Jurisdiction to Make Administration Orders for Non-Residents in Western Australia

Introduction: The JCB Case

In a significant decision from early 2025, the Western Australian State Administrative Tribunal (SAT) addressed important jurisdictional questions regarding administration orders for non-residents. In JCB [2025] WASAT 1, the represented person had been subject to guardianship and administration orders in Western Australia since September 2020. In October 2022, JCB relocated to South Australia to live with her daughter, CCB. The Public Advocate subsequently applied to the South Australian Civil Administrative Tribunal (SACAT), which declined to make a guardianship order but appointed CCB as limited administrator for specific functions. This created potential jurisdictional conflict, as JCB still had assets managed by the Public Trustee in Western Australia.

When Can SAT Make Administration Orders for Non-Residents?

Legislative Basis

Section 67(1) of the Guardianship and Administration Act 1990 (WA) explicitly provides that an administration order may be made for a person who is not resident or domiciled in Western Australia. However, any such order is limited to the person's estate within Western Australia.

This provision establishes SAT's jurisdiction to make administration orders over incapable persons' property in Western Australia, regardless of whether they reside or are domiciled in the state. As noted in NCK [2004] WAGAB 6 at [54], this puts the Tribunal's jurisdiction beyond doubt.

What Constitutes "Estate" in Western Australia?

The term "estate" is not defined in the Act but has been interpreted to bear its ordinary meaning of "the collective assets and liabilities viewed as an aggregate" (SAL v JGL [2016] WASAT 63 at [23]).

In JCB, the Tribunal found that funds held in the Public Trustee's trust account for the represented person, as well as rights to claim compensation monies under a criminal injuries compensation claim, constituted "estate within Western Australia" over which an administration order could be made.

Recognition of Interstate Guardianship and Administration Orders

Sections 44A and 83D of the Act set out interjurisdictional arrangements for recognizing interstate guardianship and administration orders. These provisions allow relevant orders made under laws of another state or territory to be recognized in Western Australia.

However, this recognition only applies where a person "enters" Western Australia after the interstate order is made. In JCB, as there was no evidence that JCB had entered Western Australia since the SACAT orders were made in June 2024, section 83D had no application.

Full Faith and Credit Considerations

A significant legal question addressed in JCB was whether the "full faith and credit" provisions in the Commonwealth Constitution and federal legislation required SAT to recognize and give effect to the SACAT orders.

Section 118 of the Commonwealth Constitution provides that "[f]ull faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State." Section 185 of the Evidence Act 1995 (Cth) similarly requires that public acts, records and judicial proceedings of a state that are properly authenticated be given "such faith and credit as they have by law or usage in the courts and public offices of that State or Territory."

The Tribunal noted conflicting views on whether section 185 applies to tribunal proceedings and orders:

  1. In EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501, Young J determined that proceedings before the Guardianship Board in Victoria did not constitute "judicial proceedings" within the meaning of section 118 of the Constitution.

  2. Conversely, in Re PQR and the Protected Estates Act 1983 [2005] NSWSC 729, Campbell J found that orders made by the Guardianship and Management of Property Tribunal in the ACT were entitled to full faith and credit.

  3. In Ocalewicz v Joyce [2012] NSWSC 1163, Macready AsJ concluded that section 185 was applicable to a South Australian Guardianship Board's order.

The Tribunal in JCB ultimately determined that it retained discretion in how to give "full faith and credit" to interstate tribunal orders, particularly in light of the paramount consideration of the represented person's best interests.

Practical Implications for Practitioners

This decision has several important implications:

  1. Jurisdiction over WA Assets: SAT retains jurisdiction to make administration orders over assets located in Western Australia, even when the represented person has moved interstate.

  2. Dominance of Best Interests: The ultimate consideration in any guardianship or administration proceeding remains the best interests of the represented person, which can override considerations of full faith and credit.

  3. Discretionary Power: Even where interstate orders exist, SAT retains discretionary power to make different orders if satisfied they are in the represented person's best interests.

  4. Coordinated Approach: The Tribunal suggested that administrators should consider participating in interstate review proceedings to ensure consistent submissions and evidence across jurisdictions.

  5. Staggered Review Periods: In cases of jurisdictional overlap, SAT may set review periods that allow consideration of outcomes from interstate tribunal reviews.

Conclusion

The JCB decision clarifies that while a person's departure from Western Australia terminates jurisdiction for guardianship orders, administration orders can continue for assets remaining in the state. This highlights the importance of understanding jurisdictional boundaries in guardianship and administration law and ensures that represented persons' assets can be protected even when they relocate interstate.