AA - [2025] WASAT 2 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   AA [2025] WASAT 2 (S)
MEMBER:   MS V HAIGH, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   11 JUNE 2025
FILE NO/S:   GAA 3770 of 2023
GAA 4202 of 2024
GAA 4816 of 2023
AA
Represented Person
S1
Applicant

Catchwords:

Guardianship and administration - Application for legal costs from the represented person's estate - Section 16(4) of the Guardianship and Administration Act 1990 (WA) - Application for legal costs from interested parties - Section 87 of the State Administrative Tribunal Act 2004 (WA) - Significant family conflict - Whether costs orders should be made

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(4), s 16(5)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2)

Result:

Costs awarded in part

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	N/A

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

Chew and Director General of the Department of Education and Training [2006] WASAT 248
GB [2020] WASAT 61 (S)
J & P Metals Pty Ltd and Shire of Dardanup [2006] WA SAT 282 (S); (2006) 45 SR (WA) 242
LC and JS [2007] WASAT 127
PHQ and LPQ [2015] WASAT 5
PJC and RJC [2008] WASAT 224
Re WA and IA Ex Parte AA and JA [2011] WASAT 33
RK [2020] WASAT 53 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Y and CO [2022] WASAT 166

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 3 January 2025 I determined three applications under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of AA, namely an application for the revocation of an enduring power of attorney (EPA), an application for revocation of an enduring power of guardianship (EPG) and an application for the appointment of a guardian and administrator.
I made orders appointing the Public Trustee as plenary administrator and the Public Advocate as limited guardian (Orders). I revoked the EPA and the EPG. I published my reasons for making those Orders (Reasons). These reasons should be read in conjunction with those Reasons. I will use the same abbreviations for the parties as I used in the Reasons.
The three applications concerned AA and her three sons S1, S2 and S3. S1 sought revocation of the EPG and EPA, and the appointment of the Public Advocate and Public Trustee as AA's guardian and administrator respectively. S1 and his wife S1W, are seeking to have their legal costs paid by AA out of her estate and/or by S2 and S3 who were the enduring guardians and enduring attorneys. All parties were represented in the three applications, although AA's legal representative ceased to act for her a week prior to the final hearing as he became a witness in the proceedings. S1 and his wife S1W were represented by the same legal representative. S2 and S3 were represented by the same legal representative.

The costs application

On 21 January 2025 S1 and S1W made an application for costs.
I made programming orders pursuant to which the following documents were provided by the parties:
1.S1 and S1W's submissions dated 21 February 2025.
2.S2 and S3's submissions dated 14 March 2025.
3.S1 and S1W's submissions in reply dated 27 March 2025.
The Public Trustee chose not to provide any submissions.
I ordered that the costs application be determined on the documents.
In their costs application S1 and S1W seek an order pursuant to s 16(4) of the GA Act for their costs to be paid by, or out of the assets of AA and/or by S2 and S3 pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).S1 and SW1 are seeking $54,043.70 in costs.
In summary S1 and S1W contend that an award of costs is warranted in this case for the following reasons.
Firstly, S1's actions demonstrably protected AA's best interests by uncovering unauthorised property transfers made by S2 and S3 when AA lacked capacity, leading to the appointment of an independent guardian/administrator. They contend there was a clear benefit to AA established through orders made.
Secondly, legal representation was necessary as the complex circumstances required skilled legal representation. In particular to engage with extensive medical evidence systematically, analyse property transactions, navigate the impact of multiple concurrent proceedings (Family Violence Restraining Order (FVRO)/defamation) and maintain focus on AA's interest despite family conflict. They refer to the conduct of S2 and S3 and a letter sent by their representative seeking that S1 withdraw his application to give their mother peace of mind.
Thirdly, they contend that legal representation was necessary to properly present evidence in relation to serious wrongdoing by S2 and S3 including in particular in relation to the circumstances of their facilitation of the 2023 property transfers, the use of AA's credit card by S2/S3, the installation of CCTV at AA's residence, S3's use of the EPG to make an application for a FVRO, the restrictions on S1 and his family interacting with AA, and S2/S3's failure to get AA assessed by a geriatrician on a timely basis.[1]
[1] In so far as S1/S1W suggest that I made findings of a 'breach of fiduciary duties' by S2/S3 this mischaracterises the finding I made in relation to S2/S3's facilitation of the 2023 property transfers.
Fourthly, exceptional circumstances existed in that the case went beyond typical family conflict. It involved systematic misconduct requiring investigation and presentation of complex documentary/medical evidence to establish wrongdoing by S2 and S3. The role of legal representation included seeking orders from the Tribunal for what became critical medical evidence, applying for a summons (for AA's legal representative to give evidence), and presenting evidence and engaging in the questioning of witnesses.
Fifthly, the legal costs are proportionate given the complexity of the issues, the volume of evidence requiring analysis, multiple hearings, and successful outcomes protecting AA's substantial property interests.
Sixthly, the application successfully protected AA's estate. The orders sought were obtained, confirming the proceedings were necessary and justified. There were findings of incapacity, revocation of the EPA/EPG, and an independent guardian and administrator were appointed.
Seventhly, there was no alternative protection. Without S1's legally represented intervention AA's property would have remained under the control of attorneys who the Tribunal found had 'lost sight of AA's best financial interests'.
And lastly, in the public interest. The case exposed 'serious breaches of fiduciary duties' by S2 and S3 that warranted formal proceedings to protect a vulnerable person, serving broader protective purposes of the GA Act.[2]
[2] I repeat my earlier comment about this mischaracterisation of my findings in relation to S2/S3's facilitation of the 2023 property transfers.
I note here that the above are in order of significance according to S1 and S1W, and that some of the grounds are overlapping.

S1 and S1W's submissions in support of a costs order under s 87

In respect of the exercise of my discretion under s 87 to order costs be payable by S2 and S3, S1 and S1W contend as follows.
Firstly, S2 and S3's insistence that AA required an Italian interpreter in the Sicilian dialect was unnecessary given AA's proficiency in Italian. They contend that this introduced procedural complexity and prolonged the proceedings.
Secondly, S2 and S3's engagement of multiple lawyers against S1's single lawyer, and the availability issues with their second lawyer, Lawyer 2 caused delays.
Thirdly, S2 and S3's conduct during the proceedings. In particular S2's evidence about when he first observed his mother's declining cognition which were found to be implausible, S3's pursuit of a FVRO using the EPG, and the sending of the letter requesting that S1 withdraw his application, which they say required additional resources and time to deal with.
Fourthly, S1 and S1W say that the following adverse findings are relevant to whether S2/S3's conduct unnecessarily extended proceedings and caused additional costs: S2/S3 were aware of their mother's cognitive decline yet proceeded with the property transfers, S2/S3 did not act with diligence to protect AA's estate, S2/S3 had lost sight of what is in AA's best financial interest while she is living, S3 installed surveillance of AA and AA had no recollection of consenting to this, S2/S3's restriction of access to AA, S3's pursuit of a FVRO using the EPG which led to a finding of S2/S3's unsuitability for appointment as guardians.

S2 and S3's submissions in respect of the application under s 16 (4)

S2 and S3 submit that my findings and the inferences that may be drawn from them raise serious questions as to whether S1 was acting in AA's best interests in bringing the application.
They reference AA's 1991 and 2013 wills excluding S1 as a beneficiary. In respect of the latter which was made following the passing of her husband, AA gives all of her estate to S2 and S3 as tenants in common in equal shares.
S2 and S3 contend that the 2023 transfers of AA's interest in eight of her properties, is in essence what would have happened under her 2013 will (excepting the payment of registration fees and stamp duty which AA paid, and which would not otherwise have been payable under her will).
S2 and S3 contend that other than the 2023 property transfers there were no other findings that reflected in an adverse way on S2 and S3's care for AA. They note that given the conflicting evidence the Tribunal was not able to make findings in respect of a range of allegations made by S1 concerning AA's wellbeing.
S2 and S3 contend that a compelling inference from my findings is that S1 had a financial motivation for rekindling his relationship with his mother. Those findings being:
(i)that S1 was in financial difficulty in mid-late 2022, being the period during which his relationship with his mother was rekindled;
(ii)S1 gave false evidence as to these difficulties in his evidence to the Tribunal.[3]
(iii)S1 raised his financial difficulties in conversations with AA during the rekindling of their relationship;
(iv)S1 raised with AA at a family gathering the matter of earlier (2003) property transfers of their parents' properties to S2 and S3, which were made before their father passed away.
[3] I note here that I did not characterise his evidence in this way, rather I made a finding that he was an unreliable witness because of his evidence about his finances.
S2 and S3 contend that it can be inferred from these findings that S1 wanted the Public Trustee appointed as administrator so that he could take steps to challenge the 2023 property transfers. It is contended that the obvious motivation being that those properties may be available in any challenge to their mother's estate.
In respect of (ii) above S2 and S3 note that this led the Tribunal to doubt the reliability of S1's evidence overall. Further S2 and S3 note that some of S1's allegations were not made out, or had no proper basis.
S2 and S3 submit that the following factors militate against an award of costs being made:
(i)the payment of costs from AA's assets would likely require assets to be sold in order to pay those costs. They submit that in light of the evidence in the Public Trustee's report, that AA has approximately $67,000 in her bank accounts, an order to pay S1 and S1W's costs may seriously deplete AA's cash deposits and require the Public Trustee to sell AA's assets to fund the payment.
(ii)S1's lack of candour in giving evidence to the Tribunal (that he was found to have given false evidence to the Tribunal, that this false evidence led the Tribunal to doubt the reliability of his evidence overall, his allegations that S2 had physically abused AA were not made out, and his allegation that S3 had medicated AA improperly for compliance was without proper basis); and
(iii)S1 and S1W's preparedness to make serious allegations based on nothing more than suspicions with no evidence.
In summary S2 and S3 submit that it would not be in AA's best interests for S1 to be reimbursed for his costs in circumstances where there are serious questions about his motivation in bringing the application, his conduct in the application and the consequences of ordering that the costs be reimbursed from AA's estate.
Further they submit that there is an unresolved question about what would happen to monies paid to S1 in respect of costs in this proceeding in light of his bankruptcy/personal insolvency agreement.

S2/S3's submissions in respect of the application under s 87

Firstly, S2 and S3 submit that there may be differences of opinion between S1 on the one hand and S2/S3 as to AA's ability to understand Italian vs the Sicilian dialect of Italian. They submit that AA's lawyer, Lawyer 1, was of the view that her best understanding was facilitated by being spoken to in the Sicilian dialect.
It is submitted that it ought not be implied that S2 and S3's efforts to ensure AA had an Italian interpreter (Sicilian dialect) was in some way improper. It was motivated by a desire to ensure that AA was able to understand the proceedings.
It is submitted that this is not a circumstance that weighs in favour of a cost order against S2/S3.
Secondly, S2/S3 submit that the number of lawyers acting for them is not relevant to whether a costs order ought be made, as it did not add to S1/S1W's costs unnecessarily.
Thirdly, they submit that there is no suggestion that S2/S3's opposition to the application was hopeless or should not have been maintained. Nor could there be, many of the issues in the proceeding could not be determined by the Tribunal because of the conflicting evidence.
They submit that in light of AA's wills, together with my findings made about advice taken by her, there were reasonable prospects of opposing the application. They submit this is particularly so given my findings made about the dedication of S2 and S3 to the care of their mother and the rejection of allegations about mistreatment of AA. The main issue that was determinative of the application concerned the 2023 property transfers, and the ultimate resolution of that issue went against S2/S3 but their arguments against that resolution could not be described as hopeless or doomed to fail.

The statutory framework and the principles relating to costs in guardianship and administration applications

The costs application has been brought pursuant to two provisions which are as follows.

Costs applications under s 16(4) of the GA Act

Section 16(4) of the GA Act provides that:
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 State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
In RK [2020] WASAT 53 (S) at [22] the full Tribunal stated that 'the starting point in respect of applications for costs in relation to GA Act proceedings is that parties to those proceedings should bear their own costs'.
The Full Tribunal went on to state at [23] - [28] citations omitted:[4]
23A party seeking a costs order in respect of proceedings under the GA Act bears the onus of persuading the Tribunal to exercise its discretion to make a costs order.
24The Tribunal is required to exercise its discretion having regard to all of the circumstances of the particular case, including the nature of the GA Act jurisdiction, starting from the presumption that no order for costs will be made. Considerations which may be relevant to that exercise of discretion have been identified in a number of cases. These include factors such as the nature of GA Act proceedings, which are of an inquisitorial nature, are conducted informally, and in which parties frequently appear without any legal assistance; whether an application would have been made to the Tribunal in the absence of the party's application, and thus whether, without the intervention of the party, the represented person would not have had the benefit of the protection of an order made by the Tribunal; circumstances of urgency warranting legal representation in order to ensure the Tribunal is able to consider an application in a timely manner; circumstances that might impede a party being able to present their case to the Tribunal without legal representation; and the complexity of the application or other circumstances warranting the assistance of a legal representative.
25In a case where the Tribunal is moved to exercise its discretion to award costs in GA Act proceedings, s 16(4) of the GA Act makes specific provision for the Tribunal's exercise of that discretion, in three respects.
26First, s 16(4) conditions the positive exercise of the Tribunal's discretion on it being satisfied that the party to the GA Act proceedings who seeks costs 'has acted in the best interests of the represented person or a person in respect of whom an application is made'. That condition is entirely consistent with the principle which underlies s 4(2) of the GA Act, namely that the primary concern of the Tribunal shall be 'the best interests of any represented person, or of a person in respect of whom an application is made'. It would be antithetical to that requirement for the Tribunal to make an award of costs to a party to GA Act proceedings who has acted otherwise than in the best interests of the represented person (RP) or the person in respect of whom an application was made - that is, the proposed represented person (PRP).
27Secondly, s 16(4) of the GA Act permits that the Tribunal order the costs of a party to be paid by, or out of the assets of, the RP or PRP. That power reflects the fact that proceedings under the GA Act are not conducted on an inter partes, adversarial, basis, but rather are inquisitorial in nature. The PRP very often does not, and may not be in a position to, play an active role in the proceedings. The grant of power to the Tribunal to require that the costs of a party be paid by, or out of the assets of, the RP or PRP, is consistent with the fact that the jurisdiction conferred under the GA Act is to be exercised in the best interests of the RP, or PRP. That power also reflects the public policy underlying the GA Act which is to permit applications to the Tribunal to be made by any person, so as to ensure that those adults who need assistance in their personal affairs, or in the administration of their estates, are able to obtain that assistance through the appointment of a guardian or administrator by the Tribunal, and on the basis that in an appropriate case, it is the RP or PRP who should bear the costs of such applications, which are to be dealt with in their best interests.
28Thirdly, s 16(4) of the GA Act indicates that the amount of costs which may be awarded should be 'such costs relative to those proceedings as the [Tribunal] thinks fit'. The award of costs is thus not referable solely to the costs incurred by that party (although clearly the costs awarded could not exceed the costs actually incurred by a party, consistent with the compensatory nature of costs orders made by the Tribunal). Rather, those words confirm the Tribunal's wide discretion to award 'such costs'- namely an amount of costs - 'relative to' the proceedings. The words 'relative to' mean 'having reference or regard to'; 'relevant or pertinent to'; and 'correspondent; proportionate'. The words 'relative to' thus direct the Tribunal's attention to matters such as the role or contribution played in the proceedings by the party seeking costs, the role of other parties to the proceedings, the complexity of the proceedings, and the best interests of the RP or PRP, including their ability to pay an award of costs. The latter is an important consideration in respect of the quantum of costs. Many RPs or PRPs do not earn income, and are not in a position to do so. For many, their only source of income is a disability or aged pension. It would be antithetical to the best interests of the RP or PRP (and, therefore, contrary to s 4(2) of the GA Act) for an award of costs to be made in such a quantum as to adversely impact on their well-being. That is not to suggest that costs will more readily be awarded in the case of RPs or PRPs who are wealthy, but rather to acknowledge that a positive exercise of discretion in favour of an award of costs to be paid by an RP or PRP is less likely if the RP or PRP does not readily have any means to pay such costs.
[4] RP = represented person, PRP = proposed represented person.

In Re WA and IA Ex Parte AA and JA[2011] WASAT 33 at [59] the Tribunal set out some of the factors to be taken into account in exercising its discretion to award costs. These are in turn derived from LC and JS [2007] WASAT 127 at [56].
The factors include:
•where it is unlikely that an application would have been made to the Tribunal and the proposed represented person benefit from the protection of an order, had not legal advice been sought by the applicant;
•where there are serious allegations that the proposed represented person is suffering from abuse, and legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
•where conflict between parties is of such magnitude that it is unlikely they could present a coherent case to the Tribunal in respect of the history and needs of the proposed represented person without legal assistance;
•where the application is of such complexity that legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
•where the application is contentious and unique;
•where the application raises a special point of law.
The Tribunal in Re WA and IA Ex Parte AA and JA noted at [58] that the list is not exhaustive and the exercise of the Tribunal's discretion is not limited by this criteria. Further the Tribunal stated at [60] that 'awards of costs pursuant to s 16(4) of the GA Act are not common. They have generally been made when an application for costs is made by the applicant in the substantive application … and the Tribunal finds the represented person benefitted by the applications being made and protective orders made'.[5]
[5] The Tribunal also went on to cite exceptions.

Costs applications under s 87 of the SAT Act

Section 87 of the SAT Act provides, inter alia, that:
(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.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
The enabling Act in these proceedings is the GA Act. As I have already outlined, s 16(4) of the GA Act provides that in proceedings under the GA Act, in certain circumstances, the Tribunal may make an order that the costs of a party be paid out of the estate of the person in respect of whom the application is made. Section 16(5) of the GA Act provides that nothing in s 16 limits any other power of the Tribunal under the SAT Act. Therefore the power to order costs under s 16(4) is additional to the power of the Tribunal to make a costs order under s 87(2) of the SAT Act.
The starting point under s 87(1) of the SAT Act is that each party is to bear its own costs (Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [50]).
However s 87(2) confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of the other party.
In PHQ and LPQ [2015] WASAT 5 at [33] the Tribunal stated that:
The Tribunal is likely to consider awarding costs in guardianship and administration applications where it appears that costs were unnecessarily incurred due to the unreasonable actions of the applicant, whether those actions are in pursuing an untenable application, initiating and pursuing an application for an improper purpose and/or generally acting in a way so as to disadvantage the proposed represented person such that they unnecessarily incur legal and other costs associated with the proceeding.
In my view this principle can be broadened to include the unreasonable actions of the parties in guardianship and administration matters.
In Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85] the Tribunal stated that:
…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.
In GB [2020] WASAT 61 (S) at [56] the Tribunal awarded costs to the respondent in respect of the conduct of the proceeding in particular where, inter alia, submissions were filed late, and time was given to cross-examination of the respondent (the daughter of the represented person) on historical matters which were not relevant and did not assist the Tribunal to determine the review. The Member found that the continuation of the application and the conduct of it at the hearing unnecessarily added to the respondent's costs [57].
In GB the Tribunal considered the principles in relation to the assessment of the quantum of costs at [58] - [61] in respect of an application made pursuant to s 87.
In summary the Tribunal approaches the task of fixing costs in a broad and relatively robust fashion.[6]
[6] GB [58].
An award of costs is not intended to be a full indemnity for the actual expenses incurred by a party to a proceeding. Further, the Tribunal must be satisfied that the claim is reasonable having regard to the matter before it.[7]
[7] GB [59].
In GB at [60] the Tribunal referenced In Winterbourne and Western Australia Planning Commission [2013] WASAT 72 (Winterbourne) at [44] where Parry J cited J & P Metals Pty Ltd and Shire of Dardanup [2006] WA SAT 282 (S); (2006) 45 SR (WA) 242 at [38]:
… Tribunal's obligation to minimise the cost parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach … proceedings in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order.
Further in GB at [61] the Tribunal referenced Winterbourne at [45] where Parry J further stated:
In Medical Board of Australia and Costly [2013] WASAT 2 the Tribunal said the following at (66) in relation to costs assessments:
… In our view, in matters of this nature, the preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broadbrush approach, the work necessarily done to bring the proceedings to a conclusion[.]

Consideration

Taking into account the principles to which I have referred, the uncommon circumstances of this case, and the submissions of the parties, I am persuaded that a costs order should be made in favour of S1/S1W pursuant to both s 16(4) and s 87(1) for the following reasons.

Consideration of the s 16(4) application

Firstly, I am satisfied and I find, that S1 acted in AA's best interests in making the application because in circumstances where:
(i)AA's transfer of her substantial share in eight of her properties to S2 and S3 in April 2023 was to her financial detriment and at the cost of her own financial security;[8]
(ii)S2 and S3 facilitated the transfers cognisant of AA's impaired cognition;[9]and
(iii)S2 and S3 did not act with reasonable diligence to protect their mother's financial interests,[10]
it was necessary for S1 to make the application to protect his mother's financial interests.
[8] Reasons [118].
[9] Reasons [118].
[10] Reasons [119].
S2 and S3 accept, and I am satisfied and I find, that but for the application it is likely that the 2023 property transfers would not have been examined. S2 and S3 agree that there is a clear conflict of interest between them and their mother as to what is to happen in respect of those transfers, and that the Public Trustee ought be appointed with powers to commence litigation in that regard.[11] Without S1's intervention AA's property would have remained under the control of S2 and S3 in their capacity as her enduring attorneys. I am satisfied that in bringing the application S1 has acted in his mother's best interests, and that but for the application her financial interests would not have been protected.
[11] Reasons [125].
S2 and S3 contend that the 2023 transfers of AA's interest in eight of her properties is in essence what would have happened under her 2013 will (excepting the payment of registration fees and stamp duty which AA paid, and which would not otherwise have been payable under her will). This misses the point. As I found in my Reasons,[12] in facilitating the 2023 transfers S2 and S3 'lost sight of what is in AA's best financial interest while she is living' (emphasis added). Their actions have been at the cost of AA's own financial security, diminishing their mother's ability to pay for her ongoing residential aged care should that be required if her care needs can no longer be met at home.[13] It was conceded on behalf of S2 and S3 that 'given the level of care and the cost of care [S2] and [S3] are going to need to be putting money in to top it up … because the rent is not going to pay for the amount of care that she needs'.[14] AA ought not be put in a position where she may need to rely on the financial assistance of S2 and S3.
[12] Reasons [120].
[13] Reasons [120], [217].
[14] Reasons [217].
S2 and S3 invite me to infer from my findings that S1 was financially motivated to rekindle his relationship with his mother, and financially motivated to bring the application. Indeed that has been their contention since the outset of these proceedings. In my Reasons I noted there were differing versions of who initiated the contact but I did not make any findings as to who initiated the rekindling of the relationship. In my Reasons I did not draw the inferences I am again invited to make. I did not need to do so as it was not relevant to the determination of the substantive application. Whilst I accept that these inferences may be drawn, so long as I am satisfied, and I am, that S1 has acted in AA's best interests in bringing the application, the fact that he may have another motivation, does not preclude me from awarding him costs. In my view S1 may have had a financial motivation in bringing the application, but his actions in bringing the application were manifestly in AA's best interests.
S2 and S3 contend that other than the 2023 property transfers there were no other findings that reflected in an adverse way on S2 and S3's care for AA. However, for the reasons set out at [217] - [222] of the Reasons I considered that S2 and S3 were not suitable to remain as their mother's enduring guardians.
S1's actions resulted in revocation of the EPG and there is now proper oversight of AA's personal affairs by an independent guardian. I am satisfied and I find that S1's actions were in AA's best interests from the perspective of her personal welfare.
S1's application was successful and he obtained the orders he was seeking. The proceedings were necessary, justified, and in AA's best interests. AA was found to lack capacity, the EPA/EPG appointing S2 and S3 as AA's enduring attorneys and enduring guardians were revoked, and an independent guardian and administrator were appointed to protect AA's estate and her person.
I am satisfied and I find that there was a clear benefit to AA established through orders made by securing independent oversight of her personal and financial affairs.
I am satisfied and I find that without S1's actions in bringing the application, AA would not have had the benefit of the Tribunal's protective orders, in respect of her financial and personal affairs.
I am satisfied and I find that S1's actions have been in AA's best interests. That condition, outlined in RK has been met. It is therefore appropriate that AA should bear S1's costs in making the application.
In respect of S2/S3's submission concerning the unresolved question of what would happen to costs awarded to S1 'in light of his bankruptcy/insolvency agreement', I consider that what happens to any costs awarded is speculative, and not relevant to my deliberations.
Secondly legal representation was necessary in this case for the following reasons:
(i)the complexities of AA's estate[15] and the circumstances of the transfers of AA's substantial share in eight of her properties to S2 and S3 required legal advice and representation to enable S1 to present a reasoned and coherent case to the Tribunal;
[15] Reasons [51] - [54].
(ii)the proceedings, uncommonly for proceedings in this jurisdiction, involved several directions hearings, a 2 day final hearing where legal representatives (including senior counsel representing S2 and S3) cross-examined witnesses, a three volume hearing book compromising 1,002 pages of evidence.
Further, S1/S1W, through their legal representative:
•made submissions including with respect to Lawyer 1 and his conflict of interest in acting for AA, S2 and S3 simultaneously;
•made an application for a summons compelling Lawyer 1 to appear as a witness at the final hearing;
•sought orders for the provision of what became critical medical evidence; and
•made submissions to limit the time S2/S3's counsel spent on cross-examination at the final hearing.
In my view these steps required the assistance of a legal representative to enable S1 to present a reasoned and coherent case to the Tribunal.
(iii)The nature of the wrongdoing by S2 and S3 required S1 and S1W to have legal advice and representation. For example: S2 and S3's facilitation of property transfers to themselves, at a time when they were AA's enduring attorneys in a fiduciary relationship with AA, and cognisant of her impaired cognition; the use of the EPG by S3 to apply for a FVRO in circumstances where joint enduring guardians are required to act unanimously. In my view S1/S1W required legal representation to present a coherent and reasoned case to the Tribunal in respect of the wrongdoing by S2 and S3.
(iv)S2/S3's legal representative's letter of 19 July 2024 to S1/S1W's legal representative regarding S1's bankruptcy and his company going into liquidation contended that in the circumstances S1 could not expect to be appointed to any role in respect of the conduct of his mother's affairs, and that it was time for him to discontinue his application and give AA 'peace of mind'. This example is an indicator of the highly conflictual nature of these proceedings (which I have dealt with in the third ground below). It was an attempt to deter S1 from pursuit of his application. It demonstrates a fundamental misunderstanding of the protective and inquisitorial nature of the jurisdiction, which is focussed on the best interests of the proposed represented person, not the parlous state of an applicant's finances in circumstances where he was not seeking to be appointed to any decision-making role but rather was seeking public appointments. Concerningly the letter was written after geriatrician 1 had reported that AA had a mental disability and lacked capacity to make decisions in respect of her estate and her person.[16] The letter may be characterised as intimidating, particularly to an unrepresented party. It was most certainly inappropriate. I accept the submission that without professional advice a self-represented applicant may have been deterred from maintaining protective proceedings on receipt of such a letter. It must be noted that withdrawal of an application requires the leave of the Tribunal, which leave would be unlikely to be given in light of such capacity evidence.
[16] Reasons [41] - [45].
In my view the complexities of this case were such that legal advice and representation was required to enable S1 to present a reasoned and coherent case to the Tribunal.
Thirdly, the magnitude of the conflict in this case is uncommon in GAA proceedings, involving as it did decades of unresolved grievances culminating in the commencement of these proceedings.
Those grievances manifested in a number of ways including in AA's wills disentitling S1 from any provision from her estate,[17] FVRO proceedings taken against S1 and S1W by S2 during the course of these proceedings,[18] defamation proceedings against S1W by S2 and S3 during the course of these proceedings,[19] S2 and S3 preventing S1 and his family from interacting with AA,[20] the installation of surveillance devices by S3 in AA's home,[21] the dispensing of a service provider to AA for reasons including that S1 had been on the board of that service provider.[22] The 2023 transfer of AA's properties occurred in the context of this family conflict.
[17] Reasons [4], [5].
[18] Reasons [18].
[19] Reasons [19].
[20] Reasons [175].
[21] Reasons [197] - [201].
[22] Reasons [203].
I am persuaded that the conflict between the parties is of such magnitude that it is unlikely that S1 and S1W could have presented a reasoned and coherent case to the Tribunal without legal assistance and representation.

Conclusion

In all of the circumstances of these proceedings I am persuaded to exercise my discretion to make a costs order pursuant to s 16(4) in favour of S1 and S1W payable by AA, or out of her assets.
In reaching this conclusion I am mindful that costs awards are uncommon in this jurisdiction, but these proceedings were uncommon in the many respects I have already outlined.

Consideration of the s 87 application

I will now consider S1 and S1W's submissions in support of a costs order payable by S2 and S3.
The only circumstance that I am persuaded warrants the making of a costs order against S2 and S3 is the inappropriate 'peace of mind' dated 19 July 2024 sent by their legal representative during the course of these proceedings. S1 and S1W incurred unnecessary legal costs in responding to this letter, albeit only $324, which is somewhat insignificant in light of the total costs they are seeking ($54,043.70). Nevertheless, costs ought be awarded to them in respect of this letter, for the reasons I have outlined in [73(iv)] above.
I am not otherwise persuaded that S2 and S3's conduct during the proceeding led to S1 and S1W incurring unnecessary legal costs for the following reasons.
Firstly, whilst the issue of what interpreter would best facilitate AA's understanding of the proceedings took up some time in discussion at directions hearings and the final hearing, it was simply a circumstance where the parties had conflicting views about this issue (whether AA's best understanding was facilitated by an Italian speaking interpreter or an Italian speaking interpreter using the Sicilian dialect).
It was AA's lawyer's[23] view that AA's best understanding was facilitated by using the Sicilian dialect, with S2 and S3 in agreement. S1 disagreed.
[23] Lawyer 1.
However, at the outset of the final hearing AA conveyed that she wished the interpreter to use Italian, but shortly thereafter elected not to participate in the hearing (notwithstanding that she had previously expressed her wish to participate).
There was nothing improper in S2 and S3 maintaining that their mother's best understanding was facilitated by using an Italian speaking interpreter in the Sicilian dialect. I am not persuaded that this circumstance is a reason for making a costs order against S2/S3.
Secondly, I agree with S2 and S3's submission that the fact that S2/S3 engaged multiple lawyers in the course of the proceeding is not relevant to whether a costs order ought be made. Nor is the limited availability of their lawyer for a final hearing relevant to my consideration of whether to make a costs order. I am not satisfied that these circumstances led to S1/S1W incurring unnecessary costs.

Thirdly, I am not persuaded by the submission that S2's implausible evidence about when he first observed his mother's declining cognition to be conduct which required additional resources to deal with. It was simply implausible evidence. There is nothing in S1/S1W's submissions to persuade me that it required additional resources to deal with.
Fourthly, S3's misguided application for a FVRO in another jurisdiction, was a circumstance that led me to find that the EPG was not a less restrictive alternative to the appointment of a guardian, accepting as I did the submission that 'people who don't know how an EPG operates and who go and apply for a VRO using it, and don't do it jointly, they're just not appropriate people to be continuing to hold that EPG'.[24] However I do not accept that it was conduct that required additional resources to deal with in these proceedings. Albeit it did require S1 and S1W's resources in the Magistrates Court, where they engaged the same legal representative as they did in these proceedings.
[24] Reasons [221].
Fifthly, the adverse findings I made in respect of S2 and S3 (cited by S1 and S1W at [23] above) are not relevant to S2 and S3's conduct in the proceedings that led to S1 and S1W incurring unnecessary legal costs. Rather it was conduct by S2 and S3 that was the catalyst for the application being made by S1, and which I have considered in my deliberations in respect of the s 16(4) application.
Further in my view, notwithstanding that the orders sought by S1 were made, S2 and S3 were entitled to oppose S1's application and the allegations made against them, some of which were not made out by S1. This is not a jurisdiction in which costs follow the result.

Application of the principles to S1/S1W's claim for costs

The total quantum of costs claimed by S1/S1W is $54,043.70[25] payable pursuant to either s 16(4) and/or s 87.
[25] Submissions dated 21 February 2025.
S1 and S1W have provided their legal representative's timesheet in support of the costs application for the period to 13 February 2025 which claims a total of 1,792 units of time (being 179.2 hours) at an hourly rate of $360.
The total quantum claimed also includes the cost of preparing the costs application (which is not included on the timesheet), and goodwill discounts of approximately 10% to invoices issued to S1/S1W. The total sum claimed includes GST.
S2 and S3 do not take any issue with the hourly rate ($360) claimed by S1 and S1W's legal representative, which they accept is below scale. They submit, and I accept that the time between 2 November 2024 and 3 January 2025 are not costs related to the proceedings that would be payable on a party/party basis, and in respect of those costs I note that they total $1,656. That period covers the period during which my decision was reserved.
S2/S3 submit that the amount of $54,043.70 is an outlier and well above the highest amount awarded in other cases (PHQ at [45] ‑ $16,691.10, GB [2020] WASAT 61 (S) at [64] - $7,000, PJC and RJC [2008] WASAT 224 at [68] - $3,697.80 and Y and CO [2022] WASAT 166 at [59] - $5,000.
S2/S3 submit that no more than $15,000 should be allowed.

Consideration of quantum

I accept S1/S1W's submission that my orders enable the Public Trustee to investigate and potentially recover the transferred property interests in the eight properties, and that the Public Trustee now has authority to commence litigation regarding the 2023 property transfers which could result in significant recovery for AA's estate.
However in my view a costs award ought be based on the evidence that was before me as to the size and composition of AA's estate when I made orders on 3 January 2025, rather than on speculation as to what the estate may comprise in the future.
An outline of AA's estate is in my reasons (Reasons [51] - [54]) and the details are in the Public Trustee's report. In summary AA's estate comprises her share in eight properties (residential and commercial) which, apart from the one where she resides, are rented out, and the rental income and expenses belong to AA (notwithstanding the proportional ownership). It is not the case that AA's only asset is her share in the property where she resides, as is commonly the case in this jurisdiction. AA also has substantial shareholdings, and a vehicle. AA does not receive a pension, as she exceeds the income and assets threshold for eligibility.
Section 16(4) envisages that a costs award may be paid out of the represented persons assets. In my view AA has the ability to pay costs albeit that she may need to pay the costs from her assets (either from the sale of some of her substantial shareholdings or one of her eight properties).
In my view S2/S3's submission that a factor militating against a costs order is that the payment of costs by AA would likely require her assets to be sold in order to pay costs to be disingenuous. It is disingenuous because the very actions of S2 and S3, in facilitating the dissipation of AA's assets in their favour have created this circumstance.
In considering the quantum of costs I have regard to the conduct in the proceeding of S1 and to a much lesser extent S1W. For example S1's lack of candour in giving evidence to the Tribunal about whether he was in financial difficulty, which led me to find he was an unreliable witness.[26] Some of S1/S1W's allegations were not made out including S1's serious allegation that S2 was medicating AA for compliance which was based on 'just a suspicion', and S1W's allegation that AA was vulnerable to being exploited and manipulated regarding the medicine she is given, in respect of which she had no evidence.[27] In my view the quantum of costs ought be reduced because of S1's conduct, and to a much lesser extent S1W's conduct.
[26] Reasons [144].
[27] Reasons [154].
In considering the award of costs payable by AA in my view the sum of $30,000 is proportionate to these proceedings, having regard to the actual costs incurred by S1/S1W ($54,043.70), S1 and S1W's role in the proceedings, the role of S2/S3, the complexity of the proceedings, and the best interests of AA including her ability to pay. It reflects the extensive work required in this complex matter including consideration of voluminous documentary evidence including medical evidence and evidence in respect of the property transactions, legal assistance in respect of procedural matters, a 2 day final hearing with cross‑examination of witnesses, and attendance at multiple directions hearings.
In my view these proceedings are an outlier when compared with other guardianship proceedings in the Tribunal, and the award of costs reflects that.
In considering the award of costs payable by S2/S3 in my view a sum of only $300 ought be awarded, being for the 'peace of mind' letter.
For the reasons I have given I am persuaded to exercise my discretion and make an award of $30,000 payable by AA and $300 payable by S2/S3. I have allowed a longer time frame for the payment of costs by AA given that it may require the sale of assets.

Orders

The Tribunal orders:
1.Within 120 days of the date of this order the administrator of the estate of AA is to pay to S1 and S1W the sum of $30,000 from AA's estate as a contribution to their legal costs incurred in respect of the application heard by me on 30 October 2024 and 1 November 2024 and determined on 3 January 2025.
2.Within 30 days of the date of this order S2 and S3 are to pay to S1 and S1W the sum of $300 as a contribution to their legal costs incurred in respect of the application heard by me on 30 October 2024 and 1 November 2024 and determined on 3 January 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS V Haigh, MEMBER
11 JUNE 2025