An Analysis of MC [2026] WASAT 45
1. Introduction
In MC [2026] WASAT 45 Member Bunney refused leave under s 87(5) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the represented person’s daughter to bring a fresh review of guardianship and administration orders made by the Full Tribunal in March 2025. The decision is not novel in stating new law. Its value lies in the rigour with which Member Bunney applied the leave threshold articulated by the Full Tribunal in RK [2022] WASAT 112 to the recurrent factual pattern of a disappointed family member who, having unsuccessfully proposed themselves at the original hearing, returns within the review period seeking a second bite at the cherry.
For practitioners advising family members of represented persons, the decision crystallises four propositions that will defeat most such applications: re-litigating the prior factual findings is not a change of circumstances; dissatisfaction with day-to-day decisions of the Public Advocate or the Public Trustee is not a change of circumstances; changing one’s mind about wanting to be appointed is not a change of circumstances; and the very inability to cooperate that justified the prior orders may reappear at the leave hearing itself, providing direct evidence that the relevant circumstance has not changed.
The decision matters beyond MC and her family. It guides the advice that solicitors give to family members who are unhappy with appointments of the Public Advocate and the Public Trustee, and it informs the strategic choice between a fresh review application, a complaint through the appropriate complaints channel, or simply waiting for the next scheduled review.
2. Relevant Legal Framework
The statutory primary concern
Section 4(2) of the GA Act provides that the primary concern of the Tribunal in making decisions under the Act is the best interests of the person for whom the application is made. Section 4(7) requires the Tribunal, as far as possible, to seek to ascertain the views and wishes of the person concerned, as expressed at the time or as gathered from the person’s previous actions. These two provisions frame every decision the Tribunal makes under the Act, including a decision on leave to review.
Right of review and the leave threshold
Section 86 of the GA Act creates a right of review for persons directly involved in the implementation of orders — the Public Advocate, the Public Trustee, the represented person, the guardian and the administrator. Any other person who seeks a review must first obtain leave of the Tribunal. Section 87(5) provides that the Tribunal may grant leave only if it is satisfied that, because of a change of circumstances or for any other reason, a review should be held.
The RK framework
In RK at [38]–[44] the Full Tribunal articulated three reasons for the leave requirement and established the test that has governed leave applications under s 87(5) since: first, Tribunal proceedings are disruptive and cause anxiety for the represented person, so orders should be reviewed only on good reason; second, the Tribunal sets a review period having considered all the available evidence, and orders should not be reviewed early without good reason; third, because the Tribunal’s process is inquisitorial and depends on parties drawing all relevant matters to its attention, the leave threshold reinforces the obligation to put the case at the original hearing.
On the change-of-circumstances limb, RK requires a comparison between the circumstances that existed at the time of the challenged decision and those that exist at the time of the application for leave. An applicant for leave who was a party at the prior hearing and relies on a change of circumstance will ordinarily need to identify some new evidence: (a) not previously drawn to the Tribunal’s attention; (b) which is relevant to the appointment of a guardian or administrator; and (c) which was not known by the applicant, or could not reasonably have been ascertained, prior to the prior hearing: see RK at [41].
On the “other reason” limb, the reason must be such as to warrant revisiting the issues already dealt with by the Tribunal. RK gives two illustrations: a person who should have been notified of the prior hearing was not notified, or new evidence or an issue suggests that the challenged decision was not, or is no longer, in the represented person’s best interests: see RK at [43].
The dissatisfaction principle
In K [2025] WASAT 67 the Tribunal confirmed that frustration with decisions made under existing orders, and an assertion that the prior orders were made on incorrect information, do not constitute a change of circumstances. That principle was applied in MC [2026] WASAT 45 at [26] and [28]. It coheres with RK at [35], where the Full Tribunal observed that it is not the Tribunal’s role to “review the merits of the myriad of daily decisions which may be made by a guardian or administrator in the exercise of their decision-making authority”.
3. The Facts of the Case
MC and the original 2024 orders
MC is an 81-year-old woman with advanced dementia who, since November 2024, has lived in residential aged care due to her high care needs and complex medical issues: at [2]. She had previously lived with her daughter B, who was her carer: at [2].
In September 2024, while MC was an inpatient at Hospital A, the hospital applied to the Tribunal for guardianship and administration orders. The hospital’s concerns included B’s lack of cooperation and verbal aggression toward staff: at [3]. In October 2024 a single Member appointed the Public Trustee as MC’s plenary administrator and the Public Advocate as her limited guardian for accommodation, medical treatment and services: at [4].
The 2025 review and the contact function
B sought review of the 2024 Orders under s 17A of the GA Act, proposing herself for appointment: at [5]. The matter came before the Full Tribunal at a First Hearing in February 2025. The delegated guardian’s January 2025 report described continuing concerns about B’s behaviour at the nursing home, including an attempt to force MC into her car and remove her, and threats to staff that required police involvement: at [17]. The guardian sought an additional contact function to permit decisions about who MC would have contact with: at [17]. B terminated the call before the Tribunal could conclude: at [18].
At a Second Hearing on 26 March 2025 the Full Tribunal made the orders that became the subject of the present application (the 2025 Orders): at [19]–[20]. B, having earlier proposed herself, sought to withdraw her nomination as guardian and to be appointed jointly with the Public Trustee as administrator: at [19]–[20]. The Tribunal continued the appointments of the Public Advocate and the Public Trustee, expanded the guardian’s functions to include contact, and set a review date of 26 March 2030: at [5]. The Full Tribunal recorded that B was “unable to manage her emotions appropriately” and “fixated” on a misunderstood $500 annual gifting authority; B again terminated the call before the reasons concluded: at [21].
The 2026 leave application
In October 2025 B applied under s 86 of the GA Act to review the 2025 Orders: at [6]. The Tribunal directed that the question of leave would be determined at the hearing and, if granted, the review would proceed: at [6]. The hearing took place on 31 March 2026 before Member Bunney: at [7]. B, her brother M, their father J (MC’s former husband) and B’s son Z attended, along with the delegated guardian: at [7]. The grounds advanced by B and J as constituting a change of circumstances were that the 2025 Orders had been made on incorrect information, that the Public Trustee and Public Advocate were unprofessional and offensive, that mail addressed to B had been opened by the Public Trustee, and that B was suitable for appointment: at [23].
4. Analysis of the Tribunal’s Reasoning
Aggrievement with the prior decision
Member Bunney rejected the contention that the 2025 Orders had been made on incorrect information as a basis for leave: at [24]–[26]. B was a party at the First and Second Hearings, and the evidence about her discharge of MC from Hospital A had been before the Tribunal. Re-arguing that evidence is precisely the form of complaint that RK excludes from the change-of-circumstances limb. The Member’s observation at [24] that B felt “censored” by the requirement to confine the discussion to events since March 2025 is illustrative of the misunderstanding that often drives second-bite applications.
Dissatisfaction with the office holders
The Member found that dissatisfaction with the decisions of the Public Trustee and the Public Advocate is not a change of circumstances: at [27]–[28]. Two propositions emerge. First, the Tribunal is not the forum for merits review of operational decisions made by the Public Advocate or the Public Trustee in the exercise of their statutory functions; complaints belong with the appropriate complaints channels. Second, the existence of dissatisfaction with the office holders is, in any event, the predictable consequence of the very orders the family member opposed; without more, dissatisfaction therefore tells the Tribunal nothing about whether the orders are, or remain, in the represented person’s best interests.
Re-nomination is not a change
Member Bunney rejected B’s proposal that she be appointed sole guardian and administrator as a change of circumstances: at [33]. The decisive features were two. First, the matter of B’s suitability had been squarely before the Tribunal in 2025 and had been determined adversely to her. Second, B had “merely changed her mind between the First and Second Hearings” in 2025: at [33]. A subsequent change of mind is not a change in the circumstances surrounding the represented person within the meaning of s 87(5).
Behaviour at the leave hearing as evidence of continuity
Perhaps the most useful aspect of the Member’s reasoning, from a practitioner’s perspective, is the use made of B’s behaviour at the leave hearing itself: at [30]–[32]. B accused the Member of victim-blaming, described questions as “disgusting”, alleged the Member was about to throw something at her, and accused the Member of threatening her: at [30]. J intervened repeatedly to ask B to stop speaking, lower her voice and stop interrupting: at [31]. Member Bunney concluded at [32] that there was no discernible difference between B’s behaviour at the leave hearing and her presentation in February and March 2025. The behaviour relied on by the Full Tribunal in 2025 was not a transient state; it remained current in 2026. The leave hearing therefore furnished direct, contemporaneous evidence that the relevant circumstance — B’s inability to cooperate — had not changed.
“Some other reason”
Member Bunney found no “other reason” within the meaning of RK at [43]: at [40]. J’s late inquiry, after the decision had been reserved, as to whether he could be nominated as guardian and administrator was deliberately not weighed in the balance: at [35]–[36]. The Member expressly preserved J’s position to bring his own application: at [36]. The careful procedural treatment of J’s eleventh-hour proposal is itself instructive: an application for leave is not the occasion for a freewheeling reconsideration of every alternative appointee.
MC’s views and wishes
Section 4(7) requires the Tribunal to seek to ascertain the represented person’s views and wishes. Because of MC’s advanced dementia and the advice of the clinical nurse manager that attendance would be too distressing, MC did not attend: at [38]. The Member found that MC’s specific views about leave could not be ascertained: at [39]. The s 4(7) inquiry is one of effort, not result; where the represented person’s cognition cannot support an expression of view, the obligation is discharged by recording that fact.
5. Assessing the Consequences
The practical consequences of the decision can be grouped at three levels: for MC, for the family, and for the system.
Consequences for MC
The 2025 Orders remain in force until the scheduled review by 26 March 2030. The contact function added in 2025 remains operative, with the consequence that decisions about who MC has contact with, including the extent of contact with B, continue to be made by the Public Advocate. The decision insulates MC from a third Tribunal hearing within twelve months and from the disruption that the leave threshold is designed to prevent.
Consequences for the family
B has exhausted her present avenue and faces a further period until the next scheduled review. Three avenues remain open. First, J retains his ability to bring his own application for leave on his own grounds, although that application is in no better position than B’s if it depends on the same body of contested matters. Second, the family may make complaints about specific decisions of the Public Advocate or the Public Trustee through the appropriate complaints channels for those office holders. Third, fresh evidence — for example, a documented and sustained change in B’s capacity to cooperate, supported by independent observation — may, in time, satisfy s 87(5).
Consequences for the system
The decision is consistent with a body of recent SAT authority that draws a firm line between leave to review and merits review, and between change-of-circumstance applications and complaints about office-holder conduct. By doing so it preserves the integrity of the review period set at the original hearing, conserves Tribunal resources, and protects represented persons from repeated, distressing proceedings driven by family dynamics rather than by changes in their circumstances.
6. Worked Example
Consider this hypothetical scenario, designed to test the principles in MC against a slightly different fact pattern.
F is an 84-year-old man with moderate vascular dementia. In June 2024 the Tribunal appointed the Public Advocate as F’s limited guardian for accommodation, the Public Trustee as plenary administrator, and set a review date in June 2029. F’s son S, who proposed himself unsuccessfully at the original hearing, applies under s 86 in March 2026 for review.
Two grounds are advanced. The first is that S is unhappy with the way the Public Trustee has invested F’s superannuation proceeds, which are tied up in conservative term deposits while inflation erodes their real value. The second is a recent independent neuropsychological assessment, commissioned and paid for by S, which records that F’s recent measured cognition has improved on a small number of domains since 2024, attributed to a change in F’s antihypertensive medication.
Applying the framework
The first ground is precluded by the dissatisfaction principle confirmed in MC at [27]–[28] and K [2025] WASAT 67. S’s complaint is about the merits of an investment decision made by the Public Trustee in the exercise of its statutory functions; the proper avenue is a complaint to the Public Trustee, not a fresh review.
The second ground is materially different. It is new evidence, generated after the prior hearing, that bears on a matter central to the order — F’s capacity. It could not have been put before the Tribunal in 2024 because the change in cognition followed a change in medication that had not occurred. Whether that evidence is sufficient to warrant leave will depend on its substance: the assessment must be from a qualified clinician, must be specific in its findings about decision-making capacity, and must withstand the obvious criticism that it is funded by a relative who has an interest in the outcome. If those hurdles are met, the application is at least arguable on the change-of-circumstances limb in RK at [41].
The contrast between the two grounds illustrates the dividing line. Ground one is dissatisfaction; ground two is fresh evidence about the represented person, not the office holders. Only the second engages s 87(5).
7. Practitioner Guidance: A Step-by-Step Framework
The following sequence may be followed when a family member of a represented person seeks advice on whether to bring a fresh application under s 86 of the GA Act within the review period.
Step 1 Confirm whether leave is required
Identify whether the prospective applicant is a person directly involved in the implementation of the orders within the meaning of s 86. If the client is the represented person, the guardian, the administrator, the Public Advocate or the Public Trustee, no leave is required. Other family members, including adult children, parents and former spouses, must obtain leave: see MC at [10].
Step 2 Identify the basis for leave
Section 87(5) requires either a change of circumstances or some “other reason” that a review should be held. These are alternative limbs, not cumulative requirements: RK at [44]. Test each candidate ground against both limbs before settling on a primary submission.
Step 3 Apply the RK three-limb test for change of circumstances
If the client was a party at the prior hearing, ask: is there new evidence, relevant to appointment, that was not previously drawn to the Tribunal’s attention and which the client could not reasonably have ascertained at the time? RK at [41]. If any limb fails, the change-of-circumstances submission is unlikely to succeed.
Step 4 Consider the “other reason” limb
If the change-of-circumstances limb is unavailable, identify whether there is some other reason warranting revisitation — for example, a procedural failure such as want of notice, or new evidence suggesting the orders are no longer in the represented person’s best interests: RK at [43].
Step 5 Triage dissatisfaction-style complaints
Frame complaints about specific decisions of the Public Advocate or the Public Trustee for the appropriate complaints channel (the Office of the Public Advocate or Public Trustee complaints process, the Ombudsman of Western Australia or, in financial matters, the Trustee Companies Act mechanism), not for s 87(5). MC at [27]–[28] and RK at [35].
Step 6 Counsel on hearing conduct
If the application proceeds, counsel the client realistically on hearing conduct. Member Bunney’s use of B’s behaviour at the leave hearing as confirmation that the relevant circumstance had not changed (at [30]–[32]) is a clear warning that emotional dysregulation at the leave hearing can defeat the application even where the substantive grounds are weak.
Step 7 Consider alternative appointees
Where the client is unsuited to appointment but other family members are not, advise on the option of nominating an alternative appointee. The Member’s preservation of J’s position at [36] in MC indicates that alternative appointees are not required to be aggregated into the same application.
Step 8 Manage expectations on timing
Make clear that the Tribunal sets a review date for a reason and that, absent compelling material, parties should expect to wait for that date. The shortest realistic horizon for a meritorious fresh application is the time required to generate new, independent evidence of a change relevant to the orders.
8. Evidence and Arguments Available to Each Side
For the applicant (family member seeking leave)
Independent evidence of a documented change in the represented person’s cognition, capacity, accommodation or care needs, post-dating the challenged decision and not reasonably available at the time of that decision, is the strongest material: RK at [41]. Evidence that the applicant was not given notice of the prior hearing, or that an issue central to the orders was not before the prior Tribunal, may engage the “other reason” limb: RK at [43]. Evidence of a sustained and independently-observed change in the applicant’s own capacity to cooperate — not mere assertion — may, depending on context, be relevant where the prior decision turned on the applicant’s suitability.
For the respondent (Public Advocate, Public Trustee or other party resisting leave)
The most efficient response is to demonstrate that the matters relied on were before the prior Tribunal, were within the applicant’s knowledge at the time, or could reasonably have been ascertained. The applicant’s own application materials, written submissions and the transcript of the prior hearing will often suffice. Conduct at the leave hearing itself may be deployed, as in MC, to show that the relevant circumstance has not changed. Where the applicant complains about specific decisions of office holders, identifying the proper complaints avenue redirects the complaint and confirms that the Tribunal is not the forum.
9. Key Takeaways for Legal Practice
1. Re-litigating prior factual findings is not a change of circumstances. An applicant who participated in the prior hearing cannot satisfy s 87(5) by asserting that the prior Tribunal got the facts wrong: MC at [26]; K [2025] WASAT 67 at [14].
2. Dissatisfaction with the office holders is not a change of circumstances. The Tribunal does not review the merits of operational decisions of the Public Advocate or the Public Trustee; complaints belong with the appropriate complaints channel: MC at [27]–[28]; RK at [35].
3. Changing one’s mind about appointment is not a change of circumstances. Withdrawing a nomination at the prior hearing and re-nominating later does not engage s 87(5): MC at [33].
4. Conduct at the leave hearing is in evidence. If the applicant’s suitability turned in part on cooperation or emotional regulation, presentation at the leave hearing itself may furnish direct evidence on whether the relevant circumstance has changed: MC at [30]–[32].
5. The leave threshold protects the represented person. Tribunal proceedings are disruptive; the leave requirement reflects a parliamentary judgment that orders should not be reopened on the application of a non-statutory party without good reason: RK at [38]–[40].
6. Each potential applicant has their own position. A family member who was not a party at the prior hearing, or who relies on the “other reason” limb, is not aggregated with another family member’s application: MC at [36].
7. Procedural discipline matters. A late proposal made after a decision is reserved is unlikely to be entertained: MC at [35]–[37]. Counsel should ensure all grounds are advanced before the close of evidence.
8. Section 4(7) is an obligation of effort. Where the represented person’s cognition does not support the expression of a view, that fact should be recorded; it is not a barrier to a decision: MC at [38]–[39].
9. The systemic message is to do the work the first time. Section 87(5) reinforces the obligation to put the entire case to the Tribunal at the original hearing. Practitioners advising family members at the original hearing should ensure that suitability evidence — including evidence of capacity to cooperate with office holders — is squarely in evidence the first time round.
10. Conclusion
MC [2026] WASAT 45 does not announce new doctrine; it applies RK [2022] WASAT 112 with care to a recurrent fact pattern and, in doing so, illustrates the analytical discipline that s 87(5) demands. The leave threshold is not a formality. It is the gatekeeping mechanism that allows the Tribunal to set, and to honour, a review date by which the represented person and the office holders can plan, and which protects the represented person from the disruption of repeated, distressing proceedings.
The practical message for practitioners is this. Section 87(5) divides the post-orders landscape into three zones. The first is review on a change of circumstances or some other reason that warrants revisitation; the threshold is real and is most often met by independent evidence post-dating the challenged decision. The second is the complaints zone, which addresses the conduct of the Public Advocate and the Public Trustee in the discharge of their functions and lies outside the Tribunal. The third is the waiting zone, which the Tribunal, having heard all the evidence at the original hearing, has set deliberately and should be respected. Family members who treat all three zones as if they were the first will find, as B did, that the Tribunal does not.
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 usual practice in guardianship and administration matters of using single letters and initials in lieu of party names. No detail in this article is intended to identify, or capable of identifying, any party, witness, or associated person.