A and J - [2006] WASAT 287 (S)

JURISDICTION

STATE ADMINISTRATIVE TRIBUNAL

STREAM

: HUMAN RIGHTS

ACT

:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION

:	A and J [2006] WASAT 287 (S)

MEMBER

:	MS J TOOHEY (SENIOR MEMBER) DR G HAMILTON (SENIOR SESSIONAL MEMBER) MR S JONGENELIS (SENIOR SESSIONAL MEMBER)

HEARD

: 13 MARCH 2006

10 APRIL 2006
29 AUGUST 2006

DELIVERED	:	21 SEPTEMBER 2006
SUPPLEMENTARY
DECISION	:	24 JULY 2007
FILE NO/S	:	GAA 442 of 2005 GAA 626 of 2005

BETWEEN

: A

Applicant
AND
J
Proposed Represented Person

[2006] WASAT 287 (S)

Catchwords:

Costs – Application to appoint guardian and administrator dismissed – Application by proposed represented person for her costs to be paid by the applicant pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) – Alternatively for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) – No good reason to depart from the principle that parties before the Tribunal bear their own costs – Section 16(4) does not permit an order for costs of the proposed represented person – No power in Tribunal to order trustees of a trust established for the benefit of the proposed represented person to meet her costs – Application dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(1), s 16(4)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and
Appeal Act 2004 (WA), s 427

State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2)

Result:

Application for costs dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr P Ward
Proposed Represented Person	:	Ms M Jurek

Solicitors:

Applicant	:	Peter Ward
Proposed Represented Person	:	Butcher Paull & Calder

Case(s) referred to in decision(s):

A and J [2006] WASAT 287

Chew and Director General of the Department of Education and Training

[2006] WASAT 248

EA and KD, TA, LA, BA & VT [2007] WASAT 175

[2006] WASAT 287 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 J's sister, A, asked the Tribunal to appoint an administrator and a
guardian for J who had an intellectual disability. The Tribunal found that J's disability impaired her decision-making capacity in ways that made her vulnerable to exploitation and abuse but, in all the circumstances, it decided against making either appointment and dismissed both applications. Its reasons were published as A and J [2006] WASAT 287.
2 A and J were both legally represented at the hearing. Subsequently,
J sought an order, under either s 87 of the State Administrative Tribunal Act 2005 (WA) or s 16(4) of the Guardianship and Administration Act 1990 (WA), that A pay her costs.

The Tribunal decided there was no good reason in this case to depart from the principle in s 87(1) of the State Administrative Tribunal Act 2005 (WA) that parties to proceedings bear their own costs.

4 The Tribunal decided that s 16(4) of the Guardianship and Administration Act 1990 (WA) allows a party to have their costs paid by, or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A and J

Details

AGLC: A and J [2006] WASAT 287 (S)
Case: [2006] WASAT 287 (S)
Decision Date: 24 JULY 2007

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of A and J was brought before the court concerning an application to appoint a guardian and administrator. The applicant, represented by legal counsel, sought costs from the respondent under specific sections of the State Administrative Tribunal Act 2004 (WA) and the Guardianship and Administration Act 1990 (WA). The proposed represented person, who was a party to the proceedings, applied for her costs to be paid by the applicant, alternatively seeking costs from the respondent under the same statutory provisions. The primary legal issue before the court was whether the principle that parties bear their own costs could be departed from and, if so, under what circumstances.

The court examined the statutory provisions and the principles of costs in relation to administrative law proceedings. It concluded that there was no good reason to deviate from the general principle that parties to proceedings before the Tribunal bear their own costs. The court found that section 87 of the State Administrative Tribunal Act 2004 (WA) did not permit an order for the applicant to pay the costs of the proposed represented person. Additionally, section 16(4) of the Guardianship and Administration Act 1990 (WA) did not provide the authority to order the trustees of a trust, established for the benefit of the proposed represented person, to meet her costs. Consequently, the application for costs was dismissed.

The court held that the principles of costs in administrative law proceedings should remain consistent with the general rule that parties bear their own costs. The specific statutory provisions did not support an order for the applicant to pay the costs of the proposed represented person or for the trustees of the trust to meet those costs. Therefore, the application for costs was dismissed, and the proposed represented person was not entitled to have her costs paid by either party.

Orders