Scope and Costs Estimates in Legal Retainers: Lessons from Shi v Mills Oakley

Introduction: A Cautionary Tale

The Supreme Court of Victoria's decision in Shi v Mills Oakley [2020] VSC 498 serves as a stark reminder of the critical importance of proper costs disclosure and agreement in legal practice. The case involved a Chinese national with limited English proficiency who retained Mills Oakley initially to assist with the sale of shares in his company. What began as a commercial transaction evolved into complex litigation when the purchaser, Mr Wu, issued proceedings against Mr Shi in the County Court. When the matter concluded, the total legal costs exceeded $267,000—far beyond initial estimates—and the law firm's costs agreement was deemed void for non-compliance with disclosure obligations under the Legal Profession Uniform Law.

The Importance of Proper Scope Definition

One of the fundamental issues in Shi v Mills Oakley was the failure to properly redefine the scope of work when the matter evolved significantly. The initial costs agreement provided an estimate of $50,000 (plus disbursements and GST) for what was essentially pre-litigation commercial work. However, when Mr Wu issued proceedings in February 2018, the nature of the retainer fundamentally changed.

Judicial Registrar Gourlay stated in paragraph 45 of the judgment: "It may be reasonable to consider that, when the County Court proceeding was issued, a new retainer began that warranted a new costs agreement and costs disclosure being given considering that the change in the applicant's instructions was so substantial and Mr Wu commencing proceedings was unexpected after 12 months."

When Does a New Retainer Come into Being?

The Shi case provides valuable guidance on when a new retainer may be considered to have come into existence, requiring fresh costs disclosure. The court identified several key factors:

1. Substantial change in scope: When the nature of the legal services changes significantly from what was originally contemplated (in Shi, from commercial dispute to litigation defence)

2. Passage of time: The court noted the 10-month gap in work before the County Court proceedings as significant

3. New explicit instructions: Receipt of instructions to undertake work substantially different from the original retainer (defending formal proceedings versus negotiating a commercial dispute)

4. Unexpected developments: Events that weren't reasonably foreseeable at the time of the original retainer

Judicial Registrar Gourlay concluded at paragraph 46 that "on the receipt of instructions to defend the Writ a new matter and a new retainer began. Therefore, any earlier costs estimate, including the one given on 11 November 2016, that did not consider the possibility of defending proceedings against Mr Shi has failed to comply with the disclosure requirements of s 174(1)(a) and (b)."

Legal Requirements for Costs Disclosure Under the Uniform Law

The case turned on the interpretation of sections 174 and 178 of the Legal Profession Uniform Law. Section 174(1) requires a law practice to:

• Provide the client with information disclosing the basis on which legal costs will be calculated and an estimate of total legal costs; and

• Provide updated information promptly when there is any significant change to anything previously disclosed.

Importantly, "legal costs" is defined in section 6 to include disbursements—a point that Mills Oakley failed to address adequately in their estimate. The court noted that each estimate specifically excluded disbursements, contrary to the definition of "legal costs" under the Act.

Updating Costs Estimates When Circumstances Change

The most significant lesson from Shi v Mills Oakley relates to the obligation to provide updated costs disclosures when circumstances change materially. Despite the matter evolving from a commercial dispute into full-blown litigation spanning multiple days of trial, the law firm's updates were found to be inconsistent and inadequate.

The court noted at paragraph 44 that: "It is clear that an estimate of total legal costs was never provided to the applicant. Each of the costs disclosures given were limited in some way or other by making reference to earlier conversations or by only disclosing future legal costs that excluded some disbursements."

The court was particularly critical of the practice of referring to earlier verbal estimates from 16 months prior, and of providing estimates that excluded foreseeable disbursements such as interpreters, subpoena costs, and transcript fees.

Consequences of Non-Compliance: The Void Agreement

The consequences of failing to comply with disclosure obligations are severe and non-discretionary. Section 178(1) plainly states that if a law practice contravenes the disclosure obligations, "the costs agreement concerned (if any) is void."

The court rejected the law firm's arguments that the approach to disclosure requirements should be "moderated by the fact that nobody knows the future." Citing Johnston v Dimos Lawyers [2019] VSC 462, Judicial Registrar Gourlay emphasized at paragraph 43 that: "Any failure to comply with any of the provisions in relation to disclosure in Part 4.3 of the Act renders the costs agreement void. Non-compliance therefore equals void. There is no discretion to be exercised around 'substantial' compliance."

The practical effect in Shi was that costs for work undertaken in 2016 and 2017 were to be taxed at the rates in the costs agreement, but costs for work after March 2018 (when the matter significantly changed) would be taxed on the County Court scale.

Distinguishing Johnston v Dimos Lawyers

The court distinguished Shi from Johnston v Dimos Lawyers [2019] VSC 462, where a costs agreement was also held void but costs were assessed by reference to the rates in the void agreement. In Johnston, the client had been given "a surprisingly accurate estimate of total legal costs" from the outset, and the non-compliance was considered "technical" in nature (a verbal rather than written estimate).

By contrast, in Shi, the estimates were neither accurate nor comprehensive, with no evidence that the law firm took steps to ensure the client (who had limited English proficiency) understood the costs implications as required by section 174(3).

Best Practices for Practitioners

To avoid finding yourself in a similar situation, consider these best practices:

1. Provide comprehensive initial estimates: Ensure estimates include all foreseeable costs, including disbursements, and are based on clearly disclosed charge rates.

2. Document all costs discussions: Unlike in Johnston v Dimos Lawyers where the law firm had detailed file notes of verbal cost estimates, Mills Oakley failed to produce documentation supporting their claimed discussions.

3. Recognise when a new retainer exists: When a matter fundamentally changes in scope, involves a significant time gap, requires substantially different work, or encounters unexpected developments, issue a new costs agreement rather than simply updating the old one.

4. Provide regular, written updates: Section 174(6) mandates that disclosures be in writing. Verbal estimates, while valuable, do not satisfy the statutory requirements.

5. Include all elements of "legal costs": Remember that "legal costs" include disbursements—excluding them from an estimate contravenes the Act.

6. Document client understanding: Section 174(3) requires that the law practice "take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs."

Conclusion

The Shi v Mills Oakley decision emphasises that costs disclosure is not merely an administrative burden but a cornerstone of the solicitor-client relationship. The court's analysis provides valuable guidance on when a new retainer comes into existence, requiring fresh costs disclosure—particularly when litigation commences unexpectedly after a period of relative inactivity.

Practitioners should view proper disclosure as an opportunity to build trust and clarity with clients. When scope changes significantly, a new retainer is likely formed, requiring a new costs agreement with comprehensive, written estimates that include all elements of legal costs as defined by the Act.

Failure to recognise when a new retainer has formed and to provide appropriate disclosure not only risks rendering your costs agreement void but may also damage the client relationship and potentially constitute unsatisfactory professional conduct.

In an environment where clients are increasingly cost-conscious, the lessons from Shi v Mills Oakley [2020] VSC 498 serve as a valuable reminder that clarity in costs is not just good practice—it's the law.

The "Interests of Justice" Exception in Defamation Costs Awards

Introduction: McIntosh v Peterson

The recent Western Australian Supreme Court decision in McIntosh v Peterson [No 3] [2024] WASC 446 provides valuable insights into how courts apply the "interests of justice" exception when awarding costs in defamation matters. In this case, veterinary clinic owners Andrew and Kay McIntosh, along with their business For Paws and Feathers Pty Ltd, sued animal rights activist Natasha Peterson, Jack Higgs, and V-Gan Booty Pty Ltd over a defamatory Facebook post. While the McIntoshes succeeded against Peterson and Higgs (receiving damages totalling $280,000), the claim against V-Gan Booty was dismissed, as were claims for injurious falsehood and civil conspiracy. When it came to costs, Chief Justice Quinlan had to navigate the complex interplay between statutory provisions, litigation conduct, and competing interests to determine the appropriate costs order.

The Statutory Costs Regime in Defamation Law

Defamation law in Australia provides a specific costs regime that differs from the usual "costs follow the event" principle. Section 40 of the Defamation Act 2005 (WA) creates a presumption in favour of indemnity costs in certain circumstances but subjects this to the overriding "interests of justice" exception.

Under s 40(2)(a), if defamation proceedings are successfully brought and the court is satisfied that the defendant "unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff," the court must order costs to be assessed on an indemnity basis - "unless the interests of justice require otherwise."

This "interests of justice" exception gives courts significant discretion to consider broader factors when determining costs, even where the statutory trigger for indemnity costs has been activated.

When Do the "Interests of Justice" Override the Presumption?

In McIntosh v Peterson [No 3], Chief Justice Quinlan found that the defendants had unreasonably failed to make a reasonable settlement offer. The defendants' offers of just $2,000 were found to be unreasonable in the circumstances, given that the plaintiffs had already suffered adverse effects and incurred costs. This triggered the presumption in favour of indemnity costs under s 40(2)(a).

However, His Honour went on to find that "the interests of justice require otherwise" for several important reasons:

1. The way parties conducted their cases: Section 40(1)(a) expressly allows the court to consider "the way in which the parties to the proceedings conducted their cases." In this case, the plaintiffs' counsel conducted cross-examination of Ms. Peterson in a particularly problematic manner by making unfounded allegations about her tax affairs. The cross-examination suggested she had declared only $70,000 in receipts from OnlyFans when her actual receipt was $385,000, implying tax fraud. In reality, Ms. Peterson had properly declared all income across her personal and company tax returns. This unfair attack on Ms. Peterson's character was reported in the media, causing reputational harm beyond the proceedings themselves.

2. Mixed success: The plaintiffs were wholly unsuccessful against V-Gan Booty Pty Ltd and failed in two entire causes of action (injurious falsehood and civil conspiracy).

3. Focus of the litigation: The plaintiffs' case had significant focus on Ms. Peterson's financial affairs and V-Gan Booty Pty Ltd's OnlyFans business, which the court found "permeated the plaintiffs' case" but was ultimately unnecessary to establish their defamation claims.

Understanding "Conducting a Case" in Context

The concept of how a party "conducts their case" is particularly important in defamation proceedings, where litigation tactics can significantly affect both the course of the proceedings and reputational impacts beyond the courtroom.

In McIntosh, the plaintiffs' conduct of their case extended beyond merely presenting their claims. Their litigation approach included:

1. Pursuing multiple defendants and causes of action, including against a company not incorporated at the time of the original Facebook post

2. Making an "elaborate case" suggesting Ms. Peterson's animal rights activism was "a ploy for making money"

3. Conducting cross-examination in a way that made serious allegations about tax impropriety that were unfounded and misleading

4. Focusing significantly on Ms. Peterson's financial affairs, which Chief Justice Quinlan found unnecessary for vindicating the plaintiffs' reputations

Quinlan CJ stated that "a party that conducts proceedings in that way should expect that it has costs consequences." This demonstrates that how parties choose to litigate defamation claims—particularly their focus, tactics, and treatment of opposing parties—can directly impact costs outcomes despite the statutory presumption.

Practical Implications for Litigants

The McIntosh decision offers several practical lessons for litigants:

1. Early resolution is crucial: The court described the settlement offers as revealing "the anatomy of a lost opportunity at resolution and... the metastatic effect that legal costs have on the prospect that proceedings can sensibly be resolved." Chief Justice Quinlan observed that much of the harm suffered by the plaintiffs could have been avoided if the matter had been resolved early.

2. Make reasonable settlement offers: Defendants should make genuine attempts to resolve matters with reasonable offers. The sum of $2,000 was deemed "simply unreasonable" even at an early stage.

3. Consider proportionality: In McIntosh, the court noted that some claims (particularly the clinic's claim) were relatively minor in monetary terms and even fell within the monetary jurisdiction of the Magistrates Court jurisdiction.

4. Focus on reputation restoration: Defamation proceedings should focus primarily on vindicating reputation rather than attacking the defendant's character beyond what is necessary for the claim.

5. The "interests of justice" exception has meaningful application: Even when the statutory preconditions for indemnity costs are met, courts retain a genuine discretion to make different orders where the interests of justice require.

Distinguishing Indemnity Costs from Special Costs Orders

It's important to note that the judgment in McIntosh also addressed a separate costs issue: whether to make a "special costs order" under s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) to remove limits imposed by the relevant costs determinations. This is distinct from the question of indemnity costs under the Defamation Act.

While the court declined to award indemnity costs under s 40(2) of the Defamation Act, it did make a limited special costs order allowing:

• Removal of time limits for preparation of the case

• An increased hourly rate for counsel (to match senior counsel rates)

This highlights that courts have multiple tools for addressing costs and will apply them proportionately based on the specific circumstances of each case.

Conclusion

The "interests of justice" exception in s 40(2) of the Defamation Act provides courts with important flexibility to ensure costs orders reflect the overall conduct of proceedings and achieve fairness between parties. As demonstrated in McIntosh v Peterson [No 3] [2024] WASC 446, even where a party has technically triggered the presumption in favour of indemnity costs, the court will look holistically at all relevant circumstances.

For defamation practitioners, this case serves as an important reminder that how you conduct litigation—from the framing of claims to cross-examination tactics—can significantly impact costs outcomes. The interests of justice require not just consideration of who won, but how they won, and whether their conduct throughout the proceedings merits the significant benefit of indemnity costs.

Individual Sensitivities in Defamation Damages: Taking Plaintiffs As You Find Them

Introduction: The Michelmore Case

In a recent Western Australian defamation case, Michelmore v Brown [No 3] [2025] WASC 9, the Supreme Court of Western Australia awarded damages to a legal practitioner who had been defamed by former clients. The case involved two defamatory emails – one sent by a single defendant and another sent by multiple defendants – containing statements that seriously impugned the lawyer's integrity and professional competence. Justice Tottle found the statements were "grossly defamatory," had "no foundation in fact," and were "wholly indefensible." The court awarded $70,000 for the first email and $90,000 for the second email, with both amounts including aggravated damages.

The Egg-Shell Skull Rule in Defamation

One of the key considerations in assessing damages for defamation is the principle that defendants must "take their plaintiffs as they find them." This concept, similar to the "egg-shell skull" rule in personal injury law, recognizes that individuals may react differently to defamatory publications based on their personal sensitivities and circumstances.

As Justice Tottle noted in Michelmore, citing Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, "damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment." This principle acknowledges that the harm caused to plaintiffs by defamatory material often lies more in their own feelings about what others might be thinking about them than in any actual change in the attitudes of others toward them.

Individual Sensitivity and Damage Assessment

When assessing damages in defamation cases, courts consider several factors related to a plaintiff's individual sensitivity:

1. Personal and professional reputation: In Crampton v Nugawela (1996) 41 NSWLR 176, applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291, the court emphasized that damage awards should "reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment."

2. Subjective impact of the defamation: Courts recognize that the same defamatory statement might affect different plaintiffs in vastly different ways, depending on their personal circumstances, position in society, and psychological makeup.

3. The plaintiff's actual distress: While damage to reputation is presumed and need not be proved, evidence of actual distress can influence the quantum of damages. In Michelmore, the court accepted evidence of the significant distress experienced by the plaintiff, including her testimony that she felt "her stomach had dropped out of [her] body" upon reading one of the defamatory emails.

Balancing Subjective and Objective Elements

Despite the importance of individual sensitivities, courts maintain a balancing approach. As noted in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, there are three purposes served by damages in defamation:

1. Consolation for personal distress and hurt

2. Reparation for harm to reputation

3. Vindication of the plaintiff's reputation

The first two purposes address the subjective harm to the plaintiff, while the third looks more objectively at how others might perceive the plaintiff following the defamation. In Michelmore, Justice Tottle noted that "the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff's reputation," drawing on principles established in Carson v John Fairfax & Sons Ltd.

Impact of Defendant's Conduct

The court in Michelmore also considered the defendants' conduct in assessing damages. Citing principles from Triggell v Pheeney (1951) 82 CLR 497 and as explored in Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1 Qd R 89, damages may be aggravated by the defendant's conduct before, during, and after publication.

Justice Tottle found that the defendants' failure to apologize and their persistence in maintaining unfounded allegations throughout the proceedings significantly aggravated the plaintiff's injury. This is consistent with the principle articulated in Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 that a respondent's failure to provide any apology is pertinent to the assessment of damages.

Conclusion

The Michelmore case reaffirms that when assessing damages in defamation cases, courts will consider the individual sensitivities of plaintiffs while balancing this against objective factors. As stated in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, the assessment of damages involves "a mixture of inextricable considerations."

For defendants, this means understanding that the law requires them to take plaintiffs as they find them – with all their unique sensitivities and vulnerabilities. For plaintiffs, it means that the law recognizes that defamation can cause significant subjective harm, even when others might not perceive any change in a plaintiff's standing or reputation.

As defamation law continues to evolve in the digital age, this principle – that damages should reflect both the objective harm to reputation and the subjective harm to feelings – remains a cornerstone of how courts approach the complex task of compensating defamation victims.

Defamatory Imputations: How Courts Determine What Words Really Mean

Recent Case Example: JABBIE v GBANGAYE

In a recent Supreme Court of Western Australia decision, JABBIE v GBANGAYE [2025] WASC 73, the Court examined defamation arising from a podcast that was livestreamed on Facebook. The case involved two women who had come to Australia as refugees from Liberia. The defendant, a self-styled "talk-show host," made serious allegations about the plaintiff during a podcast discussing the murder of Janet Dweh. The plaintiff's estranged husband had been arrested and charged with the murder three weeks prior to the podcast. The Court found that the defendant made statements implying the plaintiff was complicit in the murder, that she was a violent person, that she had harassed the victim, and that she practiced witchcraft. These defamatory statements were widely viewed within the Liberian community in Australia and internationally. The plaintiff was awarded $325,000 in general damages and $70,400 in special damages.

Understanding Defamatory Imputations

When determining whether something is defamatory, courts consider two key questions: what meaning do the words convey (the imputation), and is that meaning defamatory? In legal terms, an "imputation" refers to the meaning that ordinary reasonable people would take from the publication.

As noted in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506, these questions involve "the meaning of the words used (the imputation) and the defamatory character of the imputation." Both are assessed through the lens of the ordinary, reasonable reader or viewer.

The Ordinary Reasonable Person Standard

Courts apply a single standard—that of the "ordinary reasonable person"—which yields a single meaning from potentially competing interpretations. This approach was affirmed in Trkulja v Google [2018] HCA 25; (2017) 263 CLR 144 at [32], where the High Court described the exercise as "one in generosity and not parsimony."

The ordinary reasonable person:

• Is not a lawyer examining the publication with legal scrutiny

• Views the publication casually

• May be prone to "loose thinking"

• Reads between the lines based on general knowledge and experience

• Draws implications much more freely than a lawyer, especially derogatory ones

• Takes into account emphasis given by headlines or captions

This means that courts interpret potentially defamatory content from the perspective of how average people would understand it, not through technical legal analysis.

Different Types of Imputations: Natural Meaning and True Innuendo

Defamation law recognizes two ways imputations can arise:

Natural and Ordinary Meaning

This refers to the meaning that would be understood by an ordinary reasonable person without any special knowledge. In JABBIE v GBANGAYE, statements like "you Charlene will never go free ... your hands are behind the death of Agnes" conveyed a clear imputation that the plaintiff was complicit in murder through their natural and ordinary meaning.

True Innuendo and Extrinsic Facts

True innuendo arises when words seem innocuous on their face but become defamatory when combined with extrinsic facts known to the audience. For example, in Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid explained that a statement might appear innocent to those without special knowledge but defamatory to those who possess certain background information.

Extrinsic facts are facts not contained in the publication itself but known to some or all of the audience. These facts can transform seemingly innocent statements into defamatory ones. For a true innuendo case to succeed, a plaintiff must:

1. Plead the extrinsic facts

2. Prove these facts were known to at least some recipients of the publication

3. Demonstrate how these facts, combined with the published words, conveyed the defamatory imputation

While not explicitly analysed in the JABBIE v GBANGAYE case, true innuendo represents an important concept in defamation law that deserves exploration. This differs from what happened in JABBIE, where the court found the imputations about witchcraft were conveyed through the ordinary meaning of terms like "juju" and "medicine" within the context of the publication. Justice Tottle simply held that "the ordinary reasonable viewer of the podcast would understand the references to juju and witchcraft to refer to the plaintiff" without requiring any special knowledge outside the publication.

A Step-by-Step Guide to Drafting and Proving True Innuendo Imputations

To illustrate how true innuendo works in practice, consider the following fictional example:

Imagine a local newspaper publishes: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712." On its face, this statement merely describes a doctor leaving a hotel, which is not inherently defamatory.

Step 1: Identify the Extrinsic Facts

The plaintiff (Dr. Thompson) must first identify the extrinsic facts that transform the innocent statement into a defamatory one:

• Dr. Thompson is a respected family physician who serves as an examiner for medical certification tests

• Medical certification examinations were scheduled at the university the following day

• The Grand Hotel is where out-of-town students stay when taking these exams

• Room 712 was occupied by a student who was scheduled to take the exam the next day

• The medical board has strict rules prohibiting examiners from having private meetings with students before examinations

Step 2: Draft the True Innuendo Imputation

The plaintiff must clearly articulate how these extrinsic facts combine with the published words to convey a defamatory meaning: "The words meant and were understood to mean that the plaintiff was compromising the integrity of medical examinations by privately meeting with a student before their test, thereby acting unethically, violating professional standards, and abusing his position of trust as an examiner."

Step 3: Plead the Publication, Words, and Extrinsic Facts

In court documents, the plaintiff must carefully articulate all elements of the case:

• Quote the exact words published: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712."

• Clearly identify the publication details (date, newspaper name, circulation numbers, page number)

• Explicitly plead each extrinsic fact, including:

• Dr. Thompson's role as a medical examiner for upcoming certification tests

• The scheduled examinations at the university the following day

• The Grand Hotel's status as lodging for out-of-town exam candidates

• Evidence that a student scheduled for examination was staying in Room 712

• The medical board's ethical guidelines prohibiting private meetings between examiners and candidates prior to examinations

• Connect these facts to show how readers with knowledge of these circumstances would understand the defamatory meaning implied by the otherwise innocent statement

Step 4: Prove Knowledge of Extrinsic Facts

The plaintiff must demonstrate that at least some recipients of the publication possessed knowledge of the extrinsic facts:

• Testimony from fellow medical professionals who read the article and recognized Dr. Thompson as an examiner for the upcoming tests

• Evidence showing awareness within the medical community about which students were staying at the Grand Hotel for examinations

• Witness statements confirming common knowledge about Room 712's occupant

• Documentation of the medical community's familiarity with ethical guidelines regarding examiner-candidate interactions

• Evidence that readers connected the timing of the hotel visit with the next day's scheduled examinations

Step 5: Demonstrate How Meaning Arises

The plaintiff needs to establish the logical connection between the published words and the extrinsic facts:

• Explain why readers with knowledge of the examination schedule would find significance in a midnight visit to a specific room

• Demonstrate how readers familiar with medical ethics would interpret a late-night visit to a candidate's hotel room as improper

• Show why the combination of Dr. Thompson's examiner status, the timing of the visit, and the identity of the room's occupant would lead reasonable readers to infer unethical conduct

• Present evidence that readers actually drew this conclusion upon reading the article

Step 6: Address Potential Defences

Anticipate and counter potential defences the publisher might raise:

• If the defendant claims the extrinsic facts were not sufficiently widespread, provide evidence of their community knowledge

• If the defendant argues readers would not draw defamatory meaning even with knowledge of these facts, present testimony from actual readers who did make this connection

• Counter any claim of an "innocent explanation" by showing why readers would more likely infer impropriety given the specific context

• Address potential truth defences by distinguishing between the literal truth of the statement (Dr. Thompson visited the room) and the false defamatory imputation (that he was compromising examination integrity)

• Prepare for arguments that the statement was merely opinion by demonstrating that the imputation presents as a factual assertion

These steps form a comprehensive approach for establishing and proving a true innuendo case, showing how seemingly innocent words become defamatory when interpreted by readers who possess specific background knowledge about the situation.

When Imputations Are Conveyed

In JABBIE v GBANGAYE, the defendant admitted some imputations were conveyed by her words but denied others. The Court found that serious imputations were indeed conveyed, including that the plaintiff was complicit in murder.

It's important to note that the vehemence with which statements are made can overwhelm qualifiers like "allegedly" or "I believe." As Justice Tottle observed, "in the context of a publication on social media the ordinary reasonable viewer would not have attached any significance to the words 'allegedly' or 'I believe'."

No Defence for Repeating Rumours

A critical principle reinforced in this case is that publishing defamatory statements about a person prefaced by qualifying words does not protect the publisher from liability. As Lord Denning colourfully stated in Associated Newspapers Ltd v Dingle [1964] AC 371 at 410:

"Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation. He must answer for it just as if he had started it himself."

This principle was similarly expressed in King v Telegraph Group Ltd [2004] EWCA Civ 613 at [22], where the Court held that a person who repeats a defamatory statement about another can only succeed in justifying the statement by proving the truth of the underlying allegation, not merely the fact that the allegation has been made.

The Defamatory Character of Imputations

For an imputation to be defamatory, it typically:

• Lowers a person's standing in the community

• Lowers the estimation in which people hold that person, or

• Causes people to think less of the plaintiff

As established in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, the test is whether the publication would tend to lead ordinary reasonable members of society to think less of the plaintiff.

In practice, once the meaning of words is determined, whether that meaning is defamatory is often straightforward. In JABBIE v GBANGAYE, the imputations that the plaintiff was complicit in murder, practiced witchcraft, and was violent were plainly defamatory.

Context Matters

The context in which statements are made can significantly influence how imputations are understood. In social media publications, inflammatory and emotive language can amplify the defamatory nature of statements. The Court in JABBIE v GBANGAYE noted that the defendant's comments "were calculated to excite condemnation of the plaintiff" and that she "made no attempt at balance or restraint."

Conclusion

Understanding how courts determine defamatory imputations is crucial for both plaintiffs and defendants in defamation proceedings. The law recognizes that words can carry meanings beyond their literal interpretation and that these meanings are assessed from the perspective of ordinary people, not legal experts.

Whether you're a content creator, social media user, or someone potentially affected by defamatory content, it's important to understand that courts look beyond technical qualifiers like "allegedly" to determine the real message conveyed to audiences. As JABBIE v GBANGAYE demonstrates, the repetition of serious allegations, even when framed as rumours or speculation, can lead to substantial damages when they harm someone's reputation.

The complexities of true innuendo and extrinsic facts further highlight the need for careful consideration of context and audience when assessing potential defamation risks. What might seem harmless to one audience could be deeply defamatory to another who possesses the relevant background knowledge.

Common Law Qualified Privilege in Australian Defamation Law

Introduction

The law of defamation serves to protect personal reputation, but there are situations where the law recognizes that potentially defamatory statements should be protected for the broader public good. One such protection is the defence of qualified privilege, which provides immunity for certain communications made in specific contexts. As a defence, qualified privilege acknowledges that in some circumstances, freedom of communication outweighs the protection of reputation. This blog post explores the principles and application of common law qualified privilege in Australian defamation law, examining key cases that have shaped this important area.

The Conceptual Basis of Common Law Qualified Privilege

The foundation of common law qualified privilege was articulated in the landmark case of Adam v Ward [1917] AC 309. The House of Lords outlined that a privileged occasion arises where:

"the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

This reciprocity requirement remains the cornerstone of qualified privilege. The defence acknowledges that there are situations where society benefits from the free exchange of information, even if that information might be defamatory. As noted in Toogood v Spyring (1834), the defence protects communications that are made "for the common convenience and welfare of society."

In essence, qualified privilege creates a rebuttable presumption against malice. Where an occasion of qualified privilege exists, the plaintiff must prove "malice in fact" to defeat the defence. Whether an occasion is privileged is a question of law for the judge to decide, assuming the facts are not in dispute.

Categories of Qualified Privilege

Over time, the courts have recognized several categories where qualified privilege may apply. These are not exhaustive but represent common situations where the defence has been successfully invoked.

Statements Made Under a Duty to a Person with an Interest

This category applies when the speaker has a duty to make the statement to someone who has either a duty to receive it or an interest in receiving it. In Beach v Freeson [1972] 1 QB 14, a member of Parliament wrote to the Law Society and the Lord Chancellor complaining about the conduct of two solicitors. The court held that the MP had a social or moral duty to communicate this information, particularly as he had received multiple complaints about the firm.

Interestingly, while the Law Society's interest in receiving such information was clear (as it had disciplinary powers), the court also found that the Lord Chancellor had a sufficient interest despite lacking direct disciplinary authority. This was because solicitors were officers of the court, and the Lord Chancellor was ultimately responsible for the machinery of justice.

Commercial contexts can also give rise to qualified privilege. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the High Court held that the defence was available to a publisher of an occupational health and safety bulletin containing defamatory allegations. The court emphasized that what distinguished this publication from other paid publications was "the narrow focus of both its subject matter and its readership" which created the necessary reciprocity of duty or interest.

Statements in Public Functions or Election Campaigns

Another category includes statements made in carrying out public functions or participating in election campaigns. Debate within municipal councils on local affairs typically attracts qualified privilege, as does certain election campaign communications.

In Braddock v Bevins [1948] 1 KB 580, the Court of Appeal took a robust approach to qualified privilege regarding election addresses. The court found that statements in a candidate's election address concerning an opposing candidate were privileged, provided they were relevant to matters electors would consider in casting their votes. The court reasoned that:

"The task of the electors under democratic institutions could not be satisfactorily performed if such a source of relevant information bona fide given were to be cut off by the fear of an action for libel."

This approach was somewhat tempered in Australian jurisprudence by Lang v Willis (1934) 52 CLR 637, where Dixon J and Evatt J took the view that participation in an election campaign did not create a general occasion of qualified privilege and that defamatory statements made during a public address in such a campaign would normally not be entitled to that defence.

However, in Roberts v Bass (2002) 194 ALR 161, the High Court revisited this issue. Several judges concluded that qualified privilege should attach to:

"statements by electors, candidates and their helpers published to the electors of a state electorate on matters relevant to the record and suitability of candidates for the election."

Protection of Family and Personal Relationships

The courts have also recognized that family and personal relationships might give rise to qualified privilege, though there is limited recent authority on this. In Watt v Longsdon [1930] 1 KB 130, Scrutton LJ acknowledged the difficulty in this area, noting:

"It is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case."

This area demonstrates the significant judicial discretion involved in determining qualified privilege, with courts needing to evaluate whether a moral or social duty exists based on the specific relationship and circumstances.

Statements for the Protection of One's Own Interests

A fourth category protects statements made by a person in furtherance of their own interest to someone who has a duty to receive the information or an interest in receiving it. This requires the same reciprocity element as other categories.

An example would be a shareholder in a company bringing alleged wrongdoing by directors to the attention of regulatory bodies or the Stock Exchange. The shareholder has an interest in addressing the misconduct, and the regulatory bodies have an interest or duty in receiving such information.

In Aktas v Westpac Banking Corporation Ltd (2010) 268 ALR 409, the High Court considered whether a bank's endorsement "Refer to Drawer" on dishonored cheques was privileged. A majority of the court found no reciprocity of interest between the bank and payees where the drawer had sufficient funds to meet the cheques, illustrating the nuanced analysis this category requires.

Responding to an Attack

A well-established category of qualified privilege protects statements made in response to an attack by the plaintiff. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, the High Court recognized that defamatory statements made in response to an original attack may be entitled to qualified privilege.

The extent of permitted response was addressed in Penton v Calwell (1945) 70 CLR 219, where Dixon J noted that:

"the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant."

However, the defence is not unlimited. The response must be proportionate, and as noted in Kennett v Farmer [1988] VR 991, a riposte to a retort (a response to a response) generally wouldn't be protected. The court reasoned that allowing an initial defamer a privileged right of reply to the victim's defence would "severely inhibit his own rights of self defence" and allow a defamer to benefit from their own tortious act.

Complaints About Public Officials

A person who claims to have been adversely affected by a public official's conduct will normally receive the protection of qualified privilege when bringing a complaint to the appropriate official body, assuming no express malice. Courts have shown considerable latitude in such cases.

In Mowlds v Fergusson (1940) 64 CLR 206, a senior police officer made a report containing defamatory material at his superiors' request. He showed the report to the former Commissioner of Police who had resigned. The High Court considered this publication was made on an occasion of qualified privilege, as the former commissioner might be called upon to confirm or refute the defendant's report and had a real moral concern in receiving information about his past administration.

Irrelevant Statements and Loss of Privilege

The protection of qualified privilege only extends to statements relevant to the occasion in question. As articulated in Adam v Ward [1917] AC 309:

"Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected."

The High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 framed the question as "whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence."

When a communication contains both relevant and irrelevant defamatory content, qualified privilege only attaches to the relevant part. Moreover, the inclusion of irrelevant defamatory content may provide evidence of malice and potentially destroy the privilege of the relevant portions as well.

It's important to note that the violence of language used does not affect whether there is an occasion of qualified privilege or whether the communication is relevant to that occasion, though it may be evidence of malice.

Media and Qualified Privilege

The courts have consistently rejected any general duty on mass media publishers to communicate matters of public interest to their audience. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, Latham CJ stated:

"There is, however, no principle of law which entitles a newspaper to publish a defamatory statement of fact about an individual merely because a statement is made in the course of dealing with a matter of public interest."

Courts distinguish between matters in which the public might be "interested" in the sense of curiosity, and matters in which specific readers might have an "interest" due to their connection with the subject matter. As Higgins J noted in Howe v Lees (1910) 11 CLR 361, interest is used:

"in the broadest popular sense, as when we say that a man is 'interested' in knowing a fact — not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news."

The High Court in Lange v Australian Broadcasting Corp (1997) 189 CLR 520 observed that "only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public." This decision extended qualified privilege to publications on government and political matters, but subject to the requirement that the publisher's conduct be reasonable—a more stringent test than the traditional qualified privilege defence.

Ancillary Privilege

An important extension of qualified privilege is the concept of "ancillary privilege," which protects technical publications to persons who don't have a legitimate interest in receiving the information but are involved in the process of communication. For example, a stenographer who types a letter of complaint that contains defamatory material would be protected by the same privilege that attaches to the sending of the letter to the appropriate body.

As Lord Diplock noted in Bryanston Finance Ltd v de Vries [1975] 1 QB 703, this is "not an original privilege but one ancillary to, and dependent on, the existence of a privilege for the publication of the defamatory contents of the letter to its addressee."

Conclusion

Common law qualified privilege remains a vital defence in Australian defamation law, balancing the need to protect reputation with the importance of free communication in specific contexts. The defence's foundation rests on the reciprocal duties or interests between the publisher and recipient, with various categories developed through case law.

While qualified privilege offers significant protection in certain circumstances, it is not unlimited. The information must be relevant to the occasion, and the defence can be defeated by proof of malice. For media organizations, the traditional defence has limited application, though constitutional considerations have extended the protection for publications on government and political matters.

Understanding the principles and limitations of qualified privilege is essential for both those making potentially defamatory statements and those who believe their reputation has been harmed. As with many areas of defamation law, each case turns on its specific facts and requires careful analysis of the relationship between the parties and the context of the communication.

When Administrators Can Step into a Trustee's Shoes: The Powers of the State Administrative Tribunal

Introduction: The JKJ Case

A recent Western Australian case has provided important clarification about the powers of the State Administrative Tribunal (SAT) to authorize administrators to exercise trustee powers on behalf of represented persons. In JKJ [2025] WASAT 6, the Public Trustee sought directions regarding a represented person who was the executor and trustee of his late aunt's estate. Before losing capacity, JKJ had received a grant of probate for his aunt's will and had partially administered the estate, with approximately $20,000 remaining for distribution. The solicitors who had acted for JKJ in his capacity as executor refused to provide information to the Public Trustee (as JKJ's administrator) without instructions from JKJ himself—instructions he could no longer provide due to his incapacity.

The Legal Question: Can Administrators Exercise Trustee Powers?

When someone loses capacity and has an administrator appointed under the Guardianship and Administration Act 1990 (WA) ("GA Act"), a key question arises: does the administrator's authority extend to exercising powers the represented person held as a trustee? This is particularly relevant when the represented person was a trustee of family trusts, self-managed superannuation funds, or deceased estates.

The issue stems from a fundamental legal principle: property held by a person as trustee does not form part of their personal estate. Section 69 of the GA Act gives administrators authority to perform functions "in respect of the estate of the represented person." This creates uncertainty about whether an administrator can act in relation to trust assets.

Schedule 2, Part B, Paragraph (h): The Key Provision

The solution lies in Schedule 2, Part B, paragraph (h) of the GA Act, which provides that where a power is vested in a represented person in the character of a trustee or guardian, the SAT may:

"...authorise the administrator to exercise the power or give the consent in such a manner as the Tribunal may direct."

This provision effectively bridges the gap between an administrator's general authority over a represented person's estate and their ability to exercise the represented person's trustee powers.

The Full Tribunal's Interpretation

In Public Trustee of Western Australia and VV [2012] WASAT 170, the Full Tribunal provided important guidance on interpreting paragraph (h). That case concerned a represented person who was trustee of his self-managed superannuation fund.

The Tribunal adopted a broad interpretation of the provision, stating that it "arises where there is a power vested in the represented person in the character of a trustee or a guardian at, or immediately before, the appointment of an administrator for the represented person, or where the power is vested in the represented person through his legal personal representative."

This interpretation prioritizes the beneficial purpose of the GA Act, which as noted in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268, is "designed to serve the best interests of those who lack capacity to manage their own affairs or to look after their own health and safety" and "to conserve the property and financial resources of a disabled person."

A More Restrictive View

Not all tribunal decisions have adopted such a broad interpretation. In SQ and IQ [2012] WASAT 165, a single member took a more restrictive view, interpreting paragraph (h) as envisaging "the performing of a single act or a one-off exercise of power rather than the adopting of an ongoing role encompassing many and varied decisions into the future."

However, in JKJ [2025] WASAT 6, the member explicitly disagreed with this narrow interpretation, finding that it was not supported by the language of the provisions.

When Should the Power Be Exercised?

The Full Tribunal in Public Trustee and VV provided guidance on when the SAT should exercise its discretion under paragraph (h):

"The question as to whether the Tribunal ought to give authority under paragraph (h) will always turn on the particular circumstances of the case. The provisions of the relevant trust deed, the nature of the trust, the identity of the beneficiaries, the nature of the trust property and the character and extent of the powers in respect of which authority is sought, will all be significant considerations in the exercise of the discretion as to whether authority should be granted."

In JKJ, the Tribunal found it was in the best interests of the represented person to authorize the Public Trustee to exercise his powers as trustee—both to obtain information about the deceased estate and to complete the administration by distributing the remaining funds to beneficiaries.

Practical Implications

This case highlights several important considerations for administrators:

1. Administrators do not automatically have authority to exercise a represented person's trustee powers—specific authorization from the SAT is required

2. The SAT has broad jurisdiction to authorize administrators to exercise trustee powers

3. The need for such authorization applies to various trustee roles, including trustees of deceased estates, family trusts, and self-managed superannuation funds

4. In applying for authorization, administrators should address how exercising the trustee powers advances the represented person's best interests

5. The scope of authorization can be tailored to specific circumstances, from obtaining information to completing trust distributions

Conclusion

The JKJ decision confirms the SAT's jurisdiction to authorize administrators to exercise a represented person's trustee powers. This jurisdiction is particularly valuable in preventing trust administration from being paralyzed when a trustee loses capacity. When used appropriately, it allows administrators to protect the represented person's interests without the need for costly applications to other courts for the appointment of substitute trustees.

For represented persons who are trustees, this mechanism provides a practical solution to ensure their legal obligations as trustees can continue to be fulfilled despite their incapacity, protecting both their interests and those of trust beneficiaries.

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.

Confidentiality in Guardianship Proceedings: When Can Information Be Published?

Introduction

In guardianship and administration proceedings, confidentiality is the norm rather than the exception. However, a recent Western Australian Supreme Court decision has clarified when exceptions to this confidentiality may be permitted. In Australian Broadcasting Corporation v Public Trustee [2022] WASC 85, the ABC sought court approval to identify a deceased person (referred to as "AC") and their adult children in a Four Corners report about public trustee systems. AC had been subject to guardianship and administration orders made in 2015, with AC's daughter appointed as guardian and the Public Trustee as administrator of financial affairs. AC died in September 2016, and AC's adult children consented to being identified in the report.

The Confidentiality Framework

The Guardianship and Administration Act 1990 (WA) ("the Act") imposes strict confidentiality requirements on proceedings under the Act. These requirements are found in Schedule 1, clause 12, which makes it an offense to publish an account of proceedings that identifies parties, persons related to parties, or witnesses.

As Justice Hill noted in the ABC case, these confidentiality provisions do not prevent reporting of proceedings generally, but simply prevent identification of the persons involved. This contrasts with the principle of "open justice" that normally applies in court proceedings.

The rationale for confidentiality was well articulated by Justice Pritchard in CD [2020] WASAT 41, explaining that the provisions reinforce two important policies:

1. Protection of the privacy of persons involved in proceedings, particularly the represented person

2. The public interest in the integrity of the Tribunal's processes, which relies on obtaining sensitive information from various sources

Exceptions to Confidentiality

Schedule 1, clause 12(8) of the Act provides several exceptions to these strict confidentiality obligations. Of particular interest is clause 12(8)(d), which permits "the publishing of a notice or report in pursuance of the direction of the Tribunal or of a court."

The ABC case is significant because it clarifies the scope of the court's discretion under this provision. Justice Hill concluded that clause 12(8)(d) confers a broad discretion on the court to direct publication of a notice or report by taking into account all relevant facts, matters, and circumstances.

Importantly, Justice Hill rejected the view that "exceptional circumstances" are required before an order allowing identification can be made. Instead, the court should consider all logically relevant factors without imposing constraints not found in the express terms of the Act.

Factors the Court Considers

Drawing on decisions in family law cases interpreting similar provisions in the Family Law Act 1975 (Cth) and Family Court Act 1997 (WA), Justice Hill identified several factors relevant to the exercise of the discretion:

1. The public interest in the publication

2. The public interest in personal privacy

3. Freedom of communication

4. The position (if known) of the person who is the subject of the application

5. Whether there is any opposition to the application

6. Whether the publication is in the best interests of the person who was subject to the orders

7. Whether the person consents to the application

8. Whether the welfare of the person will improve or suffer if publication is allowed

9. How publication will impact on relevant relationships

In AH v SS (2005) 194 FLR 111, Chief Justice Bryant expressed the view that, in considering whether to make a direction for publication, the applicant must identify reasons for publication, and the court should consider both public interest and the best interests of the party subject to the application.

The Court's Approach in Practice

In the ABC case, Justice Hill granted the application, subject to the ABC giving an undertaking not to disclose medical or other personal information beyond what was necessary for a fair and accurate report.

Several factors influenced this decision:

• The orders were made more than five years earlier and were no longer operative due to AC's death

• AC's children actively supported the application and consented to being identified

• No one appeared to object to the application

• There was public interest in understanding how the Public Trustee interacts with community members, particularly those from multicultural backgrounds

• There was public interest in understanding the operation of the Act and the role of the Public Trustee

Implications for Practice

This decision provides valuable guidance for practitioners in this area:

1. Applications for publication should address the factors identified by Justice Hill, particularly the public interest in publication and the position of the affected person

2. Consent of relevant parties, while not determinative, is a significant factor

3. The death of the represented person may simplify matters, but doesn't automatically justify publication

4. The court will balance privacy interests against the value of transparency in particular circumstances

5. Restrictions may be imposed to protect particularly sensitive information even when publication is generally permitted

The decision in Australian Broadcasting Corporation v Public Trustee [2022] WASC 85 strikes a balance between the competing principles of privacy and open justice. It recognizes that while confidentiality remains the default position in guardianship proceedings, there are circumstances where transparency serves both individual and public interests.

For practitioners advising clients on these matters, the case underscores the importance of considering all relevant factors when seeking (or opposing) publication of information from guardianship proceedings, rather than focusing solely on whether "exceptional circumstances" exist.

Guardianship Jurisdiction: Administrative Power Rather Than Judicial Power

Introduction: The GS v MS Case

In 2019, the Supreme Court of Western Australia delivered an important decision on the jurisdiction of the State Administrative Tribunal (SAT) to make guardianship and administration orders. In GS v MS [2019] WASC 255, a son (MS) who resided in New South Wales made an application to the SAT for guardianship and administration orders in relation to his mother (GS) who lived in Western Australia. The case raised an important constitutional question: could the SAT exercise jurisdiction in a matter where the applicant and respondent were residents of different states? This question arose in the context of the High Court's decision in Burns v Corbett [2018] HCA 15 which held that state tribunals cannot exercise jurisdiction in certain "matters" between residents of different states.

Is Guardianship Jurisdiction Judicial Power?

The central question in determining whether the SAT had jurisdiction was whether applications for guardianship and administration orders involve the exercise of judicial power. This is because the limitation identified in Burns v Corbett only applies to matters involving judicial power, not administrative power.

Chief Justice Quinlan held that guardianship and administration orders do not involve the exercise of judicial power, but rather are administrative in nature. This finding is significant because it means that the constitutional limitation in Burns v Corbett does not apply to guardianship applications.

Characteristics of Judicial Power vs. Administrative Power

The judgment provides a helpful analysis of what distinguishes judicial power from administrative power:

1. Judicial power typically involves settling a question about the existence of a right or obligation, creating a "new charter" by which that question will be decided in the future (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8).

2. Administrative power generally involves determining what rights and obligations should be created, rather than what they already are (Precision Data Holdings Ltd v Wills [1991] HCA 58).

The court found that guardianship and administration applications fall clearly on the "administrative" side of this distinction because:

• They are not concerned with settling questions about existing rights and obligations

• They are concerned with creating new rights and obligations for the future

• They are protective in nature rather than adversarial

• They are not "inter partes" (between parties) in the ordinary sense

The Protective Nature of Guardianship Jurisdiction

A key aspect of guardianship jurisdiction is its protective nature. As noted in Scott v Scott [1913] AC 417, guardianship jurisdiction has historically been characterized as "parental and administrative." The Supreme Court emphasized that applications for guardianship orders are not primarily about resolving disputes between parties but rather about protecting the proposed represented person.

In the words of Chief Justice Quinlan:

"The Tribunal, in hearing a guardianship order or an administration order, does not decide a dispute between the parties; it applies its statutory obligation (in s 4(2) of the Guardianship Act) to act in 'the best interests of [the] person in respect of whom an application is made'."

Historical Origins of Guardianship Jurisdiction

The court's analysis also delved into the historical origins of guardianship jurisdiction, which supports its administrative character. The jurisdiction of English courts in relation to both infants and "lunatics" originated in the delegation by the Crown of its Royal prerogatives – the parens patriae jurisdiction.

As quoted from Secretary, Department of Health & Community Services v B [1992] HCA 15 (commonly known as Marion's Case):

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

This historical foundation further supports the conclusion that guardianship jurisdiction is fundamentally administrative rather than judicial in character.

Implications for Interstate Guardianship Applications

The practical implication of this finding is significant: the State Administrative Tribunal can hear guardianship applications even when the applicant and the proposed represented person are residents of different states.

This is because applications for guardianship orders:

1. Do not involve the exercise of judicial power

2. Are not "matters" within the meaning of s 75(iv) of the Constitution

3. Are not "between" residents of different states in the constitutional sense

Conclusion

The decision in GS v MS [2019] WASC 255 provides important clarity on the nature of guardianship jurisdiction. The court's finding that guardianship and administration applications involve the exercise of administrative rather than judicial power ensures that the SAT can continue to perform its vital protective function, regardless of the residence of the applicant.

This characterization of guardianship jurisdiction as administrative aligns with its historically protective character and distinguishes it from adversarial proceedings that determine existing rights and obligations. It reinforces the fundamental purpose of guardianship law: the protection of vulnerable persons rather than the adjudication of disputes.

For practitioners in this area, the case serves as a useful reminder of the unique nature of guardianship jurisdiction, which stands apart from traditional adversarial litigation and maintains its historically protective character.

Mental Disability in Guardianship Law: A Critical Distinction Between Administration and Guardianship

Introduction: A Case of Communication Barriers

The recent Western Australian State Administrative Tribunal decision in K [2025] WASAT 15 highlights a crucial but often overlooked distinction in guardianship law: the different thresholds for appointing an administrator versus a guardian. The case involved K, a 34-year-old Aboriginal man who was deaf and mute from birth. Despite being assessed at age 6 as "a very capable and enthusiastic learner, held back only by his linguistic needs," K reached adulthood without developing conventional communication skills. He communicated using a combination of Aboriginal hand signs, family-developed signs, and some Auslan, leaving him functionally illiterate and with significant communication barriers. Despite finding that K was unable to manage his financial affairs and was incapable of looking after his own health and safety, the Tribunal came to different conclusions regarding the need for administration versus guardianship orders.

The Critical Distinction: Mental Disability Requirements

The most significant insight from K [2025] WASAT 15 is the distinction between the legislative requirements for administration versus guardianship orders:

Administration Orders

Under s 64(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act), the Tribunal can only make an administration order if satisfied that the person is "unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate."

This means two elements must be established:

1. The person has a mental disability

2. The mental disability causes the person's inability to make reasonable judgments about financial matters

Guardianship Orders

By contrast, under s 43(1)(b) of the GA Act, the Tribunal may appoint a guardian if satisfied that the person:

1. Is incapable of looking after their own health and safety; or

2. Is unable to make reasonable judgments in respect of matters relating to their person; or

3. Is in need of oversight, care or control in the interests of their own health and safety or for the protection of others

Crucially, there is no explicit requirement that these conditions be caused by a mental disability. The focus is on the functional incapacity itself, regardless of its cause.

The Definition of "Mental Disability"

The GA Act defines "mental disability" in s 3(1) as including "an intellectual disability, a psychiatric condition, an acquired brain injury and dementia." As explained in FY [2019] WASAT 118, this is an inclusive definition rather than an exhaustive one.

In K [2025] WASAT 15, the Tribunal elaborated on the six key features of "mental disability" as established in FY [2019] WASAT 118:

1. The ordinary meaning of "mental disability" contemplates that a person's mind is affected by an impairment, incapacity, or inability to function in a manner considered normal.

2. The definition encompasses recognized medical conditions that may result in impairment of mental functioning.

3. An "intellectual disability" specifically refers to impairment in a person's power to understand or reason.

4. There is no requirement that the mental disability be permanent - some may be transient.

5. No precise degree of mental disability is required - there is no medical or scientific benchmark that must be met.

6. A finding of mental disability does not necessarily require the existence of a recognized medical condition or disorder - the underlying cause may not be entirely clear or diagnosed, but the existence of the mental disability may be beyond doubt.

Application in K's Case: Different Outcomes for Administration vs. Guardianship

In K's case, the Tribunal reached different conclusions regarding administration and guardianship:

Administration Application Dismissed

The Tribunal found that K had a substance use disorder, which qualified as a mental disability. The Tribunal also found that K was unable to manage his own financial affairs. However, the application for administration was dismissed because the Tribunal was not satisfied that K's inability to manage his finances was caused by his substance use disorder.

As Member Haigh stated: "On the evidence before me I am not satisfied that K is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate. I am not satisfied that the criterion in s 64(1)(a) is met."

Instead, K's financial difficulties appeared to stem primarily from his communication barriers, financial exploitation by others, and his anger and frustration at these circumstances.

Guardianship Application Granted

By contrast, the Tribunal granted the guardianship application, appointing the Public Advocate as limited guardian with authority over treatment decisions, services, restrictive practices/restraint, and accommodation.

The Tribunal found that K was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, and in need of oversight, care or control in the interests of his own health and safety and for the protection of others.

Importantly, these findings did not require establishing that K's incapacity was caused by a mental disability. The Tribunal was concerned with K's functional capacity to make personal welfare decisions, regardless of the cause of that incapacity.

The Nexus Requirement for Administration Orders

The case clearly illustrates the importance of the causal nexus requirement for administration orders. As explained in FY [2019] WASAT 118 at [73], "an inability to make reasonable judgments in relation to one's estate does not, of itself, constitute a sufficient basis for the making of an administration order."

The use of the phrase "by reason of" in s 64(1)(a) implies a relationship of cause and effect between a mental disability and the person's inability to make reasonable judgments. The Tribunal noted that this phrase equates to "because of" and "due to," requiring the application of ordinary causation principles.

This strict causation requirement reflects the more intrusive nature of administration orders, which remove a person's legal capacity to make financial decisions and transfer that authority to another person.

Distinguishing Between Communication Barriers and Mental Disability

K [2025] WASAT 15 highlights the importance of distinguishing between communication barriers and mental disability. The Tribunal noted that K's communication difficulties "give rise to practical difficulties in making decisions in respect of financial matters, however they do not of themselves render a person incapable of making reasonable judgments about financial matters."

This distinction is crucial for practitioners working with clients who have sensory impairments or come from culturally and linguistically diverse backgrounds. Communication barriers may create practical obstacles that make decision-making more challenging, but these obstacles may be overcome with appropriate support strategies. They do not necessarily constitute a mental disability that causes an inability to make reasonable judgments.

Practical Implications for Legal Practitioners

This case offers several important lessons for practitioners in guardianship and administration law:

1. Different evidentiary requirements: For administration applications, practitioners must gather evidence not just of a mental disability and financial incapacity, but of a causal relationship between them. For guardianship applications, the focus is on establishing functional incapacity in personal welfare matters, regardless of cause.

2. Consider alternatives to administration: When a client is struggling with financial management due to communication barriers rather than a mental disability causing impaired judgment, alternatives to administration should be explored.

3. Guardianship may be appropriate even when administration is not: As demonstrated in K's case, a person may need a guardian for personal welfare decisions even if they do not require an administrator for financial matters.

4. Careful assessment of diagnostic evidence: Courts require clear and cogent evidence to establish that a person has a mental disability. In GC and PC [2014] WASAT 10 at [36] (quoted in MH [2022] WASAT 74 at [130]-[131]), the Tribunal emphasized the need for such evidence to displace the presumption of capacity.

Conclusion

K [2025] WASAT 15 provides a valuable reminder of the critical distinction between the requirements for administration versus guardianship orders. While administration requires that a mental disability causes an inability to make reasonable financial judgments, guardianship focuses on functional incapacity in personal welfare matters without an explicit causation requirement.

This distinction reflects the different nature and purposes of these orders and ensures that administration orders, which involve significant restrictions on financial autonomy, are only made when truly necessary and when the statutory causation requirement is met.

For lawyers, medical professionals, and families navigating the guardianship system, understanding this distinction is essential to proper application of the law and to ensuring that individuals receive appropriate support while maintaining maximum autonomy.