An Analysis of CR [2026] WASAT 53
1. Introduction
In CR [2026] WASAT 53, Member Bunney dismissed an application for guardianship and administration orders on the Tribunal’s own initiative under s 47(2) of the State Administrative Tribunal Act 2004 (WA) on the basis that the application was both misconceived and lacking in substance.
The judgment is a reminder that the statutory presumption of capacity is not a presumption to be lightly displaced, and that the Tribunal’s guardianship jurisdiction is not to be enlisted as a forum for marital disputes, property arguments or familial disappointment with the autonomous decisions of an adult who continues to enjoy decision-making capacity. Where an applicant declines to withdraw an application that cannot succeed on the medical evidence, the Tribunal is willing to exercise its summary dismissal power.
The decision affects practitioners advising in guardianship and administration matters, family lawyers approached about a separating spouse who is in poor physical health, estate planners administering enduring powers of attorney and enduring powers of guardianship, and any practitioner asked to act for or against an applicant who is animated by something other than a genuine concern about decision-making capacity. The case warrants attention because it confirms, in clear and uncompromising terms, that the Tribunal will discharge its protective function by protecting the proposed represented person from the application itself.
2. Relevant Legal Framework
The presumption of capacity
Section 4(3) of the Guardianship and Administration Act 1990 (WA) (GA Act) provides that every person is presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person, managing their own affairs, and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal. Section 4(2) requires the Tribunal to treat the best interests of the proposed represented person as its primary concern, and s 4(7) requires the Tribunal to ascertain the views and wishes of that person so far as is possible.
The presumption is rebuttable, but the standard of proof reflects the seriousness of the consequences. As Member Bunney noted at [9], drawing on the Full Tribunal’s reasoning in GC and PC [2014] WASAT 10, the presumption is a fundamental principle of the GA Act and clear and cogent evidence is required to set it aside. The familiar Briginshaw standard applies: see Briginshaw v Briginshaw (1938) 60 CLR 336.
The statutory thresholds
For an administration order, s 64(1) requires the Tribunal to be satisfied that the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or part of their estate. For a guardianship order, s 43(1) requires the Tribunal to be satisfied that the person is incapable of looking after their own health and safety, or unable to make reasonable judgments in respect of matters relating to their person, or in need of oversight, care or control in the interests of their own health and safety or for the protection of others.
Both thresholds are evidentiary thresholds, not conclusions to be drawn from the applicant’s subjective disagreement with the decisions the proposed represented person has made.
The summary dismissal power
Section 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) authorises the Tribunal to dismiss or strike out a proceeding that is frivolous, vexatious, misconceived or lacking in substance, that is being used for an improper purpose, or that is otherwise an abuse of process. Subsection (3) imposes a procedural safeguard: the power may be exercised only by a legally qualified member. Subsection (4) permits the Tribunal to act on the application of a party or on its own initiative.
The meaning of ‘misconceived’ and ‘lacking in substance’ was settled before the Tribunal in Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 at [23], drawing on State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108–109 (Ormiston JA). A misconceived proceeding is one premised on a misunderstanding of legal principle. A proceeding lacking in substance is one that, after careful consideration, has no realistic prospect of success: Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [44] (Chaney J).
3. The Facts of the Case
The proposed represented person and the applicant
CR is a 69-year-old woman with eight adult daughters and a 28-year marriage to her second husband, HU. She has a history of strokes and aneurysms and lives with significant physical health issues. At the time the application was filed, CR was an inpatient at Hospital A (at [1]).
CR’s decisions in January 2026
CR decided that she would not return to live with HU and that she wished to separate from him and move into residential aged care (at [2]). In late January 2026, she executed an enduring power of attorney and an enduring power of guardianship, appointing her third eldest daughter, D3, in both roles (at [2]). The enduring power of attorney was witnessed by a doctor (at [14]).
HU’s application
When HU learned of CR’s decision to separate, he filed an application under s 40 of the GA Act seeking guardianship and administration orders over CR (at [3]). The application was framed around HU’s concerns about what he described as the sudden and significant change in CR’s expressed wishes and her vulnerability to influence. HU, together with the daughter he shares with CR (SS), wanted CR to return home with NDIS supports in place (at [3]).
The directions hearing
In late February 2026, a Senior Member of the Tribunal convened a directions hearing to consider the application and CR’s medical evidence, which confirmed that CR had capacity (at [4]). The Senior Member explained the medical evidence to HU and invited him to withdraw the application. HU declined: in his view, CR’s unwillingness to see him itself demonstrated incapacity (at [5]).
The Senior Member listed the matter for final hearing on 12 May 2026, referred it to the Office of the Public Advocate for investigation, and directed that the matter be considered under s 47 of the SAT Act in light of HU’s refusal to withdraw despite the medical evidence (at [6]).
The medical evidence
Dr W, CR’s treating doctor at Hospital A, prepared a medical report dated 5 February 2026. The report stated that CR had no medical condition that would cause a mental disability and that, in Dr W’s opinion, CR had capacity to make decisions about her personal, financial and legal matters, including capacity to execute the enduring power of attorney and enduring power of guardianship (at [16]). Ms B, the social worker from Hospital A, confirmed that the treating team was satisfied that CR retained information from previous meetings and that there were no concerns about her recall (at [17]).
The Public Advocate’s investigation
The investigator from the Office of the Public Advocate met with CR and reported that CR did not wish to remain married to HU, was strongly opposed to HU being appointed as her decision-maker, and wanted her trusted daughters to support her separation and the planning of her discharge into residential aged care (at [13]). The investigator was satisfied that CR’s expressed views were her genuine views, and not the product of any influence by any other party (at [14]). The investigator inspected the enduring power of attorney and the enduring power of guardianship and verified that they were correctly executed (at [14]).
HU’s evolving position
After the directions hearing, HU acknowledged to the investigator that he understood CR had capacity, but he did not believe D3 was the best person to manage CR’s affairs and considered that an independent party would be better placed to assist in splitting the parties’ assets (at [18]). HU also acknowledged that, during their marriage, he had made all of the decisions for CR and had managed their money (at [18]).
At the final hearing on 12 May 2026, HU confirmed his intention to press the application. His stated concern was that D3 had moved money out of joint accounts and he wanted someone to oversee her actions to ensure they were correct (at [19]). Member Bunney explained that this was not a function the Tribunal performs in a guardianship or administration application (at [19]). The investigator had earlier advised the parties that the Tribunal is not the correct jurisdiction to address concerns of that kind (at [20]).
The family’s position
Save for HU, all family members who attended the hearing agreed that the matter should be dismissed and that CR could make her own decisions (at [15]).
4. Analysis of the Court’s Reasoning
The presumption was not displaced
The Tribunal’s reasoning proceeded from first principles. At [7]–[12], Member Bunney set out the statutory framework and the Full Tribunal’s reasoning in GC and PC. Three features of the analysis are worth noting.
First, the medical evidence was unequivocal. Dr W’s report directly addressed the statutory threshold by stating both that CR had no medical condition giving rise to a mental disability and that she had capacity to make decisions across the relevant domains (at [16]). The report addressed the very question the Tribunal was required to determine.
Second, the corroborating evidence was overwhelming. The social worker confirmed that CR retained information (at [17]). The investigator from the Office of the Public Advocate verified the proper execution of the enduring documents and was satisfied that CR’s expressed views were her genuine views (at [14]). The remainder of the family agreed that CR could make her own decisions (at [15]).
Third, HU’s answer to the medical evidence — that the very fact CR did not wish to see him demonstrated incapacity (at [5]) — inverted the presumption. It treated CR’s exercise of autonomous decision-making as itself the proof of its absence. The Tribunal correctly identified that this reasoning misconceives the operation of s 4(3) and the Briginshaw standard that applies to its displacement.
The application was misconceived
At [26], Member Bunney found that HU had misunderstood the legal principles applicable to an application for guardianship or administration. That misunderstanding manifested in two distinct ways. First, HU did not accept that the presumption of capacity required clear and cogent evidence to set aside. Second, HU appeared to treat the Tribunal’s guardianship jurisdiction as a forum within which the division of matrimonial assets could be supervised. Both propositions are wrong as a matter of law, and a proceeding founded on either is properly described as misconceived in the sense recognised by Ormiston JA in State Electricity Commission of Victoria v Rabel and adopted in Laurent.
The application lacked substance
At [27], Member Bunney found that the application was also lacking in substance because HU’s position was untenable in law and could not succeed. This is a separate, although overlapping, basis for dismissal. The medical evidence was clear; the corroborating evidence was uniform; and the issues HU genuinely wished to ventilate were jurisdictionally beyond the Tribunal. The application disclosed no realistic prospect of success within the meaning of Chaney J’s formulation in Ambrus.
The jurisdictional boundary on property division
The Tribunal’s treatment of HU’s concerns about the joint accounts is significant. Member Bunney told HU in plain terms that the Tribunal does not perform an oversight role in respect of the actions of an enduring attorney as part of a guardianship or administration application (at [19]). The investigator had already conveyed the same message regarding division of marital property (at [20]). The decision underscores that a dispute about who should hold or manage assets between separating spouses is not converted into a capacity question simply because one of the parties is in hospital or has health concerns.
The role of s 47(3)
The procedural feature of s 47(3) — that the summary dismissal power is exercisable only by a legally qualified member — was satisfied by the matter being heard by Member Bunney, who is a legally qualified member of the Tribunal. The Senior Member at the directions hearing had explicitly programmed the matter into the s 47 path (at [6]), with the legally qualified member exercising the power at the final hearing.
5. Practical Consequences
The decision has consequences for several constituencies.
Consequences for proposed proposed represented persons
The decision reinforces the protective character of the Tribunal’s jurisdiction. Where an application is misconceived, the Tribunal’s protective function is discharged by terminating the application rather than by entertaining it. The proposed represented person is not required to endure a contested hearing in which their decision-making capacity is scrutinised when the medical evidence and the investigator’s report demonstrate that the threshold cannot be met.
Consequences for applicants
Applicants who decline an invitation to withdraw should be in no doubt that the application can be dismissed without any concession on their part. The decision does not address costs, and there is no general costs jurisdiction in the SAT in proceedings of this nature; nevertheless, the prospect of public dismissal under s 47, and the categorisation of the application as misconceived and lacking in substance, may itself be a deterrent.
Consequences for practitioners
A practitioner instructed by an applicant who is dissatisfied with the autonomous decisions of an adult who has been medically assessed as having capacity must advise candidly about the prospect of summary dismissal. The advice must distinguish between three categories of concern: a concern about capacity (which is a question for the Tribunal on appropriate medical evidence), a concern about how an attorney is exercising their power (which may be raised under the GA Act but on a different statutory basis), and a concern about the division of matrimonial property (which is for the Family Court of Western Australia).
Consequences for the Tribunal and the Office of the Public Advocate
The Public Advocate’s investigation in this matter was substantial. The investigator interviewed CR, satisfied herself as to genuineness of views and absence of influence, and inspected the enduring documents. The judgment indirectly underscores that misconceived applications absorb investigator time, hearing time and Tribunal resources that would otherwise be deployed in matters where capacity is genuinely in issue.
6. Worked Example
Consider the following hypothetical. MR is an 80-year-old woman with mild Parkinson’s disease and a longstanding hip condition. She has been married to NR for forty-five years. After a fall, she is admitted to hospital. While in hospital, MR decides she does not wish to return home to NR. She signs an enduring power of attorney appointing her daughter, EL, and tells the hospital social worker that she would like to be discharged to live with EL until alternative accommodation can be arranged. Her treating geriatrician’s report records that her cognition is intact and that she has capacity for personal, financial and legal decisions.
NR is shocked. He files an application for guardianship and administration. His concerns are framed as concerns about MR’s vulnerability, the suddenness of her change of mind, and his belief that EL has been pressuring MR. He also believes EL has improperly accessed a joint account.
Analysis from MR’s perspective
MR’s capacity is supported by clear and unequivocal medical evidence. The presumption of capacity is not displaced. The investigator’s task will be to satisfy herself that MR’s views are her own. If the investigator is satisfied of that, then, on the authority of CR, MR may apply, or the Tribunal may act on its own initiative, to have the application dismissed under s 47(2). MR’s solicitor should write to the applicant at the earliest opportunity inviting withdrawal and putting the applicant on notice that, if the application is not withdrawn, s 47 will be raised.
Analysis from NR’s perspective
NR’s solicitor must advise that, on the medical evidence, the application cannot succeed. The remedy for any concern about EL’s use of the joint account lies elsewhere: NR can take steps in the Family Court of Western Australia for property orders, and may take steps to recover any unauthorised withdrawals through the ordinary processes available between separating spouses. Concerns about an attorney’s exercise of power may, in appropriate circumstances, be raised with the Tribunal on a different statutory basis. Pressing the guardianship application in its current form is likely to result in dismissal, and NR must be advised accordingly.
7. Practitioner Guidance: A Step-by-Step Framework
When asked to advise in relation to a guardianship or administration application where capacity may be contested, practitioners should consider the following steps.
Step 1: Identify the real concern. Take detailed instructions and identify what the applicant truly wishes the Tribunal to address. A concern about capacity is a question of evidence. A concern about how an attorney is exercising their role engages different provisions of the GA Act. A concern about marital assets is a Family Court matter. Conflating these categories produces the kind of misconceived application that resulted in dismissal in CR (at [26]).
Step 2: Obtain or test the medical evidence. A current report from the treating doctor of the proposed represented person, addressing the statutory criteria in s 43(1) and s 64(1), will frequently be determinative. In CR, Dr W’s report addressed precisely the matters the Tribunal was required to decide (at [16]).
Step 3: Advise on the presumption and the Briginshaw standard. Clients should be told plainly that the presumption of capacity in s 4(3) is a fundamental principle, that clear and cogent evidence is required to set it aside, and that disagreement with the proposed represented person’s decisions — even sudden or surprising decisions — is not itself proof of incapacity (at [5], [9]).
Step 4: Direct the client to the correct forum. If the substance of the dispute is the division of marital property or supervision of an attorney’s conduct, the client should be told that the Tribunal is not the correct forum and that the proceeding may be dismissed under s 47 if pursued. CR makes this point in terms (at [19]–[20], [26]).
Step 5: Advise about s 47 risk. Where the application is unlikely to succeed on the medical evidence, advise the client in writing about the risk of summary dismissal as misconceived or lacking in substance under s 47(2). Document the advice on file.
Step 6: If acting for the proposed represented person, consider invoking s 47. Section 47(4) permits the Tribunal to act on the application of a party. A respondent or proposed represented person may apply for dismissal in advance of the final hearing. Even where the Tribunal proposes to act on its own initiative (as in CR), framing the case in s 47 terms focuses the Tribunal’s attention on the appropriate disposition.
Step 7: Use the directions hearing strategically. In CR, the directions hearing was the point at which the application could have been withdrawn (at [5]). For a practitioner acting for the proposed represented person, this is the most useful forum at which to put the medical evidence forward and seek either withdrawal or programming under s 47.
Step 8: Co-operate with the Public Advocate’s investigator. The investigator’s role is to ascertain the proposed represented person’s views and verify the relevant documents (at [13]–[14]). Practitioners should facilitate access and ensure that documents such as enduring powers of attorney and enduring powers of guardianship are produced for inspection.
Step 9: Recognise the procedural safeguard in s 47(3). The summary dismissal power may only be exercised by a legally qualified member. Where an applicant resists withdrawal, expect the matter to be programmed for hearing before a legally qualified member; if it is not, the practitioner acting for the proposed represented person should request that course (at [6]).
Step 10: Document the advice. The combination of the medical evidence and the s 47 risk should be conveyed in writing. If a client elects to proceed despite advice, the position should be recorded contemporaneously to address any later allegation about the propriety of pursuing the proceeding.
8. Evidence and Arguments Available to Each Side
For an applicant who genuinely believes capacity is in issue
An applicant must marshal evidence directed to the statutory criteria. The strongest applications are supported by current medical reports addressing s 43(1) and s 64(1) by reference to the relevant statutory questions. Generalised concerns about a proposed represented person’s vulnerability, even if genuinely held, are unlikely to satisfy the Briginshaw standard. Where the applicant has limited access to medical evidence, the appropriate step is to seek a direction at the first opportunity for the matter to be referred to the Office of the Public Advocate for an investigation and for a medical report to be obtained.
An applicant who genuinely believes that an enduring attorney is acting improperly must direct that concern to its proper statutory home. Concerns about marital property must be directed to the Family Court of Western Australia. To press a guardianship application as a proxy for either of those concerns is to invite dismissal under s 47, as occurred in CR (at [26]).
For the proposed represented person or a respondent
Where the proposed represented person has capacity, the most powerful evidence is the medical report of the current treating team, addressed to the statutory criteria. The report of Dr W in CR is a model of utility in this respect (at [16]). Beyond that, the proposed represented person should be in a position to demonstrate that their expressed views are genuine and not the product of influence, that any enduring documents have been properly executed, and that the family is broadly aligned on the question of capacity (at [13]–[15]).
A respondent should also be prepared to point the Tribunal to the proper forum for the applicant’s real concerns. In CR the Tribunal’s message on this was unambiguous (at [19]–[20]). The earlier this is identified in correspondence and in submissions, the more likely it is that an applicant will be persuaded to withdraw before final hearing.
9. Key Takeaways for Legal Practice
1. The presumption of capacity is robust. Section 4(3) of the GA Act enshrines a fundamental principle and clear and cogent evidence is required to set it aside.
2. Disagreement with a decision is not evidence of incapacity. The proposition that a proposed represented person who declines to see the applicant must therefore lack capacity is precisely the kind of reasoning that the Tribunal in CR identified as a misunderstanding of legal principle (at [5], [26]).
3. The guardianship jurisdiction is not a forum for marital property disputes. Concerns about division of assets between separating spouses, or supervision of an attorney’s use of joint accounts, must be raised elsewhere (at [19]–[20]).
4. Section 47 dismissal is available where an applicant refuses to withdraw. A proceeding that cannot succeed on the medical evidence is liable to be dismissed as misconceived and lacking in substance under s 47(2) of the SAT Act.
5. The Tribunal may act on its own initiative. Section 47(4) permits the Tribunal to dismiss a proceeding without any application from a party. In CR the Senior Member explicitly programmed the matter into the s 47 path at the directions stage (at [6]).
6. Only a legally qualified member may dismiss under s 47. Section 47(3) imposes a procedural safeguard, which was satisfied in CR by the matter being heard at final hearing by Member Bunney.
7. A sudden change of mind, properly explained, is not incapacity. The investigator was satisfied in CR that CR’s decision to separate and her opposition to HU acting as her decision-maker were her genuine views and were not the product of influence (at [13]–[14]).
8. Properly executed enduring documents are powerful evidence of capacity. The enduring power of attorney in CR was witnessed by a doctor (at [14]). Practitioners advising on the execution of such documents should consider, where appropriate, contemporaneous medical witnessing to support the documents against later challenge.
9. The Family Court is the proper forum for marital property questions. Practitioners must direct clients to that forum where the real grievance is about division of property, regardless of how the application is framed (at [19]–[20]).
10. The Tribunal’s protective role can be discharged by dismissal. The protective character of the GA Act jurisdiction extends to protecting the proposed represented person from misconceived applications. CR confirms that the Tribunal is willing to give that protection summary effect.
10. Conclusion
CR [2026] WASAT 53 is a short decision but a useful one. It records, plainly, that the Tribunal will not entertain a guardianship application that is pressed in defiance of clear medical evidence of capacity and that is animated, on closer examination, by concerns properly belonging to another forum. The decision affirms three propositions that practitioners will find useful in framing advice: the presumption of capacity is fundamental and not easily displaced; the Tribunal’s jurisdiction is not a vehicle for marital property disputes or attorney-supervision concerns; and the power in s 47 of the SAT Act will be used where an applicant declines an invitation to withdraw an application that cannot succeed.
For practitioners advising applicants, the message is one of forensic discipline. For practitioners advising proposed proposed represented persons, the case furnishes a clear pathway for early dismissal, and supports the position that engagement with the directions hearing and full co-operation with the Public Advocate’s investigator is generally the most effective way to bring a meritless application to an early end. For the Tribunal, the decision quietly affirms that its protective function is best discharged, in cases of this kind, by terminating the proceeding rather than enduring it.
All names used in this article are pseudonyms assigned by the State Administrative Tribunal of Western Australia. The judgment was published under those pseudonyms in accordance with the Tribunal’s standard practice in proceedings under the Guardianship and Administration Act 1990 (WA). No details in this article identify, or are intended to identify, any party, witness or associated person.