A and J
[2006] WASAT 287 (S)
•24 JULY 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : HUMAN RIGHTS | ||
| ACT |
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| CITATION |
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| MEMBER |
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| 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 out of the assets of, the person whom the application concerns; it does not apply to costs incurred by the person the subject of the proceedings. Even if such an order were possible, it would not be made in this case because the claim was against A in her capacity as trustee of a trust established for J's benefit; any claim against the trustees would have to be made elsewhere.
The Tribunal dismissed the application for costs.
Background
6 On 21 September 2006, the Tribunal dismissed applications by A for
the appointment of a guardian and an administrator for her sister, J. The
Tribunal published its reasons as A and J [2006] WASAT 287.7 The applications were heard over three days with lengthy
adjournments in between so that J's capacity to make decisions and care for herself could be assessed. A and J were both legally represented throughout the proceedings.
J now seeks an order that her legal costs in the sum of $23 827.82, including disbursements, be paid:
[2006] WASAT 287 (S)
• by A personally, pursuant to an order under s 87 of the State Administrative Tribunal Act 2004 (SAT Act): or • by the trustees of a trust established for the benefit of J, pursuant to s 16(4) of the Guardianship and Administration Act 1990 (GA Act).
The trust referred to is a discretionary testamentary trust established by J's father. Her three sisters and her brother are the trustees.
Relevant legislative provisions
Section 87 of the SAT Act relevantly provides:
"(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal. …
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought."
Section 16(4) of the GA Act provides:
"(4) The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the Board thinks fit be paid to that party by, or out of the assets of, that person."
12 Subsection (1) of s 16 was repealed when the Tribunal commenced
in January 2005: State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) s 427. It had provided, in terms similar to s 87 of the SAT Act, that parties to proceedings under the GA Act bear their own costs.
[2006] WASAT 287 (S)
J's submissions
J says the Tribunal should make the orders sought because:
• it was reasonable for her to defend the application; • in order to do so, it was necessary for her to incur the costs; • as A was represented, and as J had limited ability to represent herself, it was reasonable she engage legal representation; • she is a beneficiary of the trust and entitled to provision out of it; • the trust has considerable assets; • the trustees are her siblings and, through A, the applicants in the proceedings; and • she gets very limited support from the trust.
Clearly some of these submissions go to only one or the other of the provisions under which the order is sought.
A's response
A says in response that:
• she had no option but to bring the application, given J's vulnerability which was recognised by the Tribunal in its decision; • the application was made on reasonable grounds and in J's best interests; • to make the order sought would deter others from making well-founded applications to protect vulnerable people; • in exercising its jurisdiction under s 87 of the SAT Act, the Tribunal must have good reason to depart from the principle that parties pay their own costs; • nothing in her conduct or motivation provides ground for departing from that principle; and
[2006] WASAT 287 (S)
• s 16(4) does not empower the Tribunal to order payment of the costs of a represented person, or person whom an application concerns, only those of another party to proceedings.
Consideration of submissions: GA Act s 16(4)
16 Turning first to the application for an order pursuant to s 16(4) of the
GA Act. That section is clear in its terms: it enables the Tribunal to order that costs of a party to proceedings be paid to that party by, or out of the assets of, the person whom the application concerns. It is irrelevant whether the application succeeds or fails. The intention of the provision is that a person who acts in the best interests of the person whom the application concerns in making an application, essentially for that person's protection, should not necessarily bear the costs associated with doing so.
17 Nothing in s 16(4) allows the Tribunal to make an order that the
costs of the person whom an application concerns be met out of their own assets. It stands to reason that such an order would make no sense, although such an application was made recently in a matter in which a represented person asked the Tribunal to order his administrator, the Public Trustee, to pay his legal costs: EA and KD, TA, LA, BA & VT [2007] WASAT 175. The Tribunal dismissed the application, noting that it was for the Public Trustee to determine, as administrator, whether any costs should be paid.
18 The application for an order under s 16(4) appears to be based on the
notion that the funds in the trust, being held for J's benefit, are her assets. However, even if s 16(4) allowed for an order for the costs of the person whom the application concerns to be paid, such order could not be made against the trustees of a trust. The trustees are the legal owners of the trust property and hold it for J's benefit subject to the terms of the trust. This tribunal cannot make orders as to how they perform their functions and exercise their discretion.
Consideration of submissions: SAT Act s 87(2)
19 If a person whom an application concerns seeks to have their costs
paid by another party, their only recourse is to s 87(2) of the SAT Act. For an order to be made under that provision there must be a good reason for departing from the rule in s 87(1) that parties to proceedings before the Tribunal bear their own costs.
[2006] WASAT 287 (S)
20 The Tribunal has considered s 87(2) in a range of decisions. In
Chew and Director General of the Department of Education and
Training [2006] WASAT 248 at [85] it said:"We take the view that in proceedings under the Act, the Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings; has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes."
Other decisions are in a similar vein: there must be a good reason to depart from the usual position.
22 Nothing about the applications brought by A in respect of her sister
could be considered unreasonable or capricious or in any way improper. The Tribunal has no reason to think that A acted other than out of concern for J. The facts, as set out in the Tribunal's written reasons, show clearly that A had every reason to be concerned for her sister.
23 The Tribunal found J was a person for whom a guardianship order
could be made but declined to make the order sought for several reasons including J's strenuous opposition to the application. The Tribunal dismissed the application for the appointment of an administrator because the evidence before it did not support a finding that J lacked the requisite capacity. Again, however, A's concerns for J were genuine and it could not be said that her application was misconceived, or lacking in substance, or that it was in any way unreasonable. A had good reason to be concerned at the potential for financial, emotional and sexual abuse of her sister.
We see no reason in this case to depart from the rule in s 87(1).
| Conclusion | |
| 25 | For the reasons set out above, we dismiss the application for costs. |
26 If J considers that the trustees are not meeting their obligations under
the trust, she may have remedies available to her, but not in this tribunal. It was evident at the hearing that there is some tension between J and the trustees in that they do not always meet her requests; equally, she has in
[2006] WASAT 287 (S)
the past declined to ask for assistance so as to minimise her dependence
on them.27 Assuming the trust deed allows and there are sufficient funds, we
would hope that the trustees might see their way to meeting J's costs of the proceedings. It does not seem unreasonable to us, in the face of applications by her sister who was legally represented, that J herself engaged legal representation. This was especially so given her intellectual disability which would have made representing herself particularly difficult. Further, we understand that J has made limited calls upon the trust in the recent past.
| Orders |
The application for costs is dismissed.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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