s 18 defence

A critical practical consequence is that the s 18 defence under the NSW Act—predicated on a concerns notice having been issued—replaces the s 18 defence under the WA Act in proceedings to which s 11(1) applies. The WA Act’s s 18 defence, which requires only that the publisher made an offer “as soon as practicable after becoming aware” that the matter is or may be defamatory, will not be available. The NSW Act’s s 18 defence requires both the receipt of a concerns notice and the making of an offer within the applicable period (at [25]–[26], [127]–[129]).

Limitation period implications

Where s 11(1) of the WA Act applies to pick up NSW substantive law, the limitation provisions of the Limitation Act 1969 (NSW) will also apply by operation of s 5 of the Choice of Law (Limitation Periods) Act 1994 (WA) (at [89], [119]). This includes s 14B(2)–(3) of the Limitation Act 1969 (NSW), which extends the one-year limitation period by up to 56 days where a concerns notice is given within 56 days of the limitation period’s expiry (at [22]–[23], [117]–[118]).

Broader implications for non-reform jurisdictions

Western Australia and the Northern Territory are the only Australian jurisdictions that have not adopted the 2021 uniform defamation reforms (at [17]). The decision means that WA’s non-adoption of the reforms offers no practical advantage to a plaintiff in respect of publications occurring in reform jurisdictions. The “no advantage” principle embedded in s 11(1) of the WA Act ensures that the substantive law of the place of publication governs, regardless of the forum chosen.

6. Worked Example

Hypothetical: A Perth-based business owner discovers that a former employee has published a defamatory post on social media on 1 February 2026. The post is accessible to and read by recipients in Queensland, where the former employee resides. There is no evidence of publication outside Queensland. The business owner consults a WA lawyer on 15 March 2026.

Identification of applicable law

Publication occurred wholly within Queensland. By operation of s 11(1) of the WA Act, the substantive law of Queensland must be applied. Queensland has adopted the 2021 uniform defamation reforms. The Defamation Act 2005 (Qld) includes an equivalent mandatory concerns notice regime (ss 12A–12B) and the reformed s 18 defence.

Pre-action steps required

The lawyer must prepare and serve a concerns notice complying with s 12A of the Queensland Act. The notice must: (a) be in writing; (b) specify the location where the matter can be accessed (the social media URL); (c) inform the publisher of the defamatory imputations; and (d) inform the publisher of the serious harm to the aggrieved person’s reputation.

Timing

The limitation period is one year from publication: 1 February 2027. If the concerns notice is served by 15 March 2026, the applicable period for an offer to make amends is 28 days (s 14(2)(b)). Proceedings may not be commenced before expiry of that period unless leave is granted under s 12B(3). If the concerns notice is served within 56 days before 1 February 2027 (i.e. after 7 December 2026), the limitation period is automatically extended under the Queensland equivalent of s 14B(2)–(3).

Consequences of non-compliance

If the lawyer issues proceedings in WA without a compliant concerns notice, the defendant may apply for summary dismissal. Based on Aguasa and Cavar, such an application will succeed. The s 18 defence under the WA Act will not be available to the defendant; only the Queensland Act’s s 18 defence (requiring a concerns notice) will apply.

Defendant’s position

If a compliant concerns notice is served, the defendant should consider making an offer to make amends within the applicable period. A reasonable offer, if not accepted, provides the defendant with the substantive defence under s 18(1) of the Queensland Act. Failure to make such an offer within the applicable period forecloses the defence.

7. Practitioner Guidance: A Step-by-Step Framework

Step 1: Identify the place of publication. At the outset of every defamation retainer, determine where the relevant matter was published. If the matter was published wholly within a single Australian jurisdiction, s 11(1) of the WA Act applies and the substantive law of that jurisdiction governs. If the matter was published across multiple jurisdictions, s 11(2) applies and the law of the jurisdiction with the closest connection to the harm governs. In either case, the applicable substantive law must be ascertained before any pre-action steps are taken.

Step 2: Determine whether the applicable jurisdiction has adopted the 2021 reforms. As at the date of this article, all Australian jurisdictions except Western Australia and the Northern Territory have enacted mandatory concerns notice regimes. If the applicable jurisdiction is a reform jurisdiction, s 12B applies as a substantive law: Aguasa at [6], [73], [256].

Step 3: Prepare a compliant concerns notice. Ensure the concerns notice complies with the requirements of s 12A of the applicable jurisdiction’s legislation. This includes the serious harm requirement in s 12A(1)(a)(iv), which does not appear in the WA Act’s definition of a concerns notice (s 14(2) of the WA Act). The concerns notice must identify the imputations to be relied upon in any subsequent proceedings, as the plaintiff will be confined to those imputations or imputations substantially the same: s 12B(1)(b), s 12B(2).

Step 4: Serve the concerns notice and allow the applicable period to elapse. The applicable period for an offer to make amends is ordinarily 28 days (s 14(2)(b)). If the publisher requests further particulars under s 12A(3), the applicable period runs from 14 days after those particulars are provided (s 14(2)(a)). Proceedings cannot be commenced before the applicable period elapses, unless leave is granted under s 12B(3).

Step 5: Consider limitation period implications. If the concerns notice is served within 56 days of the one-year limitation period’s expiry, s 14B(2)–(3) of the Limitation Act 1969 (NSW) (or its equivalent) extends the limitation period automatically. Calculate the applicable dates at the outset to avoid being statute-barred. The limitation provisions apply as part of the substantive law by operation of s 5 of the Choice of Law (Limitation Periods) Act 1994 (WA): Aguasa at [89], [119].

Step 6: For defendants, respond to the concerns notice promptly. A publisher who receives a concerns notice should consider making an offer to make amends within the applicable period. The s 18(1) defence under the NSW Act requires the offer to have been made “as soon as reasonably practicable after the publisher was given a concerns notice” and “within the applicable period” (s 18(1)(a)). Delay may forfeit the defence.

Step 7: Document compliance. Retain evidence of service of the concerns notice and the date on which the applicable period elapses. If the publisher requests further particulars, retain copies of the request and the response. This documentation will be critical if the defendant challenges the validity of the concerns notice or the timing of commencement.

8. Evidence and Arguments Available to Each Side

For the plaintiff (aggrieved person)

•         Compliance evidence: Retain copies of the concerns notice, proof of service, and evidence that the applicable period elapsed before proceedings were commenced.

•         Imputation particulars: Ensure that all imputations pleaded in the statement of claim were particularised in the concerns notice, or are substantially the same as those particularised: s 12B(1)(b), s 12B(2)(b). Detailed imputation drafting at the concerns notice stage is essential, as the plaintiff will be confined to those imputations or substantially similar ones.

•         Serious harm evidence: Prepare evidence of serious harm at the concerns notice stage, as s 12A(1)(a)(iv) requires the notice to inform the publisher of the alleged serious harm. This evidence will also be required at the s 10A stage of proceedings.

•         Leave applications: If the limitation period is imminent and the applicable period has not elapsed, consider applying for leave under s 12B(3). The court may grant leave if it is just and reasonable to do so (s 12B(3)(b)) or the proceedings will be statute-barred once the applicable period has expired (s 12B(3)(a)).

For the defendant (publisher)

•         Non-compliance challenge: If proceedings are commenced without a compliant concerns notice, apply for summary dismissal. Aguasa and Cavar establish that summary dismissal is the appropriate remedy.

•         Concerns notice deficiency: Challenge the adequacy of the concerns notice under s 12A. If the notice fails to adequately particularise the information required by s 12A(1)(a)(ii)–(v), the publisher may issue a further particulars notice under s 12A(3). If the aggrieved person fails to provide reasonable further particulars within 14 days, the aggrieved person is taken not to have given a concerns notice: s 12A(5).

•         Section 18 defence: If a concerns notice is received, make an offer to make amends promptly and within the applicable period to preserve the s 18(1) defence. Document the reasonableness of the offer.

•         Imputation confinement: If the plaintiff pleads imputations not particularised in the concerns notice and not substantially the same, challenge those imputations as impermissible under s 12B(1)(b) and s 12B(2)(b). The court has no power to excuse non-compliance with s 12B(1)(b): Aguasa at [44].

9. Key Takeaways for Legal Practice

1.      Section 12B of the NSW Act is substantive. The WA Court of Appeal has unanimously held that the mandatory concerns notice requirement under s 12B of the NSW Act (and by extension, its equivalents in other reform jurisdictions) is a substantive law for the purposes of s 11(1) of the WA Act. This is now settled law in Western Australia.

2.      The concerns notice regime of the place of publication applies. Where a defamatory matter is published wholly within a reform jurisdiction, the concerns notice requirements of that jurisdiction must be complied with before proceedings are commenced in WA. A concerns notice compliant with the WA Act will not suffice if the applicable law is that of NSW, Queensland, or another reform jurisdiction.

3.      The interaction with the s 18 defence is determinative. The reasoning of both the joint judgment and Vaughan JA identifies the interaction between s 12B(1)(a) and the s 18(1) defence as a critical, and ultimately determinative, factor. The s 18 defence is substantive; characterising s 12B as procedural would render the s 18 defence unavailable, contrary to the “no advantage” principle.

4.      The WA Act’s s 18 defence is displaced. Where s 11(1) of the WA Act applies, the substantive law of the place of publication replaces the substantive law of WA. This means the WA Act’s s 18 defence—which does not require a concerns notice—is not available. It is not a mandatory law of the forum: Aguasa at [65], [151]–[153].

5.      Peros is not to be followed. The obiter reasoning of Applegarth J in Peros that s 12B is procedural has been respectfully declined by all three members of the WA Court of Appeal. Practitioners should not rely on Peros as authority for characterising s 12B as procedural.

6.      Imputation drafting at the concerns notice stage is critical. The plaintiff is confined to imputations particularised in the concerns notice, or imputations substantially the same (s 12B(1)(b), s 12B(2)). Careful and comprehensive imputation drafting at the pre-action stage is essential. The court has no power to excuse non-compliance: Aguasa at [44].

7.      Limitation period calculations must account for the concerns notice process. Practitioners must calculate the applicable period for an offer to make amends (ordinarily 28 days) and any potential extension of the limitation period under the applicable limitation legislation when planning the timing of concerns notices and proceedings.

8.      The cross-vesting legislation does not alter the analysis. The Court rejected the argument that s 11(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) could affect the characterisation of s 12B or the availability of the WA Act’s s 18 defence (at [66]–[68], [154]–[157]).

9.      WA’s non-adoption of the reforms does not insulate WA plaintiffs. The decision underscores that WA’s failure to adopt the 2021 uniform defamation reforms offers no advantage to a plaintiff whose publication occurred in a reform jurisdiction. The “no advantage” principle in s 11(1) ensures parity of substantive law regardless of the forum chosen.

10.  Broader implications for the substance/procedure distinction. The decision contributes to the developing jurisprudence on the characterisation of notice before action provisions. Vaughan JA’s detailed analysis of the principles from John Pfeiffer, Hamilton, and Wickham Freight Lines provides a structured framework for determining whether a notice before action requirement is substantive or procedural, with particular emphasis on whether the requirement interacts with other substantive provisions of the legislative regime.

10. Conclusion

Aguasa v Hunter resolves a question of significant practical importance for WA defamation practitioners. The decision establishes that the mandatory concerns notice requirement enacted by reform jurisdictions is a substantive law that applies in WA proceedings by operation of s 11(1) of the WA Act. The characterisation turns not on the procedural appearance of s 12B in isolation, but on its inseparable connection to the substantive defence in s 18(1)—a connection that gives the concerns notice regime a continuing significance well beyond the pre-action phase.

For practitioners, the core message is one of diligence at the intake stage. The jurisdiction of publication must be identified, the applicable concerns notice regime ascertained, and compliance achieved before proceedings are filed. Defendants, equally, must understand that the s 18 defence under the applicable jurisdiction—not the WA Act—governs their position, and must respond to concerns notices promptly and within the statutory timeframe.

The decision also highlights the consequences of WA’s continued divergence from the uniform defamation law framework. While WA retains the pre-reform regime for publications occurring within its borders, the practical reality is that WA practitioners are increasingly required to navigate the reformed regime when acting in respect of interstate publications. A working knowledge of the concerns notice requirements under the NSW Act and its counterparts is now indispensable.

Navigating the Intersection of Enduring Powers of Attorney, Administration Orders, and SMSF Compliance When a Member Loses Capacity

An Analysis of AC [2024] WASAT 146

1. Introduction

The decision in AC [2024] WASAT 146 addresses a problem of increasing practical significance for guardianship and administration practitioners in Western Australia: how to structure Tribunal orders when a represented person’s estate includes a self-managed superannuation fund (SMSF) and the interplay between the Guardianship and Administration Act 1990 (WA) and the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) creates constraints on the form and scope of administration orders.

The decision is notable for three reasons. First, it provides a worked example of the Tribunal varying an EPA under s 108 of the GA Act to carve out a limited role for an attorney alongside a Public Trustee appointment. Second, it applies the conflict of interest provisions in s 44(1)(b) to a partner who had used a power of attorney to purchase property in her own name with the represented person’s funds. Third, it addresses the evidentiary weight of estate planning documents executed when the represented person’s capacity was in question.

The decision warrants attention beyond the immediate parties because the combination of an SMSF, a corporate trustee, and an incapacitated member is a scenario that will arise with increasing frequency as the population ages. Practitioners advising families in these circumstances need to understand the structural limitations of the Public Trustee’s powers and the mechanisms available under the GA Act to address them.

2. Relevant Legal Framework

The Guardianship and Administration Act 1990 (WA)

The GA Act provides for the appointment of guardians and administrators for persons who, by reason of a mental disability, are unable to make reasonable judgments about their person or estate. The guiding principles in s 4 establish a presumption of capacity, require that orders be made only where necessary, and mandate the least restrictive intervention consistent with the represented person’s needs. The primary consideration in all proceedings is the best interests of the represented person, and the Tribunal must ascertain the wishes of the represented person as expressed or gathered from past actions (s 4(7)).

Section 43 provides for the appointment of a guardian where the Tribunal is satisfied that a person is incapable of looking after his or her own health and safety, unable to make reasonable judgments in respect of matters relating to his or her person, and in need of oversight, care, or control. Section 44(1) requires that a proposed guardian has consented, will act in the best interests of the represented person, is not in a position where his or her interests conflict or may conflict with those of the represented person (s 44(1)(b)), and is otherwise suitable.

Section 64(1) provides for the appointment of an administrator where the Tribunal is satisfied that a person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his or her estate, and is in need of an administrator. Section 65 confers an interim power, enabling the Tribunal to exercise such powers as may be necessary for the protection of a person’s estate pending determination of the question whether an administration order should be made.

Enduring Powers of Attorney and s 108

Part 9 of the GA Act governs enduring powers of attorney. Section 105 provides that an EPA created under the Act survives the incapacity of the donor. Section 106 empowers the Tribunal to declare that a donor does not have legal capacity and to bring an EPA into force.

Section 108 is of central importance to this decision. Subsection (1) provides that where the Tribunal makes an administration order or an order under s 65 or s 66, the Tribunal may revoke or vary an EPA. Subsection (1a) goes further: where the continued operation of an EPA would be inconsistent with the functions of the administrator, the Tribunal shall revoke the power or vary it to remove the inconsistency. Subsection (2) provides that where an administrator is appointed, the donee of the EPA is accountable to the administrator as if the administrator were the donor, and the administrator has the same power to vary or revoke the EPA as the donor would have if of full legal capacity.

The Superannuation Industry (Supervision) Act 1993 (Cth)

Section 17A of the SIS Act prescribes requirements for SMSFs. A fund is an SMSF only if each member is a trustee (or, where the trustee is a body corporate, a director of the trustee). Section 17A(3)(b)(ii) provides an exception: a member who is under a legal disability is not required to be a trustee or director if the member’s “legal personal representative” is a trustee or director in the member’s place. The SIS Act defines “legal personal representative” to include a person who holds an EPA in respect of a member of the fund.

Related Case Law

The Tribunal referred to two earlier decisions. In FY [2019] WASAT 118, the Tribunal considered the assessment of a person’s ability to make reasonable judgments about their estate by reference to their actual estate. In SAL and JGL [2016] WASAT 63, the Tribunal defined “estate” broadly to encompass the aggregate of a person’s property, assets, liabilities, and the entirety of their real and personal property and financial affairs.

3. The Facts of the Case

The represented person and his estate

AC was an 87-year-old retired businessman with a diagnosis of vascular dementia (at [1]). His estate was large and complex, comprising commercial properties (some rented), real property, bank accounts and term deposits in his sole name, a company ([redacted] Investments Pty Ltd) of which he was the sole shareholder and sole director, and an SMSF ([redacted] Superannuation Fund) of which the company was the corporate trustee (at [71]–[72]).

The medical evidence was extensive and consistent. AC had been diagnosed with vascular dementia in July 2023. His MMSE score was 15/30 in October 2023, declining to 3/10 by November 2023 and 5/30 by February 2024 (at [24]–[27]). He required full assistance with all activities of daily living, could not communicate, and had no insight into his personal care needs (at [25]–[28]).

The parties and their competing interests

MC, the applicant, described herself as AC’s de facto partner from 30 November 2020. She had previously worked as his cleaner and then became his carer during the COVID-19 pandemic (at [16]). She sought her own appointment as plenary guardian and administrator.

RC, AC’s son, held an EPA made on 23 May 2017 as part of a broader estate planning exercise that included a will with testamentary trust, a binding death benefit nomination, and an enduring power of guardianship (EPG) (at [33]–[34]). The 2017 EPA was unrestricted in its terms and styled to come into force only on a declaration by the Tribunal that AC lacked legal capacity (at [31]).

The relationship between MC and RC was acrimonious. A brief reconciliation at the second hearing in June 2024 collapsed before the third hearing in August 2024, with each opposing the other’s appointment in any form (at [14]).

The power of attorney and the property purchase

AC had made a general power of attorney in favour of MC in October 2022, but its terms specified that it did not survive his loss of capacity (at [8], [30]). Using that power, MC withdrew funds from a term deposit in AC’s sole name and purchased a property in her own name in January 2024. Her explanation was that the purchase “perfected” a gift AC had made when he undertook to redevelop her property, which had been demolished, but the redevelopment was abandoned due to problems with the builder (at [102]–[104]).

The SMSF compliance problem

The Public Trustee’s solicitor identified a significant compliance issue. On AC’s loss of capacity, his position as sole director of [redacted] Investments was vacant (at [74]–[75]). The SMSF was at risk of non-compliance with s 17A of the SIS Act because neither a trustee nor a director of the corporate trustee was a member or the legal personal representative of a member (at [74]). The Public Trustee submitted that it could not act as a director of the company (at [77], [90]).

Procedural history

The matter was heard across three hearings on 13 March, 19 June, and 28 August 2024. At the first hearing, MC was appointed limited guardian with functions in treatment and services, and the Public Trustee was appointed under s 65 on an interim basis (at [5], [10]). The administration application was adjourned for further information. RC’s application under s 106 to bring the 2017 EPA into force was filed on 17 July 2024 (at [3]). The reasons were delivered orally on 28 August 2024 and published on 1 April 2026 following AC’s death and applications for access to documents (preamble to the reasons).

4. Analysis of the Tribunal’s Reasoning

Displacement of the presumption of capacity

The Tribunal’s finding on capacity was straightforward. Member Child was satisfied on the medical evidence that AC had a significant cognitive impairment, impaired memory, and was dependent on others for all aspects of personal care and management of his affairs (at [48]). The diagnosis of vascular dementia established the “mental disability” required by s 64(1)(a), and the complexity of AC’s estate – assessed by reference to his actual estate in accordance with FY [2019] WASAT 118 – meant he lacked the intellectual ability to make the decisions required for its management (at [50]–[52]).

Guardianship: the conflict of interest under s 44(1)(b)

The more instructive aspect of the reasoning concerned the suitability of MC for appointment as guardian. The Public Advocate submitted that MC was in a position of conflict because she had potentially breached her obligations as attorney and may therefore be liable to AC’s estate (at [63]). The Tribunal accepted this submission and found that the conflict related “in particular” to the property of the represented person (at [63]).

The Tribunal’s approach was to disaggregate the guardian’s functions. MC was found suitable to exercise treatment and restrictive practices functions, as she was the primary carer and familiar with AC’s medical needs, and there was no conflict in that role (at [69]–[70]). However, the conflict precluded her appointment for accommodation and services decisions. The Public Advocate was appointed limited guardian for those functions, with the additional function of seeking information from health professionals and providing it as necessary to advance AC’s best interests (at [64]–[65], [70]).

RC was found unsuitable for appointment as guardian because of his limited involvement in AC’s direct care and his lack of knowledge of AC’s current circumstances (at [67]–[68]).

Administration: the EPA and SMSF compliance solution

The Tribunal’s reasoning on the administration order was shaped by the structural limitation that the Public Trustee could not act as a director of [redacted] Investments (at [77], [90]). This meant that the appointment of the Public Trustee as plenary administrator – the outcome sought by MC – would not resolve the SMSF compliance problem.

The solution adopted was a composite one. The 2017 EPA was brought into force under s 106, but varied under s 108(1) and s 108(1a) to confine the attorney’s powers to four specified matters: rights and functions as a member or beneficiary of the SMSF; the office of trustee of the Fund; the office of director of the company in its capacity as trustee; and the management of specified commercial properties (at Orders 3–4). The Public Trustee was appointed limited administrator with plenary authority save for those reserved powers (at Order 5).

The legal reasoning proceeds in steps. First, the Public Trustee’s submission was that the SIS Act definition of “legal personal representative” includes a person who holds an EPA in respect of a member – and that a limited administrator may not qualify (at [78]–[79]). Second, s 108(1a) requires the Tribunal to vary an EPA to remove any inconsistency with the administrator’s functions. Third, the variation was drafted to limit the EPA to those functions that the Public Trustee could not perform, thus avoiding the inconsistency while maintaining SIS Act compliance (at [80], [89]–[93]).

The 2022 documents and the question of wishes

The Tribunal addressed the competing evidence of AC’s wishes with care. The 2022 will referred to estrangement from RC commencing in 2015, but this was inconsistent with the 2017 estate planning documents by which AC appointed RC as his attorney and guardian (at [84]). The Public Advocate submitted that questions arose about AC’s capacity to give instructions in 2022, given these anomalies (at [85]). The Tribunal concluded that it could not place weight on the 2022 will as a true reflection of AC’s wishes (at [108]).

Conversely, the 2017 EPA was made before any suggestion of cognitive impairment and as part of a comprehensive estate planning exercise conducted through solicitors (at [88]). The Tribunal treated it as an expression of AC’s wishes at a time when his capacity was not in question.

5. Assessing the Consequences

Structural consequences of the orders

The orders made in AC created a tripartite decision-making structure: MC as limited guardian for treatment and restrictive practices; the Public Advocate as limited guardian for accommodation, services, and information-sharing; and a split administration between RC as attorney (for the SMSF, corporate trustee, and specified properties) and the Public Trustee as limited administrator (for all other aspects of the estate, including day-to-day maintenance, investigation of the alleged misappropriation, and any litigation).

Practical implications for SMSF compliance

The decision demonstrates that where an SMSF member loses capacity and the fund’s corporate trustee has only one director (the member), the fund will be non-compliant unless the member’s legal personal representative is appointed as a trustee or director. Because the Public Trustee cannot act as a director of a private company, an EPA is the most practical mechanism to achieve compliance. If no EPA exists, or if it does not extend to SMSF-related functions, the fund may face prolonged non-compliance and regulatory consequences.

Implications of the alleged misappropriation

The Tribunal found that MC’s purchase of property in her own name using AC’s funds, while holding a general power of attorney and acknowledging AC’s incapacity, may amount to a breach of fiduciary duty (at [105]). The Public Trustee’s appointment was directed in part at investigating this allegation (at [94], [99], [105]). MC remains accountable to the Public Trustee, who holds the same power to vary or revoke the EPA as the donor would have at full capacity (s 108(2)).

Financial consequences

The orders directed RC as attorney to place the Public Trustee in funds and to reimburse costs and expenses from AC’s resources (at Order 7). The Public Trustee was authorised to apply AC’s funds for the maintenance and benefit of both AC and MC (at Order 8). The maximum review period of five years was imposed given the progressive nature of AC’s condition (at [111]).

6. Worked Example

Consider the following hypothetical, adapted from the facts of AC.

Scenario: David, aged 82, is diagnosed with moderate Alzheimer’s disease. He is the sole member, sole shareholder, and sole director of DK Pty Ltd, the corporate trustee of his SMSF. The SMSF holds two commercial properties and a share portfolio worth a total of $3.2 million. David’s personal estate includes a residential property, bank accounts, and term deposits worth approximately $1.5 million. David made an EPA in 2018 appointing his daughter, Emma, as his sole attorney, but the EPA is unrestricted and does not specifically reference the SMSF or the company. David’s second wife, Fiona, has been his primary carer for the past four years. Fiona applies for her appointment as plenary guardian and administrator.

Analysis from Fiona’s perspective (applicant)

Fiona’s strongest case is for appointment as guardian with treatment and care-related functions, given her role as primary carer. However, following AC, if there is any allegation that Fiona has used David’s funds for her own benefit, or any basis for suggesting a conflict of interest, s 44(1)(b) may preclude her appointment for accommodation and financial decisions. Fiona’s application for plenary administration is unlikely to succeed if the estate includes an SMSF, because she cannot resolve the compliance issue unless she holds an EPA.

Analysis from Emma’s perspective (attorney)

Emma’s position is that the 2018 EPA should be brought into force under s 106 and should operate as a less restrictive alternative to administration. However, following AC, the Tribunal is unlikely to accept that an unrestricted EPA can operate on its own where there is family conflict and the estate is complex. The probable outcome is a variation of the EPA under s 108 to confine Emma’s powers to SMSF-related functions (and perhaps property management), with the Public Trustee appointed as limited administrator for the balance of the estate.

The SMSF compliance pathway

The practitioner advising Emma should ensure the s 106 application is filed promptly, as the SMSF is non-compliant from the date David’s directorship is vacant. The proposed variation of the EPA should be drafted to expressly address s 17A of the SIS Act and to include authority to act as a director of DK Pty Ltd in its capacity as trustee. The variation should mirror the formulation in the AC orders, specifying the attorney’s authority in relation to membership and beneficial interests, the office of trustee, the office of director, and any ancillary powers required.

7. Practitioner Guidance: A Step-by-Step Framework

The following framework is derived from the Tribunal’s approach in AC and is intended for practitioners advising clients where the represented person’s estate includes an SMSF with a corporate trustee.

Identify the SMSF structure early. At the outset of any guardianship or administration matter, ascertain whether the represented person is a member of an SMSF and, if so, the identity and structure of the trustee. If the trustee is a body corporate and the represented person is the sole director, the compliance problem identified in AC will arise on loss of capacity (at [74]–[75]).

Locate and assess existing estate planning instruments. Determine whether there is an EPA in force or capable of being brought into force, an EPG, a will with testamentary trust, and a binding death benefit nomination. Note the terms and date of execution of each instrument. If the EPA is unrestricted, it will likely require variation under s 108 if an administration order is also made (at [80], [101]).

Assess the Public Trustee’s capacity to act. Confirm whether the Public Trustee is able to act as a director of the corporate trustee. The position in AC was that the Public Trustee could not do so (at [77], [90]). If this remains the position, the EPA is the primary mechanism for achieving SMSF compliance.

File a s 106 application promptly. If the EPA is styled to take effect only on a Tribunal declaration, file the s 106 application as early as possible. Delay extends the period of SMSF non-compliance. The application should be accompanied by a minute of proposed orders that addresses the variation required under s 108 (at [40]).

Draft the EPA variation with specificity. The variation should expressly address the attorney’s authority in relation to: (a) rights as a member or beneficiary of the fund; (b) the office of trustee; (c) the office of director of the corporate trustee, including the power to appoint a director; and (d) management of any real property held by the fund or specified in the EPA. The formulation in the AC orders provides a precedent (at Orders 3–4).

Address potential conflicts of interest. Assess whether any proposed guardian or administrator has a conflict of interest under s 44(1)(b). If the partner or carer has used the represented person’s funds for personal benefit, this will likely disqualify them from appointment for financial or accommodation functions, even if they remain suitable for treatment decisions (at [63], [69]–[70]).

Consider the role of the Public Advocate. Where there is family conflict, the Public Advocate may be the appropriate appointee for accommodation and services decisions, and for information-sharing functions that reduce tension between the parties (at [64]–[65], [70]).

Prepare for accountability obligations. Advise the attorney that under s 108(2), they are accountable to the administrator as if the administrator were the donor. The administrator has the power to vary or revoke the EPA. The attorney should maintain detailed records of all transactions and decisions made under the EPA (at [110]).

8. Evidence and Arguments Available to Each Side

For the applicant seeking appointment as guardian and/or administrator

The applicant in a comparable matter should lead evidence of their role as primary carer, familiarity with the represented person’s medical needs, and the practical difficulties of managing care without formal legal authority. The letter from the dementia support specialist in AC was relied upon in support of the initial guardianship order (at [17]–[18]). Evidence of cohabitation and the nature of the relationship will be relevant to the question of suitability.

However, the applicant must address any allegation of conflict of interest squarely. If the applicant has used the represented person’s funds for personal benefit, an explanation should be prepared in advance, supported by documentary evidence. The Tribunal in AC considered MC’s explanation that the property purchase “perfected” an earlier gift, but found a prima facie breach of fiduciary duty (at [103]–[105]). An applicant in this position should consider whether a regularisation proposal (such as returning equivalent value to the estate) can be advanced.

For the attorney seeking to act under an EPA

The attorney should demonstrate knowledge of the represented person’s estate and financial affairs. In AC, RC’s detailed understanding of his father’s financial affairs at the second hearing was a factor in the Tribunal’s satisfaction that he could operate under the EPA (at [97]). The attorney should file a minute of proposed orders early, addressing the s 108 variation and the SMSF compliance mechanism. Expert evidence or submissions on the SIS Act requirements may assist.

The attorney should also address any allegation that the represented person’s wishes have changed since the EPA was made. The Tribunal’s approach in AC was to give weight to the 2017 estate planning documents (made with legal advice and at a time of unquestioned capacity) over the 2022 will and power of attorney (made at a time when capacity was doubtful and the content was internally inconsistent) (at [84]–[85], [108]).

For the Public Advocate or Public Trustee

The Public Advocate’s role in AC was critical. The investigator’s reports provided the evidentiary foundation for the conflict of interest finding and the recommendation for an independent administrator. Practitioners should consider requesting a referral to the Public Advocate for investigation where allegations of financial mismanagement are made, as the Public Advocate’s report carries significant weight with the Tribunal.

The Public Trustee’s submissions on the SIS Act were determinative of the form of the orders. Practitioners acting for or against the Public Trustee should be prepared to address the structural limitations of the Public Trustee’s powers and the interaction with Commonwealth superannuation legislation.

9. Key Takeaways for Legal Practice

The Public Trustee cannot act as a director of a private company. This structural limitation means that where an SMSF is held through a corporate trustee and the represented person is the sole director, the Public Trustee alone cannot bring the fund into compliance with s 17A of the SIS Act. An EPA is the most practical alternative mechanism (at [77], [90]).

Section 108 of the GA Act mandates variation of an EPA where inconsistency arises with an administration order. The obligation under s 108(1a) is mandatory (“shall”). Practitioners must draft the EPA variation with sufficient specificity to delineate the attorney’s powers from the administrator’s functions, avoiding overlap and potential conflict (at [101]).

An EPA holder may qualify as a “legal personal representative” under the SIS Act. Section 17A(3)(b)(ii) of the SIS Act permits a legal personal representative to act as trustee or director in place of an incapacitated member. A person holding an EPA satisfies this definition, whereas there is doubt whether a limited administrator would (at [78]–[79]).

Conflict of interest under s 44(1)(b) can be addressed by disaggregating guardian functions. A person may be suitable for appointment as guardian with some functions (such as treatment) but disqualified from others (such as accommodation) where there is a conflict. The Tribunal’s approach in AC was to split functions between the partner and the Public Advocate (at [69]–[70]).

Use of a donor’s funds to purchase property in an attorney’s own name raises a prima facie breach of fiduciary duty. Even where the attorney offers an explanation (such as perfecting an earlier gift), the Tribunal may find the conduct gives rise to a conflict warranting an independent investigation by the Public Trustee (at [102]–[105]).

Estate planning documents executed when capacity is questionable may be given reduced weight. The Tribunal in AC declined to place weight on the 2022 will because of internal inconsistencies and doubts about the represented person’s capacity at the time of execution, preferring the 2017 instruments made with legal advice and at a time of unquestioned capacity (at [84]–[85], [108]).

An enduring power of guardianship that cannot be produced in completed form cannot operate as a less restrictive alternative. The GA Act requires execution and a signed acceptance. Where the completed document cannot be produced, the Tribunal will not rely on it as a basis for declining to make a guardianship order (at [58]–[59]).

Estate planners should ensure EPAs specifically address SMSF functions. The compliance problem in AC could have been mitigated at the planning stage if the 2017 EPA had expressly addressed the attorney’s authority in relation to the SMSF, the corporate trustee, and the directorship. Practitioners drafting EPAs for clients with SMSFs should include these provisions as a matter of course.

The involvement of a neutral administrator can reduce family conflict. The Tribunal’s approach of appointing the Public Trustee to manage day-to-day finances and maintenance – removing the attorney’s responsibility to provide an allowance to the partner – was directed at reducing contact points for conflict between family members (at [96], [107]).

10. Conclusion

AC [2024] WASAT 146 provides important guidance at the intersection of state guardianship legislation and Commonwealth superannuation regulation. Where a represented person’s estate includes an SMSF with a corporate trustee, the appointment of an administrator alone may not resolve compliance issues under the SIS Act. The Tribunal’s use of s 108 to vary an EPA – confining the attorney’s powers to SMSF-related functions while appointing the Public Trustee for the balance of the estate – provides a workable template for analogous cases.

The decision also reinforces the significance of the conflict of interest provisions in s 44(1)(b) and the Tribunal’s willingness to disaggregate guardian functions to manage conflicts. Practitioners should be alert to the possibility that a person who is suitable for one category of guardian function may be disqualified from another.

For estate planners, the decision underscores the importance of drafting EPAs with sufficient specificity to address SMSF-related functions, corporate trustee directorships, and the interaction with Commonwealth legislation. An EPA that does not address these matters may require variation by the Tribunal at a time of family conflict – a situation that careful planning could avoid.

Note: All names used in this article are pseudonyms assigned by the Tribunal. The judgment was published under those pseudonyms in accordance with the standard practice of the State Administrative Tribunal in proceedings brought under the Guardianship and Administration Act 1990 (WA) to protect the privacy of the represented person. No details in this article identify or are intended to identify any party, witness, or associated person.

Sterilisation of Males Under Guardianship: The Risk Threshold and the Best Interests Test

An Analysis of AB [2026] WASAT 31

1. Introduction

In AB [2026] WASAT 31, the State Administrative Tribunal (SAT) refused an application by a represented person’s guardian for the Tribunal’s consent to the carrying out of a vasectomy under s 59(1) of the Guardianship and Administration Act 1990 (WA) (GA Act). The decision is notable for several reasons. It is only the second reported case in which a Tribunal has been required to determine whether to consent to the sterilisation of a male represented person by vasectomy, following JC [2026] WASAT 13 delivered only weeks earlier. More significantly, it crystallises the practical threshold of risk that must be established before sterilisation can be found to be in a represented person’s best interests.

The majority’s reasoning establishes that, even where the psychological consequences of fatherhood would be catastrophic for the represented person, sterilisation will not be authorised where the current risk of sexual activity is assessed as negligible. The dissenting opinion of Dr Winterton provides a counterpoint, reasoning that even a low-probability risk justifies sterilisation where the severity of the consequence is sufficiently grave. This divergence on risk tolerance has direct implications for the way practitioners advise guardians contemplating such applications.

The decision warrants attention from practitioners in guardianship and administration, disability law, and health law. It provides a comprehensive worked example of the multi-factorial best interests analysis required by s 63 of the GA Act, and demonstrates the Tribunal’s insistence that sterilisation remains a measure of last resort—even where the represented person’s own expressed wishes appear to favour it.

2. Relevant Legal Framework

2.1 The Statutory Scheme

The sterilisation of a represented person is governed by Division 3 of Part 5 of the GA Act. Section 57(1) makes it an offence to carry out a sterilisation procedure on a represented person unless specified requirements are met. Those requirements, as summarised by the Tribunal at [7], are threefold: (a) both the guardian and the Tribunal must have consented in writing; (b) all rights of appeal under s 63 must have lapsed or been exhausted; and (c) the sterilisation must be carried out in accordance with any conditions imposed under the GA Act.

Section 58(1) prohibits the guardian from consenting until the Tribunal’s consent is first obtained. Section 56A requires that any decision on a sterilisation application be made by a Full Tribunal, defined in s 3 as the President or a Deputy President together with two other members. These procedural safeguards reflect the gravity of sterilisation decisions and the inherent difficulty in disentangling the represented person’s interests from those of their carers (at [5]).

Section 63 provides the substantive test: the Tribunal may consent to sterilisation if it is satisfied that sterilisation is in the best interests of the represented person. The GA Act does not prescribe the matters that must be considered in applying this test (at [8]).

Notably, the definition of “procedure for the sterilisation” in s 56 excludes a lawful procedure carried out for a lawful purpose other than sterilisation that incidentally results, or may result, in sterilisation. As the Tribunal in EW [2021] WASAT 111 identified, to “sterilise” means to deprive a person of fecundity or to render them incapable of producing offspring (at [10]).

2.2 The Common Law Framework

The leading authority on the sterilisation of persons with intellectual disability remains Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion’s Case). Although that decision concerned a child, its principles have been adopted in the guardianship context. Brennan J held that sterilisation required “compelling justification” (at 268–269). The majority held that sterilisation was a “step of last resort” to be undertaken only when alternative and less invasive procedures had failed or it was certain that no other treatment would work (at 259–260).

In Re Jane (1988) 94 FLR 1, the Family Court similarly emphasised the seriousness of sterilisation and the need for rigorous scrutiny of the justification advanced.

In EW [2021] WASAT 111, the Tribunal held that if there is no real likelihood that a represented person will engage in sexual activity, it is difficult to see how the sterilisation procedure could be necessary and in their best interests (at [82]). This proposition was adopted in JC [2026] WASAT 13 at [39] and again in the present case at [9].

The Tribunal in JC developed a comprehensive ten-factor framework for assessing sterilisation applications, which was adopted in full in AB at [8]. That framework is discussed in detail at Section 4 below.

Finally, the Tribunal at [7] cited the observation of O’Brien J in Director Clinical Services, Child & Adolescent Health Services and Kiszko [2016] FCWA 75; (2016) 312 FLR 319 at [101], that the determination of best interests is “not a precise science” but rather “multifaceted and complex” and “susceptible to very different conclusions being drawn by different people of equal compassion, sincerity and integrity.”

3. The Facts of the Case

3.1 The Represented Person

AB is a 19-year-old male with a severe intellectual disability and autism spectrum disorder, diagnosed in early childhood. His cognitive capacity has been assessed as equivalent to that of a child between 5 and 7 years old. These conditions are static and not expected to improve (at [16]). AB also has a number of other chronic health conditions (at [16](d)).

AB’s parents have been appointed as his limited guardians with functions including the power to make treatment decisions, subject to Division 3 of Part 5 of the GA Act (at [10]).

3.2 The Application

AB’s mother applied under s 59(1) for the Tribunal’s consent to a vasectomy. AB’s father supported the application. The vasectomy was proposed to be carried out at the same time as a cystoscopy that AB required to investigate a possible urethral stricture, thereby avoiding a second anaesthetic and hospital admission (at [19]).

3.3 The Evidence

The Tribunal received oral evidence from AB, his parents, his general practitioner (the GP), and an investigator appointed by the Public Advocate (the Investigator). Documentary evidence included a joint statement from AB’s parents, reports from the GP, the treating urologist (the Urologist), a psychologist (the Psychologist) and a functional capacity report (at [13]).

3.4 Key Factual Findings

The Tribunal made the following material findings of fact:

Capacity. AB has no understanding, nor any capacity to understand, the purpose of a vasectomy, its permanent implications, the surgical steps involved, its risks, or post-operative requirements (at [16](e)). He does not have the intellectual capacity to make a reasonable decision about whether to undergo the procedure (at [18]).

Expressed wishes. AB has consistently said that he does not want children, telling his GP, the Urologist and the Psychologist on multiple occasions that he is “retired from having children.” He told the Tribunal that the idea of children made him feel “very sad” and “useless” (at [28]–[31]). The topic causes him marked distress, including visible physical manifestations: bending over, covering his head, rocking, and ultimately leaving the hearing room (at [32]).

Effect of fatherhood. The Psychologist expressed the view that AB was likely to suffer “serious and unmanageable trauma” and a “catastrophic collapse” in the event of unplanned fatherhood (at [38]). The Tribunal accepted this evidence and found that if AB fathered a child and became aware of that fact, he would experience distress that would be “psychologically damaging and have a seriously adverse impact on his capacity to function” (at [41]).

Sexual understanding and activity. AB does not understand the concept of sex, has no understanding of its consequences, and has expressed no desire for a sexual relationship (at [48]–[50]). He does experience sexual arousal and is physically capable of forming and maintaining an erection (at [44]–[45]). The Tribunal found that the risk of AB initiating sexual activity was “negligible” (at [50]).

Vulnerability. AB is extremely vulnerable to exploitation. He has a tendency to comply with others’ wishes in order to please and be liked (at [56]–[57]). The Psychologist considered that his intellectual disability and lack of awareness of risk made him “particularly vulnerable to sexual exploitation” (at [58]).

Former relationship. AB had a long relationship with a girl with an intellectual disability, lasting approximately two to three years, which ended shortly before the hearing. The relationship had no sexual component. However, at one point the girlfriend announced that “they wanted to have sex.” AB’s parents managed this by ensuring they were not left alone (at [66]–[68]).

Supervision. AB requires almost constant care. He attends structured activities on five days per week and lives with his parents. He is left alone for short periods but does not tend to stray far from his home (at [60]–[61]). His parents have plans to place him in a supported living facility in the coming years (at [51]).

Alternative contraception. The only alternative contraceptive measure—the use of condoms—requires organisational capacity beyond AB’s abilities (at [23]). The Tribunal found there were no reasonable alternative contraceptive measures available (at [24]).

4. Analysis of the Tribunal’s Reasoning

4.1 The Ten-Factor Framework

The Tribunal adopted the ten-factor framework articulated in JC at [37] for assessing whether sterilisation is in the represented person’s best interests (at [8]). That framework addresses: (a) the represented person’s views about having children; (b) the likelihood of changing those views; (c) the likelihood of the represented person having children without the procedure; (d) the likely effect on the represented person if a child were conceived; (e) the extent of physical invasion and effect on self-perception; (f) risks and side effects; (g) availability of alternative contraceptive measures; (h) the likelihood of future improvement in capacity; (i) the likelihood of development of alternative contraception; and (j) whether the application is made in good faith.

4.2 The Majority’s Reasoning

The majority (Judge Vernon, Deputy President, and Member Sadleir) accepted that several factors favoured granting consent. They found that the psychological harm to AB from fatherhood would be catastrophic (at [41]); that AB consistently expressed a wish not to have children (at [33]); that there were no reasonable alternative contraceptive measures (at [24]); that a vasectomy carried relatively low surgical risk, especially if performed concurrently with the cystoscopy (at [21]); and that the application was made in good faith (at [79]).

However, the majority identified the “crucial issue” as whether there was any real prospect that AB might father a child, either at the present time or in the reasonably foreseeable future, such that the adverse consequences might eventuate (at [42]). On this critical question, the majority found that it was “highly unlikely” that AB would engage in sexual relations with a female (at [78]). This finding rested on three pillars: AB’s demonstrated lack of interest in sexual activity (at [50]); his current level of supervision (at [60]–[61]); and the evidence that his parents had managed the risk during his prior relationship (at [73], [76]).

The majority acknowledged two potential pathways to AB fathering a child. The first was sexual assault by a person with intellectual capacity. The Tribunal dismissed this as a basis for sterilisation, reasoning that a vasectomy would not lessen the risk of sexual assault itself, and that it was “highly unlikely” that AB would ever become aware of any child conceived in such circumstances (at [64]–[65]). The second was consensual activity with a female partner with an intellectual disability. The Tribunal accepted that AB was capable of forming such a relationship and that there were reasonable prospects he would do so in the future (at [71]). However, the evidence showed that AB’s prior relationship had no sexual component, and that the risk had been managed by parental supervision (at [73]).

Critically, the majority held that the level of supervision AB currently required would not be “significantly reduced” by a vasectomy (at [75]–[76]). AB’s mother herself described the benefit of a vasectomy as only removing an additional “layer” of monitoring and allowing them to step back “slightly” (at [74]). The majority concluded that the concern about the effect of AB’s likely distress if he became aware of fathering a child was “insufficient to support a finding that the sterilisation procedure is in his best interests” given the very low probability of the triggering event (at [78]).

The majority also considered and dismissed several subsidiary arguments. The possibility of AB passing on a genetic condition to any child lacked supporting medical evidence and was therefore speculative (at [86]–[89]). The stress placed on AB’s parents by their worry was a relevant but insufficient consideration (at [90]–[92]). The possibility of a child making a claim on AB’s estate could be addressed through estate planning (at [95]).

4.3 The Dissenting Opinion

Dr Winterton, Senior Sessional Member, agreed with the majority’s statement of the law and findings of fact but reached a different conclusion (at [100]). Dr Winterton reasoned that because AB was capable of entering into a relationship with a woman and there were reasonable prospects he would do so in the future, sexual intercourse “may happen, with the risk of pregnancy following” (at [102]). Given the finding that AB would experience a high level of distress if he fathered a child, with potentially significant consequences for his functioning, Dr Winterton considered it was in AB’s best interest to undergo a vasectomy now.

Additionally, Dr Winterton identified a quality-of-life argument: on the evidence, AB may be given more freedom to interact with a female partner, including engaging in sexual intercourse, if there were no risk of his fathering a child (at [103]). In Dr Winterton’s view, this may result in AB having a greater quality of life.

The divergence between the majority and the dissent reflects a fundamental difference in risk tolerance. The majority required a real prospect of the feared event occurring before sterilisation could be justified. Dr Winterton appears to have applied a lower threshold, accepting that the possibility of the event occurring, when combined with the severity of its consequences, was sufficient.

5. Assessing the Consequences

The practical consequences of the majority’s approach are significant for future sterilisation applications.

The risk threshold. The majority’s reasoning establishes that the test under s 63 is not simply whether sterilisation would remove a risk of harm. Rather, the risk of the harm materialising must itself be assessed, and where that risk is low, the severity of the consequences is not determinative. This is consistent with the “step of last resort” principle from Marion’s Case, but applies it in a way that may be uncomfortable for guardians who perceive even a small probability of catastrophic harm as warranting preventive action.

Supervision as a mitigating factor. The majority placed significant weight on the fact that AB’s current supervision arrangements effectively managed the risk of sexual activity. This creates a tension for practitioners: on the one hand, evidence of effective supervision reduces the assessed risk and militates against sterilisation; on the other hand, it imposes an ongoing supervisory burden on carers that sterilisation might alleviate. The majority resolved this tension by finding that AB required constant care in any event, so a vasectomy would not materially reduce the supervision required (at [75]–[76]).

The door left open. The majority expressly noted that AB is a young man whose circumstances may change, and that if a relevant change occurs, his parents may make a further application (at [98]). This indicates that a sterilisation application is not assessed on a once-and-for-all basis but is responsive to evolving circumstances. A change such as AB entering a supported living facility with less intensive supervision, or forming a relationship with a sexual component, could provide the factual foundation for a renewed application.

The sexual assault pathway. The majority’s treatment of the sexual assault concern is significant. By finding that a vasectomy would not reduce the risk of sexual assault itself, and that AB would be unlikely to become aware of any child conceived by sexual assault, the Tribunal effectively foreclosed reliance on the sexual assault pathway as a justification for sterilisation in most cases (at [64]–[65]).

6. Worked Example

Consider the following hypothetical. CD is a 28-year-old female with a moderate intellectual disability. She has a cognitive capacity equivalent to a 10-year-old. CD lives in a supported living facility with overnight staff supervision but is largely unsupervised during daytime activities. CD has been in a relationship with a male resident of the same facility for approximately 12 months. Staff have observed physical affection between them, including kissing and embracing, and have on one occasion found them together in CD’s bedroom with the door closed. CD has told staff that she and her partner “love each other.” CD’s guardian, her sister, applies for the Tribunal’s consent to a sterilisation procedure.

Arguments for the applicant

Applying the ten-factor framework from JC as adopted in AB, the applicant would emphasise the following. Unlike AB, CD is in an active relationship with a sexual component that is progressing toward intercourse. The level of supervision, while present, has not prevented intimate contact. CD’s cognitive capacity, while higher than AB’s, is insufficient to understand the responsibilities of parenthood or to use contraception independently. The risk of CD engaging in unprotected sexual activity is not merely theoretical but is supported by direct observational evidence. The consequences of an unplanned pregnancy for CD—including the physical demands of pregnancy, the psychological impact, and the potential removal of a child by child protection authorities—would be severe. Unlike in AB, the current supervisory arrangements have not effectively managed the risk.

Arguments for the Public Advocate or represented person

The respondent would argue that CD’s higher cognitive capacity means there is a greater prospect that she can be taught to use contraception, such as an implant or injection, which would be less invasive and reversible. The fact that CD appears to welcome the relationship and expresses affection for her partner raises the possibility that she may, in the future, wish to have children, and at 28 she is still of an age where that wish could emerge. A long-acting reversible contraceptive could be trialled before the “last resort” of sterilisation is pursued. The respondent would also argue that sterilisation does not protect against sexually transmitted infections and that the facility’s supervisory arrangements should be improved rather than CD’s reproductive capacity permanently removed.

On the majority’s reasoning in AB, this hypothetical is distinguishable. The real prospect of sexual activity—the factor that was absent in AB’s case—is present. However, the availability of alternative, less invasive contraceptive measures may still mean that sterilisation is not a step of last resort, depending on whether a trial of such measures has been undertaken.

7. Practitioner Guidance: A Step-by-Step Framework

The following framework is derived from the principles established in AB, read with JC, EW and Marion’s Case.

Step 1: Confirm jurisdiction and standing. Verify that a guardianship order is in force and that the applicant is the represented person, the guardian, or the Public Advocate (s 59(1)). Confirm that the guardian’s functions include treatment decisions subject to Division 3 of Part 5 (at [10]).

Step 2: Obtain expert evidence on the nature of the procedure. Secure a report from the treating specialist addressing the procedure, its permanence, risks, side effects, and whether reversal is feasible. If the procedure can be combined with another medically necessary procedure to reduce the burden on the represented person, that should be documented (at [19]).

Step 3: Assess the represented person’s capacity and views. Obtain evidence, ideally from a psychologist or psychiatrist, as to the represented person’s cognitive capacity, whether they understand the concept and consequences of sterilisation, and their expressed wishes regarding having children. Note that the represented person’s wishes are relevant but not determinative where they lack the capacity to understand the implications (at [36]).

Step 4: Assess the likelihood of sexual activity. This is the critical threshold question. Gather evidence addressing whether the represented person has any understanding of sexual activity, whether they have expressed any desire for sexual relationships, whether they are in or have been in a relationship with a sexual component, and whether they have engaged in any sexually motivated behaviour. The Tribunal’s reasoning in both EW (at [82]) and AB (at [42]) makes clear that without a “real prospect” of sexual activity, sterilisation is unlikely to be found to be in the represented person’s best interests.

Step 5: Assess the consequences of the represented person having a child. Obtain psychological evidence addressing the likely effect on the represented person of learning they had become a parent. The Tribunal gave significant weight to evidence of likely “catastrophic collapse” in AB’s case (at [38]), and identified this as the most important factor favouring consent (at [37]). However, this factor alone is insufficient without a corresponding finding of real risk.

Step 6: Investigate alternative contraceptive measures. Identify all available alternatives to sterilisation, assess whether the represented person is capable of using them, and determine whether any have been tried and failed. Sterilisation is a step of last resort (Marion’s Case at 259–260). The absence of any reasonable alternative strengthens the application (at [24]).

Step 7: Address the supervision context. Be aware that evidence of effective supervisory arrangements may cut both ways. Where current supervision effectively manages the risk, the Tribunal may conclude that sterilisation is unnecessary (at [76]). Conversely, if a change in living arrangements is imminent that will reduce the level of supervision, this should be documented and evidenced.

Step 8: Demonstrate good faith. Ensure the application clearly distinguishes between the represented person’s interests and the interests of the guardian or family members. The Tribunal is alert to the difficulty of disentangling these interests (at [5]). Be prepared for the Tribunal to scrutinise subsidiary concerns—such as the financial burden of raising a grandchild, claims on the represented person’s estate, or the inconvenience of supervising the represented person—and to assess whether these are properly characterised as concerns about the represented person’s welfare.

Step 9: Engage with the Public Advocate. The Tribunal may request the Public Advocate to provide an independent view of the represented person’s best interests (at [12]). Practitioners should co-operate with the Public Advocate’s investigator and provide access to the represented person. The investigator’s evidence may carry significant weight, particularly where it provides independent corroboration of the clinical evidence.

Step 10: Consider timing and changed circumstances. If the application is likely to fail on the current evidence, consider whether it is premature. The Tribunal in AB expressly left open the possibility of a further application if circumstances change (at [98]). A change in the represented person’s living arrangements, the development of a relationship with a sexual component, or the failure of alternative contraceptive measures may provide a stronger factual foundation.

8. Evidence and Arguments Available to Each Side

8.1 Arguments for the Applicant (Guardian)

Practitioners acting for a guardian should focus on the following categories of evidence and argument:

Severity of consequences. Psychological and psychiatric evidence demonstrating the likely impact on the represented person of learning they had become a parent. In AB, the Psychologist’s evidence of “catastrophic collapse” was accepted in full (at [38]), and the majority acknowledged this as the “most important consideration” in favour of consent (at [37]).

Vulnerability to exploitation. Evidence that the represented person is susceptible to suggestion, unable to recognise unsafe situations, and may acquiesce to sexual activity without genuine consent. This was accepted in AB (at [59]) but was insufficient without a corresponding finding of real risk.

Absence of alternatives. Evidence that the represented person is unable to use any available contraceptive measure independently. Where condoms are the only alternative and the represented person lacks the organisational capacity to use them, this factor is established (at [23]–[24]).

Anticipated change in supervision. If a move to a supported living facility or other change in living arrangements is planned, evidence that the represented person will be subject to less intensive supervision and correspondingly greater exposure to the risk of sexual activity. In AB, the anticipated move was “at least a few years away” (at [63]), which limited its weight.

Expressed wishes. Where the represented person has consistently expressed a wish not to have children, this is relevant, although not determinative where capacity to understand the implications is lacking (at [36]).

8.2 Arguments for the Respondent

Low probability of sexual activity. Evidence that the represented person has no understanding of sex, has expressed no desire for sexual relationships, and has not engaged in sexually motivated behaviour. The Tribunal in EW and AB held that without a real likelihood of sexual activity, sterilisation cannot be in the represented person’s best interests.

Effective supervision. Evidence that the current level of supervision effectively manages the risk and that sterilisation would not materially reduce that supervisory burden. In AB, the Tribunal found that AB required constant care in any event (at [75]–[76]).

Permanence and irreversibility. Emphasise that vasectomy is to be treated as permanent, even though reversal is technically possible but unreliable (at [20]–[21]). This engages the “step of last resort” principle.

Youth and potential for change. Where the represented person is young, argue that their circumstances may change and their views on children may evolve. In AB, the Tribunal noted that at 19, “we must assume that it is not impossible that he might” change his mind about children (at [35]).

Disentangling interests. Scrutinise whether the application is motivated in part by the guardian’s own interests, such as the burden of caring for a grandchild, financial concerns about claims on an estate, or anxiety about the represented person’s genetic conditions being inherited by a child (at [80], [86]–[89], [93]–[95]).

9. Key Takeaways for Legal Practice

1. The real prospect of sexual activity is the threshold question. Where the evidence does not establish a real prospect that the represented person will engage in sexual activity, sterilisation will not be found to be in their best interests, regardless of how severe the psychological consequences of parenthood might be (at [42], [78]; EW at [82]).

2. Severity of harm, standing alone, is insufficient. The majority’s reasoning establishes that the analysis requires both a risk assessment and a consequence assessment. A finding of catastrophic psychological harm from fatherhood is necessary but not sufficient; the probability of the triggering event must also be established (at [78]).

3. Sterilisation remains a step of last resort. The requirement of “compelling justification” from Marion’s Case is applied with full rigour. Even where no alternative contraceptive measures are available and the represented person’s expressed wishes appear to align with sterilisation, the Tribunal will not consent unless the overall constellation of factors supports it (at [97]).

4. Effective supervision may undercut the application. Paradoxically, evidence that the guardian is effectively managing the risk of sexual activity may demonstrate that sterilisation is unnecessary. Practitioners should be aware that presenting evidence of vigilant supervision, while demonstrating good care, may weaken the application (at [76]).

5. The represented person’s expressed wishes are relevant but not determinative. Where the represented person lacks the cognitive capacity to understand the implications of sterilisation or parenthood, their expressed preferences are taken into account but cannot determine the outcome (at [36]). Practitioners should not overstate the significance of expressed wishes.

6. Applications may be renewed on changed circumstances. The Tribunal expressly contemplated that a further application might be brought if circumstances change (at [98]). This indicates that a refusal is not necessarily final, and practitioners should advise guardians about the circumstances that may provide a stronger factual foundation for a future application.

7. The sexual assault pathway is of limited utility. A vasectomy does not protect against sexual assault itself. The Tribunal found that, in the context of sexual assault by a person with intellectual capacity, it was highly unlikely that the represented person would ever become aware of any resulting child (at [65]). This limits the usefulness of this concern as a basis for sterilisation.

8. Subsidiary concerns about family interests will be scrutinised. While the Tribunal accepted that AB’s parents were motivated by genuine concern for his welfare (at [79]), it separately analysed each subsidiary concern—estate claims, genetic conditions, parental stress—and found each insufficient. Practitioners should focus arguments on the represented person’s interests and avoid reliance on benefits that accrue primarily to family members.

9. The dissent signals an alternative approach. Dr Winterton’s dissent indicates that reasonable minds may differ on the weight to be given to low-probability but high-consequence risks. This divergence may be relevant on appeal or in future cases where the factual matrix falls between the clearly insufficient risk in AB and the clearly established risk in a case involving active sexual behaviour.

10. The ten-factor framework from JC is now established. The adoption by successive Full Tribunals of the ten-factor framework articulated in JC at [37] confirms its status as the standard analytical tool for sterilisation applications in Western Australia. Practitioners should structure their evidence and submissions around each of these factors.

10. Conclusion

AB [2026] WASAT 31 reinforces that the Tribunal will approach applications for consent to sterilisation with the rigour that the gravity of the decision demands. The case confirms that the best interests test under s 63 of the GA Act incorporates not only an assessment of the severity of harm that might follow from the represented person having a child, but also a threshold assessment of the real prospect of that event occurring.

For practitioners, the decision provides both a detailed analytical framework and a cautionary illustration. The fact that the majority was prepared to refuse consent—notwithstanding accepted evidence of catastrophic psychological harm, the absence of alternative contraceptive measures, the represented person’s own expressed wishes, and the good faith of the applicant—demonstrates the height of the bar that sterilisation applications must clear.

The dissenting opinion of Dr Winterton offers a defensible alternative analysis, grounded in the same factual findings but applying a lower threshold of risk tolerance. The divergence between the majority and the dissent is likely to be of particular interest in future cases where the factual matrix presents a closer question on the likelihood of sexual activity.

The core practical message is clear: practitioners advising guardians must carefully assess the real prospect of the represented person engaging in sexual activity before bringing an application. Where that prospect is low, the appropriate course may be to monitor the situation and document any change in circumstances that may provide the foundation for a renewed application at a later date.

 Note: All names used in this article are pseudonyms assigned by the Tribunal. The judgment was published under those pseudonyms in accordance with the State Administrative Tribunal’s standard practice in guardianship proceedings. No details in this article identify or are intended to identify any party, witness, or associated person.

Disaggregating Co-Morbid Conditions in Guardianship Applications: When Medication Misuse, Personality Disorder and Mental Illness Cannot Ground a Guardianship Order

An Analysis of J [2026] WASAT 29

1.  Introduction

The decision of Senior Member Marillier in J [2026] WASAT 29 is a significant contribution to the jurisprudence of the State Administrative Tribunal (“the Tribunal”) on the scope of the Guardianship and Administration Act 1990 (WA) (“the GA Act”). The decision addresses a question of considerable practical importance for guardianship practitioners: where a represented person presents with multiple co-morbid conditions, which of those conditions can properly sustain a guardianship order?

The Tribunal’s analysis required the disaggregation of four distinct conditions — Cluster B personality disorder, bipolar affective disorder, chronic medication misuse, and mild cognitive impairment consistent with vascular dementia — and a principled determination of whether each condition, individually or in combination, met the statutory criteria in s 43(1)(b) and (c) of the GA Act.

The decision warrants close attention from practitioners for three reasons. First, it articulates a clear analytical framework for multi-diagnosis cases. Second, it draws a principled distinction between episodic substance-induced impairment and intrinsic cognitive incapacity, holding that the former does not constitute the “lack of decision-making ability” contemplated by the GA Act. Third, it demonstrates the evidentiary weight the Tribunal accords to longitudinal professional observation of functional deterioration when formal diagnostic evidence is equivocal.

2.  Relevant Legal Framework

The Statutory Test

Section 43(1) of the GA Act provides that the Tribunal may appoint a guardian for a person if satisfied that the person is: (a) incapable of looking after their own health and safety; (b) unable to make reasonable judgments in respect of matters relating to their person; or (c) in need of oversight, care or control in the interests of their own health and safety or for the protection of others. In addition, s 43(1)(c) requires that the Tribunal be satisfied the person is “in need of a guardian.”

Section 4 of the GA Act sets out the principles governing the exercise of the Tribunal’s jurisdiction, including the presumption of capacity, the requirement that any order be the least restrictive alternative, and the obligation to ascertain the views and wishes of the represented person.

The Concept of “Mental Disability” and the Legislative Purpose

The GA Act does not define “mental disability” in terms that prescribe specific diagnoses. In FY [2019] WASAT 118 at [32], the Full Tribunal confirmed that a finding of mental disability may rest on one or a combination of identified medical conditions, or it may be established where the underlying cause is not entirely clear or susceptible to a particular medical diagnosis, provided the existence of the mental disability is beyond doubt.

Senior Member Marillier drew on the long title of the GA Act and the second reading speech of the Minister for Health (Legislative Assembly, 6 June 1990) to identify the legislative purpose. The long title describes the Act as providing “for the guardianship of adults who need assistance in their personal affairs.” The second reading speech contemplates that the Tribunal will appoint a guardian “only where it is established that a person lacks a decision-making ability” and identifies the intended beneficiaries as persons who, “as a result of” an intrinsic condition, “are unable to make decisions.”

S and SC [2015] WASAT 138

In S and SC [2015] WASAT 138, Member Leslie appointed a guardian for a man who consumed alcohol to the point of complete intoxication daily (at [84]). However, as the Tribunal in J noted, the critical finding in S and SC was that the chronic alcohol abuse had caused “significant memory deficits that are irreversible” rendering the represented person’s judgment impaired “even during the limited times when he is sober” (at [85]). The guardianship order was therefore grounded not in the intoxication itself but in the permanent cognitive damage it had caused.

3.  The Facts of the Case

The Represented Person and the Procedural History

J, a retired nurse in her mid-70s, was the subject of a fourth application to the Tribunal since January 2024 (at [1]). Her husband B applied under s 40 of the GA Act for the appointment of the Public Advocate as J’s guardian, citing medication misuse, falls, unresponsiveness, and calls to emergency services (at [23]).

The procedural history is striking. The first application in February 2024 resulted in the appointment of J’s adult children as limited guardians for three months to cover B’s overseas absence (at [7]). At review, equivocal capacity evidence led the Tribunal to revoke the order (at [10]). A second application in October 2024 culminated in J’s involuntary admission to an older adult psychiatric unit for 55 days (at [13], [21]), but the order was again dismissed after B confirmed he remained willing to provide support at home (at [22]).

The Medical Evidence

J’s diagnostic history was characterised by shifting and conflicting assessments across multiple clinicians and settings. A long-standing diagnosis of bipolar affective disorder was rescinded in 2021 during a 17-day hospital admission where lithium toxicity was identified (at [5]). A diagnosis of vascular dementia was made by physicians at two tertiary hospitals and a geriatrician during the same period, supported by a CT brain showing an old lacunar infarct and microvascular ischaemic change, and a Montreal Cognitive Assessment (MoCA) score of 10/30 (at [5], [67]).

During the 55-day psychiatric admission in late 2024, J’s Addenbrooke’s Cognitive Examination (ACE-III) score was 72/100, below the highly specific cut-off of 82 (at [15], [68]). An MRI brain scan showed changes consistent with moderate chronic small vessel ischaemic change (at [16]). The treating psychiatrist diagnosed bipolar affective disorder with a resolving depressive relapse, co-morbid Cluster B personality disorder (emotionally unstable and histrionic), and mild cognitive impairment (at [16]). However, the psychiatrist subsequently retreated from the bipolar diagnosis in oral evidence, and the discharge summary listed only personality disorder and mild cognitive impairment (at [21], [58]).

The OAMHS psychiatrist, who had seen J three times in the preceding twelve months, remained unsure of J’s diagnosis or diagnoses and was unsure of her capacity in all three domains of personal decision-making (at [30], [32]). The OAMHS case manager described chronic medication misuse (particularly the analgesic Targin), urinary and faecal incontinence, neglect of personal hygiene, and social isolation (at [34]–[40]). Five emergency department attendances between July 2025 and January 2026 were documented, including three episodes of opioid intoxication (at [41]).

The Evidence of Functional Impairment

B’s oral evidence included that J could not work out how to use the keys to unlock the apartment from the inside, and could not heat pre-prepared meals in the microwave (at [43], [47], [72]). The OPA investigator observed physical deterioration since his previous visit, including visible faecal soiling, a nightshirt worn inside out, and increased agitation, while noting that J denied any continence issues and expressed anger at B for purchasing continence pads (at [51]).

4.  Analysis of the Tribunal’s Reasoning

The Disaggregation Methodology

The analytical structure adopted by Senior Member Marillier is the most significant methodological contribution of the decision. Rather than treating J’s multiple conditions as a composite clinical picture, the Tribunal assessed each condition separately against the statutory criteria, asking: does this condition, of itself, ground a guardianship order?

Personality Disorder

The Tribunal accepted that J had Cluster B personality disorders, supported by consistent family evidence over two years and findings by two psychiatrists (at [56]). However, Senior Member Marillier found that J had managed to pursue a professional career throughout adulthood, and the personality disorder was not causing a loss of capacity to make reasonable judgments, notwithstanding that it compromised her ability to maintain supportive relationships (at [56]). This is an important finding: personality disorder, even when diagnosed and behaviourally significant, is not of itself a basis for guardianship.

Mood Disorder

The Tribunal’s treatment of the mood disorder is nuanced. Senior Member Marillier was satisfied that J suffered from a mental illness causing recurrent crises, with two long hospital admissions and differing psychiatric opinions over time (at [60]). The Tribunal found that when acutely unwell, J was not able to make reasonable decisions. However, the Tribunal held that the Mental Health Act 2014 (WA) was the relevant legislation for responding to J’s impaired decision-making during acute episodes, not the GA Act (at [60]). This channels acute psychiatric crises into the involuntary treatment regime and reserves guardianship for conditions with a more enduring character.

Medication Misuse

The Tribunal’s analysis of medication misuse at [61]–[66] is the centrepiece of the decision. Senior Member Marillier accepted that J had a long-standing pattern of medication misuse that put her health and safety at risk (at [62], [66]). However, the Tribunal held that “episodic intoxication due to substance misuse is not a basis for the Tribunal to appoint a guardian in the absence of cognitive impairment when not intoxicated” (at [62]).

This finding was grounded in a purposive analysis of the GA Act. The Tribunal looked to the long title and the second reading speech, observing that the legislation “appears to anticipate an intrinsic condition underpinning the appointment of a guardian rather than a temporary impairment predictably caused by a self-administered chemical agent” (at [64]). Senior Member Marillier drew a clear line: “[t]he Tribunal could and should not appoint a guardian for every person who has made or may make impaired decisions while intoxicated” (at [64]).

The Tribunal distinguished S and SC [2015] WASAT 138, where guardianship was appropriate because chronic alcohol abuse had caused irreversible cognitive deficits persisting during sobriety (at [65]–[66]). In J’s case, the medication misuse did not appear to cause cognitive impairment when she was not intoxicated (at [66]). Accordingly, the misuse contributed to risk but did not constitute a “lack of decision-making ability” with the “implication of chronicity” required by the legislation (at [66]).

Mild Cognitive Impairment / Vascular Dementia

Having excluded personality disorder, mood disorder, and medication misuse as independent grounds, the Tribunal turned to the cognitive impairment. Senior Member Marillier engaged carefully with the neuroimaging and psychometric evidence. The CT and MRI findings of cerebrovascular disease were accepted as structural abnormalities present for at least five years, unaffected by transient illness or medication (at [69]). The 2021 MoCA score of 10/30 was discounted because it occurred during lithium toxicity (at [70]). However, the ACE-III score of 72/100, obtained after three weeks as an inpatient and accepted by the treating psychiatrist as demonstrating at least mild cognitive impairment, was given significant weight (at [71]).

Critically, the Tribunal accorded substantial evidentiary weight to the longitudinal observations of the OAMHS clinicians and the OPA investigator, who had provided evidence across multiple hearings over two years and could attest to progressive deterioration in J’s functional capacity (at [73]). Senior Member Marillier described this longitudinal professional collateral evidence as “highly persuasive of a progressive neuro-degenerative condition” (at [73]).

On this basis, the Tribunal was satisfied that J suffered from a measurable cognitive impairment, accompanied by changes on brain imaging and progressive functional deterioration, consistent with the diagnosis of vascular dementia made in 2021, and that she had lost the capacity to make reasonable decisions about her person (at [74]–[75]).

5.  Assessing the Consequences

The practical consequences of the Tribunal’s disaggregation methodology are significant for both applicants and represented persons.

For applicants, the decision makes clear that applications grounded primarily in medication misuse or substance-related impairment face a high threshold. Unless the applicant can demonstrate that the substance misuse has caused permanent cognitive damage persisting during sobriety (as in S and SC), the intoxication itself — however dangerous — will not sustain an order. This has particular implications in cases involving elderly persons who misuse prescription opioids, benzodiazepines, or other medications, a scenario of increasing clinical prevalence.

For represented persons, the decision provides an important safeguard against the appointment of a guardian on the basis of behaviours that, however risky, are within the person’s autonomous decision-making. The Tribunal’s reasoning preserves the distinction between unwise decisions and incapable decisions — a distinction fundamental to the GA Act’s rights-based framework.

The decision also has systemic implications for the relationship between the GA Act and the Mental Health Act 2014 (WA). By channelling acute psychiatric crises into the involuntary treatment regime, the Tribunal reinforces the separate and distinct purposes of the two legislative schemes. The GA Act provides for ongoing substitute decision-making for persons with enduring incapacity; the Mental Health Act provides for crisis intervention and compulsory treatment for persons whose decision-making is temporarily impaired by acute mental illness.

6.  Worked Example

Consider a hypothetical represented person, “M,” aged 68, who has a history of alcohol use disorder and chronic obstructive pulmonary disease. M lives alone. His adult daughter applies for a guardianship order after M is hospitalised three times in six months following falls sustained while intoxicated. M has been prescribed opioid pain medication for a fractured hip and has on two occasions taken more than the prescribed dose. A GP report states that M has a “possible mild cognitive impairment” but formal neuropsychological testing has not been undertaken. An MRI brain shows age-related changes only.

Applicant’s Perspective

The applicant would seek to establish that M’s combined alcohol misuse and medication misuse, in the context of his chronic illness and social isolation, have caused or are causing a progressive loss of decision-making capacity. She would point to the repeated hospitalisations as evidence that M is incapable of looking after his own health and safety (s 43(1)(b)). She should obtain formal neuropsychological testing (not merely GP screening) and, if possible, neuroimaging showing structural pathology beyond age-related changes. Without evidence of cognitive impairment persisting during sobriety, the application is at risk of failing on the reasoning in J at [62]–[66].

Represented Person’s Perspective

M’s representative would argue that M’s hospitalisations resulted from episodic intoxication and do not demonstrate an intrinsic lack of decision-making ability. Relying on J at [64], M would submit that the GA Act is not intended to appoint guardians for persons who make impaired decisions while intoxicated. M would resist formal neuropsychological testing if confident it would return a normal result, or seek to have testing conducted in optimal conditions. M would point to the absence of structural brain pathology beyond age-related changes as distinguishing his case from J, where both CT and MRI showed cerebrovascular disease.

7.  Practitioner Guidance: A Step-by-Step Framework

The following framework is derived from the Tribunal’s reasoning in J and is intended to assist practitioners advising clients in multi-diagnosis guardianship applications.

Step 1: Identify and Itemise Each Condition Separately.  Do not present the represented person’s conditions as a composite clinical picture. The Tribunal’s methodology requires each diagnosis to be assessed independently against the statutory criteria. Practitioners should ensure that medical reports address each condition separately and specify which condition or conditions are said to cause the loss of capacity.

Step 2: For Each Condition, Ask Whether It Causes an Intrinsic Loss of Decision-Making Ability.  Apply the test derived from the long title and second reading speech as articulated at [63]–[64]: does this condition cause a lack of decision-making ability that is intrinsic rather than the temporary, predictable result of a self-administered chemical agent? If the impairment is episodic and substance-induced, it will not sustain an order unless permanent cognitive damage has resulted (S and SC at [85]).

Step 3: Consider the Appropriate Legislative Regime.  If the represented person’s impaired decision-making arises from acute mental illness, consider whether the Mental Health Act 2014 (WA) is the more appropriate vehicle for intervention (at [60]). The GA Act is reserved for enduring incapacity, not crisis management.

Step 4: Obtain and Present Objective Cognitive Evidence.  Formal psychometric testing (ACE-III, MoCA, or neuropsychological assessment) and neuroimaging (CT or MRI brain) are essential where cognitive impairment is alleged. The Tribunal will scrutinise the circumstances in which testing was conducted: scores obtained during acute illness or medication toxicity may be discounted (at [70]), while scores obtained after a period of stabilisation carry greater weight (at [71]).

Step 5: Assemble Longitudinal Evidence of Functional Deterioration.  The Tribunal placed significant weight on the longitudinal observations of the OAMHS clinicians and the OPA investigator, describing their evidence of progressive deterioration as “highly persuasive” (at [73]). Practitioners should seek to adduce evidence from clinicians or professionals who have observed the represented person over time, not merely at a single point in time.

Step 6: Address Need Separately from Capacity.  Even where the capacity threshold is met, the Tribunal must be separately satisfied that the person is “in need of a guardian” (s 43(1)(c)). The Tribunal’s analysis at [76]–[80] shows that need may be absent where an informal carer is willing and able to provide adequate support. The need inquiry is dynamic: what was unnecessary at one hearing may become necessary at the next if the carer’s willingness or ability changes.

Step 7: Ascertain and Present the Represented Person’s Views.  Section 4 of the GA Act requires the Tribunal to ascertain the represented person’s views and wishes. Where the represented person does not attend, practitioners should ensure that the OPA investigator or another independent person has met with the represented person and can convey their views (at [50]–[54], [81]). The Tribunal may decline to follow those wishes but must address them.

8.  Evidence and Arguments Available to Each Side

For the Applicant

An applicant in a multi-diagnosis case should: (a) obtain medical reports that disaggregate each condition and address its individual effect on capacity; (b) secure formal cognitive testing conducted during a period of clinical stability, not during acute illness or intoxication; (c) obtain neuroimaging to identify structural brain pathology; (d) adduce longitudinal evidence from clinicians who have observed the represented person over an extended period; (e) if medication misuse is a significant feature, present evidence that it has caused permanent cognitive damage persisting during sobriety, relying on S and SC at [85]; (f) address the need requirement separately, with evidence of the inadequacy of less restrictive alternatives; and (g) ensure that the represented person’s views have been obtained and can be presented to the Tribunal.

For the Represented Person

A represented person resisting a guardianship application in a multi-diagnosis case should: (a) challenge each condition separately, arguing that personality disorder does not cause incapacity (at [56]), that acute mental illness is properly addressed under the Mental Health Act 2014 (at [60]), and that substance-induced impairment is not an intrinsic lack of decision-making ability (at [62]–[66]); (b) challenge the reliability of cognitive testing conducted during periods of acute illness, medication toxicity, or hospitalisation; (c) present evidence of functional capacity during periods of stability; (d) argue that less restrictive alternatives exist, such as informal carer support, community services, or three-day medication dispensing (at [61], [76]); and (e) assert the person’s own views and wishes, including their opposition to the appointment of a guardian.

9.  Key Takeaways for Legal Practice

1.  Disaggregate co-morbid conditions.  The Tribunal requires each diagnosis to be assessed independently against the statutory criteria. A composite clinical picture is insufficient; each condition must be shown to cause, or contribute to, a loss of decision-making ability.

2.  Episodic intoxication is not a basis for guardianship.  Medication misuse or substance misuse that causes temporary impairment while intoxicated does not constitute the “lack of decision-making ability” contemplated by the GA Act unless permanent cognitive damage has resulted.

3.  Personality disorder does not equate to incapacity.  A personality disorder, even when diagnosed and behaviourally significant, is not of itself a basis for guardianship. The Tribunal will look for evidence of whether the person was able to function independently throughout adulthood despite the personality disorder.

4.  Acute mental illness is addressed under the Mental Health Act.  The GA Act provides for enduring substitute decision-making. Where the represented person’s impaired decision-making arises from an acute psychiatric episode, the Mental Health Act 2014 (WA) is the appropriate legislative vehicle.

5.  Cognitive testing must be contextualised.  Scores obtained during lithium toxicity, acute illness, or medication side effects may be discounted. Testing conducted after a period of clinical stabilisation carries greater weight.

6.  Longitudinal professional evidence is highly persuasive.  The Tribunal placed significant weight on the evidence of clinicians and OPA investigators who had observed the represented person across multiple hearings over two years. Single-point-in-time assessments are less compelling.

7.  Neuroimaging supports the case for structural pathology.  CT and MRI findings of cerebrovascular disease were accepted as objective evidence unaffected by transient illness or medication, providing a stable foundation for the finding of cognitive impairment.

8.  The need requirement is dynamic and must be addressed at each hearing.  A person may have lost capacity but not be “in need” of a guardian where adequate informal support exists. The inquiry is situational and may change between hearings as the carer’s willingness or ability to continue fluctuates.

9.  The Tribunal will not allow withdrawal without scrutiny.  Where the procedural history and cognitive evidence warrant continued oversight, the Tribunal may decline to permit withdrawal of an application, as occurred at the second application stage (at [19]).

10.  Participation and communication support matter.  The Tribunal arranged voice-to-text instant transcription to accommodate J’s hearing impairment and the OPA investigator communicated by typing questions for J to answer verbally (at [8], [50]). Practitioners should consider and advocate for appropriate communication supports where a represented person has sensory impairments.

10.  Conclusion

J [2026] WASAT 29 provides a disciplined analytical framework for multi-diagnosis guardianship applications. By requiring each co-morbid condition to be assessed independently, the Tribunal has clarified the limits of the GA Act’s reach and reinforced the distinction between temporary, substance-induced impairment and the enduring cognitive incapacity that the legislation was enacted to address.

The decision’s central message for practitioners is one of analytical rigour: identify each condition, assess its individual effect on capacity, and present evidence that is both objective and longitudinal. Applications that rest on a generalised impression of incapacity, or that conflate the effects of substance misuse with intrinsic cognitive decline, will not succeed. Equally, represented persons can take comfort that the Tribunal will not strip their autonomy on the basis of behaviours — however risky — that do not demonstrate an enduring loss of the ability to make decisions.

The decision also serves as a reminder that the GA Act and the Mental Health Act 2014 (WA) serve distinct purposes. Guardianship is not a crisis-response tool; it provides for ongoing substitute decision-making where a person’s intrinsic capacity is permanently or progressively diminished. Where the impairment is acute, episodic, or substance-induced, other legislative regimes are more appropriate.

The Indivisibility of Decision and Reasoning: Why Courts Cannot Judicially Review Findings Without Disturbing the Decision

An Analysis of Re Magistrate Robert Young; Ex parte J C [2026] WASC 115

 1. Introduction

In Re Magistrate Robert Young; Ex parte J C [2026] WASC 115, Palmer J of the Supreme Court of Western Australia dismissed an application for a review order under s 36 of the Magistrates Court Act 2004 (WA) (the Act). The decision addresses a question of practical importance: whether the reasoning of a magistrate may be judicially reviewed independently of the magistrate’s ultimate decision.

The applicant, who had succeeded in resisting a Family Violence Restraining Order (FVRO) application before Magistrate Young, sought to quash certain findings and reasoning in his Honour’s decision while preserving the favourable outcome — the dismissal of the FVRO application. Palmer J held that s 36(1) of the Act does not permit the review of reasons independently of the decision itself, and that a finding of jurisdictional error would necessarily vitiate the entire decision, including the outcome the applicant wished to preserve.

The decision warrants the attention of practitioners in all areas of Magistrates Court litigation. It clarifies the indivisibility of a decision and its reasoning in the context of judicial review, reinforces the distinction between jurisdictional error and error within jurisdiction, and illustrates of the limits of review proceedings — particularly for self-represented litigants who may be dissatisfied with aspects of a judgment but not its result.

2. Relevant Legal Framework

The statutory review mechanism under s 36

Section 36(1) of the Magistrates Court Act 2004 (WA) provides a statutory alternative to the prerogative writs. It empowers an aggrieved person to apply to the Supreme Court for a “review order” in respect of an act, order, or direction of a court officer that was made without jurisdiction or power, or on any ground that might have justified certiorari, mandamus, or prohibition (at [8]).

The procedure under Order 56A of the Rules of the Supreme Court 1971 (WA) involves a two-stage process. At the first stage, the application is heard ex parte before a judge in chambers. A review order will be made if the material demonstrates reasonable prospects of success. If a review order is made, the matter proceeds to a second hearing at which affected parties may appear and be heard (at [10]–[12]).

Jurisdictional error and inferior courts

The concept of jurisdictional error, as described by Hayne J in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, involves a decision-maker acting outside the limits of the functions and powers conferred upon them, as distinct from incorrectly deciding a matter within jurisdiction (at [18]).

Palmer J reiterated that it is more difficult to demonstrate jurisdictional error on the part of an inferior court than in the case of an administrative decision-maker (at [19]), citing Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) [2010] HCA 1.

His Honour set out the five established categories of jurisdictional error in respect of inferior courts, drawn from Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219 and Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125, together with the additional category of denial of procedural fairness (at [20]–[21]).

Reasons and the record

A distinction, drawn from Craig v South Australia at 182–183 and reinforced in Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357, is that the reasons for decision of an inferior court are not part of the “record” unless there is an error of law on the face of the record. An error of law in the reasons is not, without more, a ground that might have justified certiorari (at [22]–[23]).

Discretionary refusal

Even where the grounds for a review order are established, the grant of relief remains discretionary. In Blum v Boothman [2014] WASC 452, Mitchell J refused a review order on discretionary grounds because the order had expired and certiorari would lack utility (at [24]).

3. The Facts of the Case

Background: the FVRO Application

The proceedings arose out of a Family Violence Restraining Order application brought by the applicant’s former partner. The FVRO application had generated extensive prior litigation, including two appeals to the District Court, an application to transfer the FVRO proceedings to the Supreme Court (JC v TH [2025] WASC 91), and earlier judicial review proceedings (Ex parte J C [2025] WASC 99) (at [2]).

On 5 August 2025, Magistrate Young heard the FVRO application and dismissed it. The applicant succeeded (at [3]).

The applicant’s dissatisfaction with the reasoning

Despite prevailing on the ultimate question, the applicant was dissatisfied with the Magistrate’s conduct of the proceedings and certain findings in his reasons. The applicant’s complaints included that the Magistrate had found a threat to kill was made (albeit in jest), had made a finding that family violence occurred despite the Family Court making no such determinative finding, had failed to engage with exculpatory evidence including an audio recording, had made prejudicial remarks describing the applicant as “puerile,” “childish,” and “bloody-minded,” and had misapplied the statutory test under the Restraining Orders Act 1997 (WA) (at [27]–[33]).

The relief sought

The applicant sought to quash Magistrate Young’s factual findings “without disturbing the dismissal of the final restraining order itself” (at [26]). This position was maintained throughout the proceedings. Draft orders filed on 20 October 2025 expressly sought that “the dismissal of the restraining order application by Magistrate Young remain undisturbed” (at [35]). The applicant characterised his application as seeking review of the “reasoning process” rather than the decision (at [36]).

Multiple submissions

The applicant filed a supplementary originating process on 3 September 2025 identifying twelve grounds of review (at [34]), submissions on 25 November 2025 referring to a large number of cases without properly explaining their relevance (at [40]), and further submissions on 15 January 2026 repeating similar assertions (at [41]).

4. Analysis of the Court’s Reasoning

The indivisibility principle

The central holding of the decision is unequivocal. Palmer J held that s 36(1) of the Act “does not provide for the judicial review of reasons for a decision, independently and separately from, a review of the decision itself” (at [44]).

His Honour’s reasoning proceeded on two bases. First, as a matter of statutory construction, ss 36(1)(b) and (c) provide for the review of an “act, order or direction” and do not, in their terms, make provision for a review of the reasons why an officer took that act or made that order (at [45]). Second, as a matter of legal principle, where an inferior court has committed jurisdictional error, the consequence is that the entire decision has no legal force. A successful challenge to the Magistrate’s reasoning on jurisdictional error grounds would therefore necessarily vitiate his Honour’s ultimate decision to dismiss the FVRO application (at [46]).

The applicant’s case authorities

The applicant referred to various cases which he claimed demonstrated that reasons could be reviewed without disturbing the ultimate decision. Palmer J found that the applicant’s submissions “failed to meaningfully engage with what was decided in those cases, or how they established the proposition claimed” and that none of the cases appeared to address the issues raised (at [47]).

No reasonable prospect of success

Palmer J concluded that the application had no reasonable prospect of success (at [42], [49]). The costs application relief sought in the draft orders was found to be beyond the scope of the Judicial Review Application (at [50]).

5. Assessing the Consequences

The logical impossibility of selective review

The decision exposes a logical impossibility at the heart of the applicant’s case. Judicial review for jurisdictional error is a binary instrument: if jurisdictional error is established, the decision is void. There is no mechanism to declare that the decision-maker’s reasoning was vitiated by jurisdictional error while simultaneously preserving the operative decision that the reasoning produced.

This has practical consequences. A successful litigant who is dissatisfied with judicial reasoning but content with the result faces a choice: accept the decision in its entirety (reasoning and all), or challenge the decision and risk losing the favourable outcome. There is no middle path.

Reputational harm and the limits of judicial review

Findings of family violence and a threat to kill, even in the context of an ultimately dismissed FVRO application, remain on the public record and may carry reputational consequences. However, Palmer J’s decision confirms that judicial review under s 36 is not the mechanism by which such concerns are addressed. The statutory regime is directed at the legality of decisions, not the curating of judicial observations.

Costs of unsuccessful applications

The applicant, who was self-represented, filed multiple rounds of submissions, a supplementary originating process, and draft orders over a period of several months. The decision illustrates the investment of court and party resources that can be consumed by applications which, are directed at relief that the court has no jurisdiction to grant.

6. Worked Example

Consider a hypothetical scenario. A respondent in proceedings before the Magistrates Court successfully resists a claim for damages arising from an alleged breach of contract. The Magistrate dismisses the claim but, in the course of the reasons, makes adverse findings about the respondent’s credibility and commercial conduct — findings that the respondent considers factually wrong and potentially damaging to their business reputation.

The respondent’s perspective

The respondent wishes to have the adverse findings set aside. They consult a lawyer about applying for a review order under s 36 of the Act. The lawyer must advise that a review order directed at the Magistrate’s reasoning, without disturbing the dismissal of the claim, is not available. If jurisdictional error were established in the Magistrate’s fact-finding process, the entire decision — including the dismissal — would be void. The respondent would then face a rehearing at which they might not succeed.

The claimant’s perspective

If the respondent were to bring a review application challenging the reasoning, the original claimant could point to Ex parte J C [2026] WASC 115 and submit that the application discloses no reasonable prospect of success, since the applicant does not seek to disturb the operative decision. The claimant could also raise the discretionary ground that the application lacks utility: the findings, while recorded in the reasons, have no operative legal effect.

The practical lesson

The lawyer’s advice must be that the respondent’s remedy, if any, lies outside the judicial review jurisdiction. If the adverse findings are causing concrete harm (for example, being cited in other proceedings), they may need to be addressed in those other proceedings on their merits. Judicial review is not a mechanism for editing judgments.

7. Practitioner Guidance: A Step-by-Step Framework

Step 1: Identify the decision, not the reasoning. When a client is dissatisfied with a Magistrates Court outcome, the first question is whether the complaint is directed at the decision (the act, order, or direction) or at the reasoning. Section 36(1) only provides for review of the former (at [44]–[45]).

Step 2: Assess whether the client is prepared to risk the outcome. If the complaint is with the reasoning but the decision was favourable, the client must be advised that a successful jurisdictional error challenge would void the entire decision, including the favourable outcome (at [46]). If the client is not prepared to accept that consequence, a review application is not appropriate.

Step 3: Distinguish jurisdictional error from error within jurisdiction. It is more difficult to establish jurisdictional error on the part of an inferior court than an administrative decision-maker (at [19]). Mere errors of law in the reasoning, without more, do not constitute grounds for certiorari (at [22]–[23]). Apply the five established categories of jurisdictional error set out by Palmer J at [20].

Step 4: Check whether errors appear on the face of the record. For an inferior court, the reasons for decision are not part of the “record” unless there is an error of law on the face of the record (at [23], citing Craig v South Australia at 182–183). If the error is confined to the reasons and does not appear on the face of the record, the remedy lies in the appellate process, not judicial review (at [22]).

Step 5: Consider discretionary grounds for refusal. Even where jurisdictional error is established, relief is discretionary (at [24]). If the relief sought would lack utility — for example, because the order has expired, or the applicant does not wish to disturb the decision — the court may refuse a review order.

Step 6: Engage meaningfully with case authorities. Palmer J criticised the applicant’s submissions for referring to cases without properly explaining why they established the propositions claimed or how those propositions advanced the applicant’s case (at [40]–[41], [47]). Submissions that merely assert that cases stand for propositions, without analysis, are unlikely to persuade.

Step 7: Confine the application to the scope of the originating process. Relief sought must fall within the scope of the judicial review application as filed. Palmer J noted that the costs application relief in the draft orders appeared to be beyond the scope of the present application (at [50]).

8. Evidence and Arguments Available to Each Side

For an applicant seeking review of reasoning

An applicant in an analogous position would need to overcome the obstacle identified by Palmer J: that s 36(1) does not provide for review of reasons independently of the decision. Arguments that might be advanced include:

First, that the impugned findings constitute a separate “act” or “direction” within the meaning of s 36(1)(c), distinct from the ultimate disposition. Palmer J did not accept this in the present case, but a differently constituted set of facts — for example, where findings have direct operative legal consequences independent of the disposition — might present a stronger argument.

Second, that the reasoning discloses a denial of procedural fairness (the sixth category of jurisdictional error at [21]) which can be addressed without disturbing the outcome — though this argument faces the same difficulty that jurisdictional error vitiates the entire decision.

Third, that the court’s inherent jurisdiction or supervisory jurisdiction provides a basis for declaratory relief concerning the reasoning, independent of the statutory mechanism in s 36. This argument was not developed in the present case.

For a respondent opposing such an application

A respondent would rely directly on Palmer J’s reasoning:

First, that the plain language of s 36(1) is directed at acts, orders, and directions, not at reasons or findings (at [45]).

Second, that jurisdictional error necessarily vitiates the entire decision, making selective review logically impossible (at [46]).

Third, that even if some basis for review could be found, discretionary refusal would be appropriate where the applicant does not wish to disturb the operative decision and the relief sought therefore lacks utility.

9. Key Takeaways for Legal Practice

1. Reasons cannot be reviewed independently of the decision. Section 36(1) of the Magistrates Court Act 2004 (WA) provides for review of an “act, order or direction,” not for review of the reasoning that led to it. A decision and its reasoning are indivisible for the purposes of judicial review (at [44]–[45]).

2. Jurisdictional error vitiates the entire decision. If jurisdictional error is established, the decision has no legal force. An applicant cannot selectively challenge findings while preserving the operative outcome (at [46]).

3. The “reasonable prospect of success” threshold requires more than dissatisfaction. At the first stage of the O 56A process, the applicant must demonstrate a case with reasonable prospects of success (at [12], [42]). Disagreement with findings, however strong, is insufficient if the relief sought is not available.

4. Inferior court reasons are not part of the “record” unless error appears on its face. An error of law in the reasons of an inferior court is not, without more, a ground for certiorari (at [22]–[23]). Errors confined to the reasons must be addressed through the appellate process.

5. Submissions must meaningfully engage with authority. Asserting that cases stand for propositions without explaining why, or how those propositions advance the applicant’s case, is unlikely to succeed and may attract judicial criticism (at [40]–[41], [47]).

6. Relief must fall within the scope of the originating process. Additional heads of relief that are beyond the scope of the application as filed may not be entertained (at [50]).

7. Discretionary refusal may apply even where grounds are established. The grant of a review order is discretionary. Where the relief sought would lack utility, the court may refuse the order (at [24]).

8. Self-represented litigants are held to the same jurisdictional limits. The decision illustrates that the court cannot extend its review jurisdiction beyond statutory limits to accommodate the concerns of a litigant who has, in fact, succeeded.

10. Conclusion

Re Magistrate Robert Young; Ex parte J C [2026] WASC 115 provides an authoritative statement that judicial review under s 36 of the Magistrates Court Act 2004 (WA) is directed at decisions, not reasoning. A decision and its reasoning are indivisible: an applicant cannot surgically excise findings from a judgment while leaving the operative order intact.

The decision is a reminder for practitioners advising clients who are dissatisfied with aspects of a judgment. The first question must always be: what is the decision, and does the client wish to challenge it? If the answer to the second question is no, then judicial review is not the appropriate avenue, regardless of how unsatisfactory the reasoning may appear.

For self-represented litigants and practitioners alike, the case underscores the importance of understanding the jurisdictional limits of review proceedings before committing resources to an application. Dissatisfaction with judicial reasoning is not, by itself, a gateway to judicial review. The law draws a clear line between the legality of a decision and the acceptability of its reasoning, and s 36 addresses only the former.

The Duty to Exercise Independent Forensic Judgment: When Lawyers Must Overrule Their Clients on Evidence

An Analysis of Bailey and Petersen [2026] FCWA 50

1.  Introduction

All names used in this article are pseudonyms assigned by the Court. The judgment was published under those pseudonyms with the approval of the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth). No details in this article identify or are intended to identify any party, witness, or associated person.

Bailey and Petersen [2026] FCWA 50 is a judgment of O’Brien J in the Family Court of Western Australia, delivered on 16 March 2026, that warrants close attention from all legal practitioners—not merely family lawyers. While the decision arose in the context of a parenting dispute under the Family Law Act 1975 (Cth), its analysis of the professional obligations of lawyers in relation to the evidence they place before a court has application across all areas of legal practice.

The judgment addresses a question that arises with regularity in contested proceedings: what is a lawyer to do when a client insists upon filing evidence that is irrelevant, lacking in probative value, or gratuitous? O’Brien J’s answer is unequivocal. The lawyer must exercise independent forensic judgment. That duty is not merely aspirational; it is mandatory. It cannot be displaced by client instructions, client preferences, or client-drafted affidavits. A lawyer who files irrelevant material has failed in a professional obligation.

The significance of the decision lies in its clarity. It consolidates, in accessible terms, the interplay between the overarching purpose provisions of the Family Law Act, the specific powers of the Court in child-related proceedings, and the professional conduct obligations imposed on solicitors and barristers. It does so by reference to a concrete and, as the Court acknowledged, “stark” example (at [94]).

2.  Relevant Legal Framework

2.1  The overarching purpose provisions

Section 95 of the Family Law Act 1975 (Cth) sets out the overarching purpose of practice and procedure provisions. That purpose is to facilitate the just resolution of disputes in a manner that, among other things, ensures the safety of families and children, promotes the best interests of the child, and achieves resolution “as quickly, inexpensively and efficiently as possible” (s 95(1)(d)). Section 95(2)(e) requires the disposal of proceedings “at a cost that is proportionate to the importance and complexity of the matters in dispute.”

Section 96 imposes a duty on parties to conduct proceedings consistently with that overarching purpose. Lawyers have a corresponding duty to assist their client to comply with it. As O’Brien J observed at [17], these are duties imposed by statute, not mere aspirations.

2.2  The Court’s powers in child-related proceedings

Section 102NE provides that the Court must actively direct, control and manage the conduct of child-related proceedings. Section 102NN confers broad powers to give directions or make orders about, among other things, the matters on which parties may present evidence, who may give evidence, and the number of witnesses (s 102NN(2)(j)). The Court may also limit or disallow cross-examination of a particular witness (s 102NN(2)(i)).

2.3  The professional conduct obligations

The duties of lawyers as officers of the court are reinforced by the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (WA), r 17, and the Legal Profession Uniform Conduct (Barrister) Rules 2015 (WA), rr 42–43. O’Brien J summarised the effect at [23]: lawyers must not act as the “mere mouthpiece” of their client. They are required to exercise independent forensic judgment and do not breach their duty to the client by doing so, even where it means acting contrary to instructions.

2.4  Relevance, admissibility and probative value

Rule 239 of the Family Court Rules 2021 (WA) reflects the fundamental principle that evidence at trial should be limited to facts that are relevant, admissible, and of probative value (at [9]). O’Brien J emphasised that the relaxed evidentiary regime in parenting proceedings—section 102NL permits opinion and hearsay evidence—does not equate admissibility with relevance or probative value (at [12]). The distinction between the unqualified opinion of a lay witness and expert opinion evidence, as discussed in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743–744 [85], remains critical.

3.  The Facts of the Case

The proceedings concerned parenting arrangements for two children, Charlie (born 2017) and Henry (born 2019), following the separation of Mr Bailey and Ms Petersen. The proceedings were commenced in May 2020 and listed for a seven-day trial before O’Brien J in 2026. Both parties were legally represented. Between them, they proposed to call 25 witnesses (at [1]).

At a Status Hearing in early 2026, the Court confirmed the matters actually in issue. Both parties agreed, through their respective counsel, on a series of concessions that materially narrowed the dispute. These included that there was no risk of the children being exposed to family violence, abuse or neglect in the care of either parent (at [3](a)); that each parent was competent and attentive (at [3](c)); and that both were devoted and engaged parents (at [4](b)). The only identified risk to the children was exposure to the negativity of each parent about the other (at [4](a)).

Against that narrow factual matrix, O’Brien J expressed surprise at both the proposed trial length and the number of lay witnesses: seven for the wife and ten for the husband (at [5]). The Court required counsel to be prepared to make submissions at trial as to why each affidavit, other than those of the parties themselves, the Single Expert Witness, and the family therapist, should be received into evidence (at [6]).

3.1  The husband’s proposed evidence

The husband proposed to rely on evidence from 13 witnesses in addition to his own three affidavits. The Court’s treatment of each is instructive.

Of the 13, counsel for the husband conceded that the evidence of five witnesses—Mr Morgan (at [39]), Mr Becker (at [41]), Ms Orson (at [52]), Mr Leroy (at [54]), Mr Whit (at [56]), and Ms Douglas (at [64])—had no probative value. The concession that Ms Frances Bailey’s evidence similarly lacked probative value followed (at [58]). A subpoena for Dr Johnson was discharged before trial (at [32]).

Three further affidavits were excluded after contested submissions. The affidavit of Ms Radu, a clinical psychologist who had seen the parties years before the children were born, was excluded on the basis that the matters it addressed—an admitted slap and admitted communication difficulties—were already established (at [37]). The affidavits of Mr Robert Bailey and Ms Eliot, siblings of the husband who had limited contact with the children, were excluded for having little relevance and no probative value (at [46], [50]).

Only two affidavits beyond the husband’s own were admitted: that of Ms Michelle Bailey, his mother, who had lived with him and had significant contact with the children, and whose evidence was relevant to an issue raised in the Single Expert Witness’s report (at [60]–[62]); and that of Mr Visser, the husband’s treating psychologist, given the currency of his professional engagement (at [69]).

3.2  The wife’s proposed evidence

The wife proposed seven lay and professional witnesses in addition to her own affidavits. Five lay witness affidavits—from a high school friend, a brother-in-law, a neighbour, a mothers’ group friend, and a retired professional—were sensibly abandoned at trial (at [73]).

The affidavit of Mr Joshua Petersen, the wife’s brother, was excluded. It contained extensive personal history, including detail of shared cooking arrangements in Europe in 2006–2007, and was characterised by gratuitous commentary about the husband’s career and ambition (at [82]–[85]).

The affidavits of Ms Suzanne Petersen (the wife’s mother, admitted due to her active involvement and at the husband’s request for cross-examination: at [77]–[78]), Ms Curtis (treating psychologist, admitted for currency of engagement: at [81]), Dr Joyce (paediatrician, clearly relevant to a medical dispute: at [87]), and Dr Carrillo (general practitioner, relevant to the same dispute: at [90]) were received.

3.3  Outcome

Of 25 proposed witnesses, the affidavits of 16 were not received into evidence (at [92]). The trial proceeded with the evidence of the parties, six professional witnesses, and one lay witness for each side.

4.  Analysis of the Court’s Reasoning

4.1  The “prospective and predictive exercise”

O’Brien J’s reasoning is anchored in the characterisation of parenting orders as a “prospective and predictive exercise” (at [13]). The Court’s task is to determine what arrangements will best serve the children’s interests going forward, informed by relevant past events but not overwhelmed by them. “Cradle to grave” affidavits are rarely informative for that purpose.

4.2  The distinction between admissibility and probative value

The relaxed evidentiary provisions of s 102NL allow opinion and hearsay evidence in parenting proceedings. O’Brien J was at pains to emphasise that admissibility does not equate to relevance or probative value (at [12]). This is a point of general application. The fact that evidence may be received does not mean it should be. The gateway of admissibility is necessary but not sufficient.

4.3  The problem with lay opinion evidence

The judgment draws a clear line between lay opinion and expert opinion. A friend’s view that the husband is a good father, a brother-in-law’s assessment of the husband’s career ambition, or a neighbour’s impression of the wife’s parenting are, in practical terms, testimonials. They carry no weight in a forensic exercise where the Court has the benefit of expert evidence from a Single Expert Witness, a family therapist, and relevant treating professionals. As O’Brien J noted, the distinction identified in Makita at [85] between unqualified lay opinion and expert evidence remains critical (at [12]).

4.4  The “forensic disadvantage” test

A notable feature of the judgment is the role played by the opposing party’s position in the admissibility determination. In several instances, the Court admitted evidence where the opposing counsel identified a forensic disadvantage in not being able to cross-examine the witness. This arose with Ms Michelle Bailey (at [61]), Ms Suzanne Petersen (at [77]), Ms Curtis (at [80]), and Mr Visser (at [68], though there the wife’s counsel did not perceive disadvantage and the affidavit was admitted on other grounds). Where neither party perceived a forensic need for the evidence, exclusion followed.

4.5  The 220 photographs

O’Brien J’s observation about the 220 “happy photographs” annexed to the parties’ affidavits (at [27]) is a pointed illustration. No photograph of a child looking happy has probative value in proceedings where both parents are acknowledged to be devoted and competent. While self-represented litigants might mistakenly think such material serves a forensic purpose, the Court observed that “there is frankly no excuse for lawyers seeking to adduce them into evidence.”

5.  Assessing the Consequences of Non-Compliance

O’Brien J identified three categories of consequence flowing from the failure to exercise independent forensic judgment on evidence.

5.1  Costs to the parties

The parties incurred unnecessary costs in the preparation, drafting, settling, filing and serving of 16 affidavits that were ultimately excluded (at [95]). Each affidavit involved time spent by the deponent in preparation, time spent by the lawyer in settling and filing, and associated court filing fees. The costs extend to the preparation of cross-examination plans for witnesses who were never called.

5.2  Delay to the parties

The inflated witness list drove an estimate of seven trial days. That estimate in turn limited the listing options available, such that earlier dates that would otherwise have been utilised could not be (at [96]). The parties’ own progress to trial was thereby delayed.

5.3  Impact on other litigants

The seven days allocated to the matter could not be allocated to other families (at [97]). This is a point of systemic significance. Court time is a finite public resource. Its inefficient consumption by one matter has a direct and measurable impact on every other matter awaiting hearing.

6.  Worked Example: Applying the Principles

Consider a hypothetical parenting dispute with the following features. The parties agree that each is a competent parent. The dispute concerns the division of time and a disagreement about schooling. Each party proposes to call five lay witnesses comprising family members and friends. The single expert has provided a report. A family therapist has been appointed.

6.1  From the perspective of the party proposing the evidence

The practitioner must undertake a rigorous assessment of each proposed witness before any affidavit is drafted. The questions to ask are:

First, what is the matter in issue to which this witness’s evidence is directed? If the answer is a generalised proposition—“my client is a good parent”—the evidence is almost certainly without probative value where that proposition is not in dispute.

Second, does this witness have direct knowledge of a fact that is genuinely contested and that cannot be established by other evidence already before the Court? If the Single Expert Witness and the parties’ own evidence already address the issue, a lay witness’s observations will add nothing.

Third, is this witness offering opinion evidence? If so, is the witness qualified to give that opinion? The unqualified opinion of a family member that a parent is “demanding” or “lacks ambition” has no forensic utility.

Fourth, will the evidence withstand the scrutiny applied by O’Brien J? Would counsel be able to articulate, with precision, the probative value of the evidence if required to do so by the Court?

6.2  From the perspective of the party opposing the evidence

The practitioner should consider whether there is a genuine forensic disadvantage in the evidence being excluded. If the answer is no—if the evidence, even if admitted, would not affect the outcome—the practitioner should say so. This is what occurred in several instances in Bailey and Petersen (see, for example, at [68] where counsel for the wife confirmed no forensic disadvantage in excluding Mr Visser’s evidence).

Conversely, where the opposing party’s witness has made allegations that require testing, the practitioner should identify the forensic disadvantage of exclusion. This is what occurred with Ms Michelle Bailey (at [61]) and Ms Suzanne Petersen (at [77]), where opposing counsel’s submission that exclusion would cause forensic disadvantage contributed to the evidence being admitted.

7.  Practitioner Guidance: A Step-by-Step Framework

The following framework, derived from the principles stated in Bailey and Petersen, is applicable to any proceedings in which a practitioner is considering what evidence to file.

Step 1: Identify the matters in issue.

Before any affidavit is drafted, the practitioner must clearly identify the matters actually in dispute. As O’Brien J observed, this must occur at an early stage and before trial affidavits are prepared, “for obvious reasons” (at [10]).

Step 2: Assess each proposed witness against the issues.

For each proposed witness, the practitioner must determine whether their evidence is directed to a matter genuinely in issue, whether it is relevant and of probative value, and whether it is duplicative of evidence already before the Court.

Step 3: Exercise independent forensic judgment on client-drafted material.

Where clients or witnesses have prepared initial drafts of affidavits, the practitioner has a duty to review, edit, and if necessary refuse to file that material. The duty extends to the “deletion of inadmissible, irrelevant, or gratuitous content” and further to “a refusal by the lawyer to file the affidavit if it is of no relevance or probative value” (at [26]).

Step 4: Remove all material without probative value.

This includes, by way of non-exhaustive example: happy photographs of children (at [27]); testimonial-style character evidence; gratuitous commentary about the other party’s career, ambition or personality; submissions disguised as evidence (at [48]); and historical detail unconnected to any matter in issue (at [82]).

Step 5: Communicate the professional obligation to the client.

As O’Brien J observed at [100], “the requirement to adhere to clear professional obligations is a complete answer to many of the demands made by clients.” The practitioner should explain to the client that filing irrelevant evidence will not assist their case, will increase costs, and may delay the hearing. The professional obligation provides the basis for that conversation and, if necessary, for acting contrary to the client’s wishes.

Step 6: Apply the proportionality principle.

The cost and time involved in the evidence must be proportionate to the importance and complexity of the matters in dispute (s 95(2)(e)). In a case where the core issues are narrow, a large number of witnesses is unlikely to be proportionate.

8.  Evidence and Arguments Available to Each Side

8.1  For the party seeking to adduce lay evidence

The strongest argument for admission arises where the opposing party would suffer a forensic disadvantage from exclusion. This occurred in Bailey and Petersen with the parties’ mothers (at [61], [77]). The lay witness must have direct, relevant knowledge of a contested matter that is not adequately addressed by other evidence. Frequency and recency of contact with the children will strengthen the case for admission. Evidence addressing a specific concern raised by the Single Expert Witness is more likely to be admitted (at [60]).

8.2  For the party opposing the evidence

The following arguments, each grounded in Bailey and Petersen, are available:

(a) The evidence is duplicative: the same matters are addressed in the party’s own affidavit and/or the expert evidence (at [45]).

(b) The evidence is opinion evidence from an unqualified lay witness and lacks the indicia required for expert opinion: Makita at [85]; Bailey and Petersen at [12].

(c) The witness has limited contact with the children, reducing the weight and relevance of any observations (at [45], [47]).

(d) The affidavit contains submissions rather than evidence (at [48]).

(e) There is no forensic disadvantage from exclusion because the matters addressed are not in dispute or are adequately addressed elsewhere (at [68]).

9.  Key Takeaways for Legal Practice

1.  The duty to exercise independent forensic judgment is mandatory. It is not diminished by client instructions, client-drafted affidavits, or the pressures of busy practice (at [22]–[23]).

2.  Identify the issues before drafting evidence. The matters in issue must be clearly identified at an early stage and before trial affidavits are prepared (at [10]).

3.  Admissibility does not equate to relevance or probative value. The relaxed evidentiary regime in parenting proceedings does not exempt evidence from scrutiny for relevance and probative value (at [12]).

4.  Lay opinion evidence is rarely of probative value where the Court has the benefit of expert evidence. The distinction in Makita between qualified and unqualified opinion evidence remains critical.

5.  Testimonials and character references do not assist. Evidence that a parent is “a good father” or “a caring mother” has no forensic utility where competent parenting is not in dispute.

6.  The professional obligation is a tool, not a burden. It provides the complete answer to demanding clients (at [100]). Adherence to it will “alleviate the pressure perceived by a practitioner more often than it will exacerbate it.”

7.  Consequences extend beyond the parties. Inflated trial estimates consume finite court resources and delay other families’ access to justice (at [97]–[98]).

8.  The principles are of general application. While the judgment arises in the family law jurisdiction, the duties described apply to all lawyers in all jurisdictions. The obligation to confine a hearing to the real issues and present the case as quickly and simply as is consistent with its robust advancement is universal.

10.  Conclusion

Bailey and Petersen is a judgment that every practitioner should read. Its significance extends well beyond family law. It is a clear, authoritative statement that lawyers are not obliged—and are in fact prohibited—from acting as conduits for their clients’ every wish in relation to evidence. The independent forensic judgment of the lawyer is not a discretionary add-on; it is a professional obligation.

The judgment serves as a reminder that the pressures of practice—demanding clients, tight deadlines, the temptation to file everything and let the Court sort it out—do not excuse a failure to discharge that obligation. As O’Brien J observed, with proper regard to the principles summarised in the judgment, the process of excluding 16 of 25 proposed witnesses “should have been entirely unnecessary” (at [94]). The affidavits eventually excluded should never have been filed.

For practitioners, the practical message is straightforward. Identify the issues early. Assess each piece of evidence against those issues. Remove what is irrelevant. Refuse to file what is gratuitous. Explain the professional obligation to the client. The obligation is not a constraint on effective advocacy; it is a component of it.

The Role of Expert Evidence in Guardianship and Administration Proceedings

Guardianship and administration applications in Western Australia often involve contested questions of mental capacity. In such cases, the State Administrative Tribunal (“the Tribunal”) must weigh lay evidence alongside professional assessments by medical and allied health practitioners. The recent decision in MM [2025] WASAT 103 provides a useful illustration of the principles the Tribunal applies when considering expert evidence.

Background: MM [2025] WASAT 103

The case concerned MM, a woman in her early 80s. Her daughter, YY, applied to be appointed administrator of MM’s financial affairs, alleging that MM lacked capacity and was the victim of coercion and elder abuse by her son, SS. Central to the dispute was whether MM had the ability to manage her financial affairs, particularly in light of a complex property transaction with SS.

YY arranged for MM to be assessed by a neuropsychologist, Dr J, who concluded that MM had a mild cognitive impairment and was unable to independently advocate for her interests in complex financial decisions. In contrast, MM’s general practitioner and a geriatrician (Dr F) found that MM had capacity to manage her affairs. Evidence was also provided by the Public Advocate and Public Trustee.

The Tribunal ultimately held that the presumption of capacity under the Guardianship and Administration Act 1990 (WA) had not been rebutted, and dismissed the application2025WASAT103.

The Presumption of Capacity

Section 4 of the Guardianship and Administration Act 1990 (WA) enshrines the presumption that every person is capable of managing their own affairs until the contrary is proved to the satisfaction of the Tribunal. As observed in Briginshaw v Briginshaw (1938) 60 CLR 336, clear and cogent evidence is required to displace such a presumption where serious consequences follow2025WASAT103.

In MM, the Tribunal emphasised that it will only be persuaded to override the presumption where the evidence is strong and consistent. Lay testimony, observed behaviour, and professional assessments all form part of this evaluative exercise.

The Tribunal’s Approach to Expert Evidence

The Tribunal is not bound by the rules of evidence (see State Administrative Tribunal Act 2004 (WA), ss 32(2), 32(4)) and may inform itself in any manner it thinks fit. This allows the Tribunal to consider expert reports while also taking into account the circumstances in which they were obtained.

In MM, the Tribunal noted several concerns with Dr J’s report:

• MM did not understand the purpose of the assessment and was not given the opportunity to review key documents provided to Dr J by YY.

• Dr J relied heavily on information supplied by YY, without equivalent input from SS.

• The conclusions were inconsistent with the direct observations of the Tribunal, as well as the reports of MM’s GP, geriatrician, and the Public Trustee.

As a result, the Tribunal gave less weight to Dr J’s opinion, preferring the evidence of Dr F and others who concluded that MM retained capacity.

The Weight to Be Given to Expert Evidence

The decision underscores that while expert reports are often central to guardianship proceedings, the Tribunal will assess their independence, methodology, and consistency with other evidence before determining the weight to be attached to them.

As noted in XYZ (Guardianship) [2007] VCAT 1196, the Tribunal may consider evidence from a wide variety of sources, both lay and professional, when assessing capacity. In GC and PC [2014] WASAT 10 and LP [2020] WASAT 25, the Tribunal stressed that expert assessments are important but not determinative; they must be viewed in light of the whole factual matrix.

In MM, the Tribunal concluded that the difficulties MM experienced in advocating for herself were not caused by cognitive impairment but rather by family conflict and complex personal relationships.

The Right to Make Unwise Decisions

A further theme in MM was the Tribunal’s recognition that capacity does not equate to making only “good” decisions. As stated in T [2018] WASAT 128, people have the right to make bad or unwise decisions, provided they have capacity. In this case, even if some considered MM’s financial choices imprudent, the Tribunal found she was entitled to make them.

Lessons from MM [2025] WASAT 103

This case illustrates several important principles for guardianship and administration proceedings:

1. Expert evidence must be independent and fairly obtained. Reports arranged without transparency, or based on incomplete or biased information, may be given reduced weight.

2. The presumption of capacity is robust. It requires clear and persuasive evidence to be set aside.

3. Lay and professional evidence are both important. The Tribunal considers the whole of the evidence, including its own observations of the proposed represented person.

4. Capacity is not judged by the wisdom of decisions. Adults with capacity retain the right to make decisions others may consider unwise.

Conclusion

MM [2025] WASAT 103 provides timely guidance on how the Tribunal evaluates expert evidence in guardianship and administration cases. While expert reports remain a critical tool, their weight depends on independence, context, and consistency with other evidence. Above all, the case reaffirms the central principle that capacity is presumed, and only compelling evidence will justify interference with a person’s autonomy.

Consenting to Extensions of Time: A Legal Practitioner's Duty to the Court

The Context: A Lesson from HOOPER v COCKLES

In HOOPER v COCKLES PTY LTD [2025] WASCA 143, the Court of Appeal was required to determine an application that, in the words of Vaughan JA, "should never have been necessary." The appellants sought a modest one business day extension to file their appellant's case, from 12 September to 15 September 2025. The reason was straightforward: counsel's unrelated mediation had overrun its scheduled time, preventing finalisation of the appellant's case on the due date. Despite the minimal nature of the extension sought and the absence of any specific prejudice, the solicitor for the second and third respondents refused consent, necessitating a formal application to the court.

The Power to Extend Time

The court's power to extend time in the Court of Appeal derives from Order 3 rule 5 of the Rules of the Supreme Court 1971 (WA), which applies to the Court of Appeal through the Supreme Court (Court of Appeal) Rules 2005 (WA). As established in Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35 at [46], this rule confers a broad remedial power on the court to relieve against injustice (Billabong Gold at [47], [65], [73]).

Order 3 rule 5(1) empowers the court to extend the period within which a party is required or authorised to do any act in proceedings. This power may be exercised by a single judge of appeal or a Court of Appeal registrar. The discretion is to be exercised in the interests of justice, weighing all relevant circumstances including the reason for the delay, any prejudice to other parties, and the impact on the conduct of the litigation.

The Professional Duty to Facilitate Justice

The decision in HOOPER v COCKLES underscores a fundamental principle that extends beyond mere procedural courtesy. Legal practitioners have a positive duty to assist the court in attaining the objects set out in Order 1 rule 4B of the Rules of the Supreme Court 1971 (WA). These objects include:

• Disposing efficiently of the business of the court (r 4B(1)(b))

• Maximising the efficient use of judicial and administrative resources (r 4B(1)(c))

• Ensuring that the applicable procedure and costs are proportionate (r 4B(1)(e) and (f))

This duty is not merely aspirational. As Vaughan JA emphasised, a solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty (Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 r 3.1). Barristers are subject to similar overriding duties (Legal Profession Uniform Conduct (Barristers) Rules 2015 r 4(a), (d), r 23).

When Consent Should Be Given

The principles emerging from HOOPER v COCKLES establish clear guidance for when legal practitioners should consent to extension requests:

Consent should ordinarily be given where:

• The extension sought is reasonable in duration

• The extension will not adversely affect any future hearing date

• The extension will not otherwise disrupt the conduct of the litigation

• No specific prejudice will be suffered by the opposing party

The absence of consent should be reserved for circumstances where:

• Specific, identifiable prejudice would result from the extension

• The extension would affect scheduled hearing dates

• There has been a pattern of repeated delays without adequate explanation

• The extension would materially disrupt case management directions

The Consequences of Unreasonable Refusal

The court in HOOPER v COCKLES made clear that unreasonable refusal to consent to minor extensions wastes judicial resources and unnecessarily increases costs. While the court ultimately made no order as to costs in that case (as none were sought), Vaughan JA explicitly warned that "a different position may prevail in the future if the present circumstances are replicated."

The judgment contemplated the possibility of requiring solicitors to show cause under Order 66 rule 5 of the Rules of the Supreme Court 1971 (WA) where consent is unreasonably withheld. This signals the court's willingness to scrutinise the conduct of legal practitioners who obstruct the efficient administration of justice through tactical or unreasonable refusals.

Practical Considerations

Legal practitioners should approach extension requests with the following considerations:

1. Act promptly: When an extension becomes necessary, seek consent at the earliest opportunity

2. Provide reasons: Explain the circumstances necessitating the extension clearly and honestly

3. Be proportionate: Ensure the extension sought is no longer than necessary

4. Document communications: Keep records of consent requests and responses

5. Consider reciprocity: Professional courtesy in granting reasonable extensions fosters efficient case management

The Broader Principle

The decision in HOOPER v COCKLES reflects a broader principle about the role of legal practitioners in the justice system. As Vaughan JA observed, agreeing to reasonable extensions not only fulfils a practitioner's duty to the court but also benefits their own client by avoiding unnecessary costs associated with formal applications.

The message is clear: legal practitioners must rise above tactical gamesmanship and recognise their role as officers of the court. The efficient administration of justice requires cooperation where it does not prejudice legitimate interests. As stated in HOOPER v COCKLES at [16], "a legal practitioner will not be in breach of any duty to his or her client in agreeing a reasonable extension of time which neither adversely affects a future hearing date nor otherwise disrupts the conduct of the litigation."

Conclusion

The principles established in HOOPER v COCKLES PTY LTD [2025] WASCA 143 serve as a reminder that the practice of law is not merely an adversarial contest but a professional endeavour aimed at the just and efficient resolution of disputes. Legal practitioners who understand and embrace this principle will find themselves better serving both their clients' interests and their paramount duty to the court.

Understanding the Contextual Truth Defence in Defamation Law

The Al Muderis Case: A Recent Application

The Federal Court's decision in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 provides valuable insights into the operation of the contextual truth defence in defamation proceedings. Dr Munjed Al Muderis, an orthopaedic surgeon specialising in osseointegration procedures, brought defamation proceedings against Nine Network and associated media outlets concerning a Four Corners broadcast titled "The Agony" and related online articles published in 2023. The publications examined the experiences of certain patients who had undergone osseointegration surgery with Dr Al Muderis, with the surgeon alleging the materials conveyed 75 defamatory imputations about his surgical practice and patient care. The Court ultimately found that the respondents had established the contextual truth defence under section 26 of the Defamation Act 2005 (NSW), dismissing the application.

The Legislative Framework

Section 26 of the Defamation Act 2005 (NSW) provides a complete defence to defamation where a defendant can establish two essential elements. First, the published matter must carry one or more imputations that are substantially true (known as "contextual imputations"). Second, any defamatory imputations complained of by the plaintiff that are not contextual imputations must not further harm the plaintiff's reputation because of the substantial truth of the contextual imputations.

The defence underwent significant amendment on 1 July 2021, with the introduction of section 26(2) proving particularly important. As the Court noted in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909, this provision means it is no longer necessary that a defendant's contextual imputations be different in substance from a plaintiff's pleaded imputations. A defendant may now rely on any imputations carried by a publication - whether the same as, permissible variants of, carrying a common sting with, or entirely different in substance from the imputations of which the plaintiff complains - as contextual imputations.

The Defence Must Defeat All Defamatory Stings

A fundamental principle of the contextual truth defence is that it must defeat the entire defamatory matter of which the plaintiff complains. As established in Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [78], the defence "must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings." This means that the substantial truth of the contextual imputations must be sufficiently serious and comprehensive to render any remaining unproven imputations incapable of causing further reputational harm.

Assessing Further Harm: Facts Not Just Imputations

One of the most significant aspects of the contextual truth defence concerns how courts assess whether residual imputations cause "further harm" to reputation. The Full Court's decision in Seven Network (Operations) Limited v Greiss [2024] FCAFC 162 recently clarified this issue, confirming the approach established in John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541.

In Blake, Spigelman CJ observed that section 16(2)(c) of the predecessor Defamation Act 1974 (NSW) does not focus attention on a contextual imputation as such, but on the proposition that such an imputation is a "matter of substantial truth." The Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself. This approach was confirmed to apply equally to the current section 26 in Greiss.

As Applegarth J noted in Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19 at [46], "The requirement to prove no further harm to the plaintiff's reputation focuses on the facts, matters and circumstances which establish the substantial truth of the contextual imputations. This reflects the language of the section."

Substantial Truth and the Sting of the Libel

When establishing contextual imputations as substantially true, defendants must prove every material part of an imputation is true, with the defence concerned with meeting the sting of the defamation, as confirmed in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [138]. A "material part" is any detail which alters or aggravates the character of the imputations, as established in Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 at 22.

The classic statement of principle comes from Lord Shaw of Dunfermline in Sutherland v Stopes [1925] AC 47 at 78-79, who explained that the plea of justification "must not be considered in a meticulous sense" and that "all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out."

The Character as Criminal Example

The contextual truth defence's operation can be illustrated through cases involving imputations about criminal character. In State of New South Wales v Wraydeh [2019] NSWCA 192, discussed in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909, the State pleaded contextual truth relying on an imputation that "the plaintiff is a criminal," seeking to prove this through evidence of prior criminal convictions unrelated to the events giving rise to the proceedings.

The Court of Appeal's analysis highlighted that whether a person should be characterised in the present tense as "a criminal" is not answered determinatively by establishing past criminal offences. As McCallum JA observed, this "ignores the possibility of change and rehabilitation" and "not every prior conviction would be regarded as necessarily warranting that label." Simpson AJA similarly questioned whether "a person convicted of shoplifting at age 18 [should] forever be branded 'a criminal'."

Strategic Considerations for Defendants

The contextual truth defence offers defendants significant strategic advantages, particularly following the 2021 amendments. Defendants can now rely on the plaintiff's own pleaded imputations as contextual imputations if they can prove them substantially true. This allows defendants to effectively use the plaintiff's case against them, proving some of the plaintiff's imputations to neutralise the sting of those they cannot prove.

The defence is particularly powerful where publications convey imputations involving general charges about a person's character or conduct. Where such general charges are made, defendants are entitled to give particulars demonstrating their truth by reference to a wide variety of matters not confined to facts in the article, as established in Maisel v Financial Times Limited (1915) 112 LT 953.

Practical Application

The application of the contextual truth defence in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 provides instructive guidance on how the defence operates in practice. The respondents' strategic approach, as articulated at [224], was to rely on all imputations to which they had pleaded a justification defence as contextual imputations, including those the Court ultimately found were not conveyed by the publications.

The Imputations at Issue

The Court found at [8] that while certain imputations were not conveyed (including the "Disputed Imputations" at [10.1]-[10.6], [13.2], [13.6], [13.20], [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30]), the remaining imputations that were conveyed provided sufficient basis for the contextual truth defence. Significantly, at [219], the Court accepted that many of the applicant's pleaded imputations involved "general charges" capable of being justified by reference to facts not stated in the publications.

These general charges included serious professional allegations such as:

• Imputation [10.1]: "negligently operated on his patients"

• Imputation [10.2]: "deliberately misled his patients about his surgical abilities"

• Imputation [13.4]: "prioritises money over his patients' care"

• Imputation [13.14]: "runs his surgical practice as a numbers game"

• Imputation [13.18]: "exploited vulnerable patients"

• Imputation [16.1]: "is a callous surgeon who routinely left patients to rot"

• Imputation [16.2]: "routinely negligently failed to provide after surgery care"

• Imputation [16.25]: "negligent in his selection of patients"

• Imputation [16.26]: "habitually failed to explain risks and complications"

The Respondents' Strategic Approach

As the Court noted at [224], the respondents articulated their position clearly: they contended that ordinary reasonable readers and viewers would understand references to "surgery" and like terms as extending to all aspects of Dr Al Muderis's surgical practice, not merely performance "in the operating theatre." This broader interpretation encompassed "pre-operative considerations and consultations and post-operative care, including patient selection, disclosure of risks, misleading patients, making false promises, abandoning patients and negligent post-surgery care."

The respondents submitted at [224] that so long as these broader imputations were conveyed, they were "permitted to rely on them as contextual imputations for the purposes of s 26." This strategic framing allowed them to marshal evidence about the full spectrum of Dr Al Muderis's professional conduct, not just his technical surgical skills.

Establishing Substantial Truth Through Multiple Incidents

In applying the principle from Maisel v Financial Times Limited (1915) 112 LT 953, referenced at [219], the Court accepted that the respondents could justify general charges by reference to "a wide variety of matters which are not confined to the facts in the article." This meant the respondents could present evidence of multiple patient experiences beyond those specifically mentioned in the Four Corners broadcast and articles.

The Court's approach at [226] followed the established principle from John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541 at [61] and Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 at [2602], weighing the particulars and evidence relied upon in support of the substantial truth of the contextual imputations.

The "Swamping" Effect

The respondents' submission at [224] exemplified the strategic power of the contextual truth defence: they argued that the "Disputed Imputations in this broader sense, together with the other imputations which are the subject of the contextual truth defence... are substantially true and that, taken together, the substantial truth of the contextual imputations swamps the defamatory effect of any residual imputations which the Court may find have not been proven to be true."

The Court ultimately accepted this argument, finding at [8(3)] that "the respondents have established the defence of contextual truth under s 26 of the Defamation Act in relation to the Publications in which imputations are conveyed." This finding meant that even though not all 75 pleaded imputations were proven or even conveyed, the substantial truth of the contextual imputations that were established was sufficient to defeat the entire claim.

Key Takeaway for Practitioners

The case demonstrates that defendants need not prove every imputation complained of by a plaintiff. Where defendants can establish the substantial truth of sufficiently serious contextual imputations about professional misconduct - particularly those involving systematic patterns of behaviour rather than isolated incidents - these may neutralise the sting of any unproven imputations. The defence is particularly powerful where, as at [219], the plaintiff has pleaded imputations as general charges, opening the door for defendants to lead wide-ranging evidence of conduct beyond that specifically referenced in the publication.

Conclusion

The contextual truth defence represents a powerful tool in defamation proceedings, allowing defendants to defeat claims by establishing that the substantial truth of certain imputations renders any remaining defamatory material incapable of causing further reputational harm. The recent authorities, particularly Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 and Seven Network (Operations) Limited v Greiss [2024] FCAFC 162, confirm that courts will focus on the underlying facts establishing the truth of contextual imputations rather than merely comparing imputations in the abstract. For practitioners, understanding this defence's operation is essential for both prosecuting and defending defamation claims in Western Australia and throughout the uniform defamation law jurisdictions.

Understanding Excluded Corporations in Australian Defamation Law

Introduction: The Deep Cycle Systems Case

A Queensland District Court decision has provided valuable guidance on what constitutes an "excluded corporation" under Australian defamation law. In Deep Cycle Systems Pty Ltd v Fischer [2025] QDC 25, a lithium battery manufacturer sued for defamation over publications made between August and December 2023. The defendant successfully applied for a separate determination of whether the plaintiff was an excluded corporation under section 9 of the Defamation Act 2005 (Qld). The court ultimately found that the plaintiff failed to establish it was an excluded corporation, meaning it could not maintain its defamation action.

The Statutory Framework

Under section 9(1) of the Defamation Act 2005, a corporation has no cause of action for defamation in relation to the publication of defamatory matter unless it was an "excluded corporation" at the time of publication. This provision exists across all Australian jurisdictions as part of the uniform defamation legislation.

To qualify as an excluded corporation under section 9(2), a corporation must satisfy two requirements:

1. It employs fewer than 10 persons; and

2. It is not an associated entity of another corporation.

Both elements must be established on the balance of probabilities at the time of the relevant publications.

The Employee Test: A Broader Definition

The definition of "employee" in section 9(6) extends beyond traditional common law employment concepts. As noted in Aaren Pty Ltd trading as Price Beat Travel v Arya [2020] NSWDC 657, following observations in Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421, the relationship between the corporation and its employees need not be direct.

In Deep Cycle Systems, the court considered various categories of workers:

• Direct employees under contract

• Freelance engineers

• Family members working voluntarily

• Dealers and distributors

• Potential overseas workers

The court found that dealers who could be terminated for failing to meet "minimum dealer requirements" fell within the broad definition of employees. However, mere volunteers, such as family members working without payment, were not considered employees.

The Associated Entity Test

The second limb requires corporations to prove they are not an "associated entity" of another corporation. This term takes its meaning from section 50AAA of the Corporations Act 2001 (Cth).

Under section 50AAA(7), the test is satisfied where:

• A third entity controls both the principal and the associate; and

• The operations, resources or affairs of the principal and the associate are both material to the third entity.

The Materiality and Nexus Requirement

Following Fair Work Ombudsman v Priority Matters Pty Ltd & Anor [2016] FCCA 1474, there must be a nexus between the associated entities in their respective operations, resources or affairs that are jointly material to the third entity. It is not sufficient that each entity is separately material to the controlling entity.

"Material" is understood to mean "of substantial import or much consequence" or "important or having an important effect." The determination of materiality depends on issues of fact and degree.

Key Indicators of Association

In Deep Cycle Systems, the court found the corporations were associated entities based on several factors:

1. Shared financial resources: Use of a single credit card for both companies' expenses with only annual reconciliation

2. Inter-company loans: Significant loans between the entities and to the controlling director

3. Shared physical assets: Vehicles and equipment used by both companies

4. Cross-promotional activities: Use of one company's marketing channels to advertise the other's products

5. Financial interdependency: Movement of money between entities suggesting joint income generation

The court emphasized that while separate business operations and accounting systems are relevant, they do not necessarily prevent a finding of association where other factors demonstrate material interdependency.

Practical Implications

For corporations contemplating defamation proceedings, establishing excluded corporation status requires careful attention to:

1. Accurate employee counting: Include all workers falling within the expanded definition, including contractors, dealers, and others under the corporation's direction or control

2. Documentary evidence: Maintain clear records of employment arrangements and corporate structures

3. Financial separation: Ensure genuine independence between related entities, particularly in financial dealings

4. Credibility: The court will carefully scrutinize evidence, particularly where witnesses have made admittedly false statements about business arrangements

Conclusion

The Deep Cycle Systems decision reinforces that the excluded corporation provisions are interpreted strictly. Corporations must satisfy both limbs of the test with credible evidence. The broad definition of "employee" and the practical approach to determining "associated entity" status mean that many corporations that might consider themselves small or independent may still be unable to sue for defamation.

Legal practitioners should carefully assess their corporate clients' structures and operations before commencing defamation proceedings, as failure to establish excluded corporation status will result in the proceedings being dismissed, potentially with adverse costs consequences.