AR and RR
[2008] WASAT 215
•17 SEPTEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AR and RR [2008] WASAT 215
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)
MS D DEAN (MEMBER)
HEARD: 19 JUNE 2008
DELIVERED : 17 SEPTEMBER 2008
FILE NO/S: GAA 2282 of 2007
GAA 31 of 2008
BETWEEN: AR
Applicant
AND
RR
Proposed Represented Person
Catchwords:
Guardianship - Administration - Applications dismissed - Applications for costs - Whether applicant should pay contribution towards legal costs of proposed represented person - Whether applicant entitled to have costs paid by proposed represented person - Applications dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 16, s 97
State Administration Tribunal Act 2004 (WA), s 87
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 427
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Proposed Represented Person : Mr M Devlin
Solicitors:
Applicant: Self-represented
Proposed Represented Person : Young & Young
Case(s) referred to in decision(s):
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant had asked the Tribunal to appoint an administrator and a guardian and for his brother who he believed was suffering from depression as a result of which his health was at risk and he was vulnerable to financial exploitation.
At the time of the applications the proposed represented person had not seen a doctor for a long time and was refusing to do so. There was no medical evidence before the Tribunal about his capacity to make decisions for himself.
The proposed represented person engaged a solicitor to represent him in the proceedings, in the course of which he agreed to see a general practitioner who assessed him as capable of making decisions for himself.
The Tribunal dismissed both applications.
The proposed represented person applied for a costs order under s 87(2) of the State Administrative Tribunal Act 2004 (WA). He said it was reasonable for him to engage a lawyer to resist the applications. He said the applicant had acted unreasonably in bringing the applications without evidence to support them; he had been on notice from early in the proceedings that the proposed represented person would seek a costs order but he pressed on regardless. The proposed represented person asked for an order that the applicant pay half his legal costs of approximately $14,750.
The Tribunal accepted that it was reasonable for the proposed represented person to engage a solicitor to resist the applications but it was not satisfied that there was sufficient reason to depart from the general rule in s 87(1) of the State Administrative Tribunal Act 2004 (WA) that parties to proceedings before the Tribunal bear their own costs.
The applicant asked for an order under s 16(4) of the Guardianship and Administration Act 1990 (WA) for his costs, which he described as significant but which he did not quantify, to be paid by his brother. He said his applications were given substance by concerns expressed by family members and others involved with his brother, the police and the Public Advocate; he had not wished the proceedings to become adversarial and it was not necessary for his brother to engage a solicitor; given the lack of medical evidence, he had been prepared to withdraw the applications but the Tribunal had decided it should hear them.
The Tribunal was not satisfied, in the circumstances, that it should make an order under s 16(4) of the Guardianship and Administration Act 1990 (WA) which must be read in light of the general rule that parties bear their own costs.
The Tribunal dismissed both applications for costs.
Background
Parties to proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) seek orders in relation to the costs they incurred in the proceedings.
The proceedings concerned an application by AR for the appointment of an administrator and a guardian for his brother, RR, who engaged a solicitor to represent him to resist both applications. After a series of directions hearings and a final hearing over two days, the Tribunal dismissed both applications.
RR now seeks an order under s 87(2) of the State Administration Tribunal Act 2004 (WA) (SAT Act) that AR pay a contribution towards his legal costs. AR seeks an order under s 16(4) of the GA Act for his costs to be paid by RR.
The applications for administration and guardianship orders
On 15 November 2007, AR lodged an application for the appointment of an administrator for RR stating that he considered it his duty to stop his brother from 'self-destructing financially and health-wise' and to protect him from exploitation by people who did not have his interests at heart.
AR alleged that the substantial estate comprising valuable parcels of land in the country, several houses and cash that RR had inherited from their father had dwindled because RR had fallen prey to individuals involved in various criminal activities. AR alleged these individuals were obtaining cheques and loans from RR and charging goods to his accounts. He said his brother was vulnerable to exploitation and he was concerned he would end up destitute; the family had done everything they could but RR refused their assistance.
AR also outlined his concerns about his brother's physical health including difficulty walking and dental problems, and what he said were untreated ulcers on his legs. He claimed that RR had not seen a doctor for many years and refused to do so; he suspected he was suffering from depression, memory lapses and mood swings.
On 26 November 2007, the Tribunal received correspondence from the Public Advocate advising that AR had contacted her Office and she was investigating his allegations pursuant to s 97(1)(c) of the GA Act. She stated that her preliminary inquiries had resulted in information from the police and others consistent with the concerns expressed by AR. She said she was concerned for RR's welfare and it appeared there might be the need for an administrator to protect his estate but his capacity was unclear and not easily substantiated.
The administration application was listed for hearing on 11 December 2007. By letter dated 4 December 2007, Young and Young Lawyers notified the Tribunal they were acting for RR. They advised that RR would strongly resist the application and asked for the hearing on 11 December 2007 to be by way of a directions hearing.
On 11 December 2007 the Tribunal made procedural orders and listed the application for hearing on 24 January 2008, and it asked the Public Advocate to investigate the applications pursuant to s 97(1)(b(iii) of the GA Act.
On 4 January 2008, AR lodged an application for the appointment of a guardian for his brother. Young and Young sought, and were granted, an adjournment of the hearing so that RR could respond to that application.
At a directions hearing on 20 February 2008 counsel for RR submitted that the applications were 'doomed to fail' and he referred to statements by AR in the applications to the effect that there was nothing wrong 'mentally' with RR. Counsel submitted that AR should be invited to withdraw his applications and foreshadowed an application for costs in the event that they proceeded and failed.
Throughout the proceedings AR sent a number of submissions detailing his concerns about the people RR was involved with. Submissions were also received from his sisters. They raised sufficient concern that the Tribunal considered it in RR’s best interests to allow the applications to proceed and determine them as best it could.
At a hearing on 9 April 2008, the Tribunal heard from AR and his sisters about their concerns about RR, including the extent to which his property had fallen into disrepair. It also heard from the person whom RR had appointed his attorney under an enduring power of attorney who was familiar with his financial situation and who was concerned about the rapid diminution of his estate and his vulnerability to various individuals. In the course of the hearing RR agreed to see a doctor for an assessment.
The hearing was adjourned for RR to attend a general practitioner of his choice. The Tribunal subsequently received a brief medical report from the doctor stating that, in his opinion, RR could take care of his own health; he was morbidly obese and would need better care than he was taking of himself; to that extent he was 'lacking in reasonable judgment in respect of matters relating to his own person and health risks' but he did not show any sign of depression or 'mental disabilities of mental illness'.
Prior to the final hearing day on 19 June 2008 the Tribunal received correspondence from the Public Advocate stating that she had been advised by the police that they held confidential information, which could not be released, about RR's associates and police attendance at his property. The information suggested that RR might not have been frank with the Tribunal at the first hearing about matters concerning the police. In the end the Tribunal decided against trying to obtain further details from the police.
The Tribunal decided that there was insufficient evidence before it to displace the presumption of capacity (see s 4(2)(b) of the GA Act) and dismissed both applications.
Submissions concerning costs
RR’s application for costs under s 87(2) of the SAT Act
In support of his application, RR submits that:
(i)AR did not forewarn him that he would be making the application for administration and did not serve a copy of the application on him; he learned only about it when one of his sisters received a notice from the Tribunal of the first hearing.
(ii)at time of making his application AR had no medical evidence to support the orders sought;
(iii)it was unreasonable for him to commence the proceedings without sound basis;
(iv)it is arguable that AR brought the proceedings for an ulterior purpose;
(v)RR has had to incur 'unnecessary' legal costs in resisting the applications over a period of seven months;
(vi)it was reasonable for RR to engage solicitors to appear for him;
(vii)RR's resistance to the proceedings was justified and was vindicated by the Tribunal's dismissal of the applications;
(viii)AR was on notice that RR would ask for costs but he pursued his applications nevertheless.
RR asks that AR be ordered to pay a contribution of one-half of his legal costs, the total of which is $14,732.
AR's application for an order under s 16(4) of the GA Act
In response, and in support of his application, AR submits that:
(i)he did not make his applications lightly: he had contacted the Public Advocate, police, family members and others including mental health professionals before lodging his applications; his brother's attorney under the EPA and some of their sisters believed RR was depressed;
(ii)his application for administration was lodged on the recommendation of the Office of the Public Advocate and after speaking with Tribunal staff; he lodged his application for guardianship after the first directions hearing at which the Tribunal indicated that RR's health was a matter for a guardianship, rather than an administration application;
(iii)to minimise costs he chose not to have legal representation;
(iv)He did not wish to proceed in an adversarial manner but he believed it best to put the matter before the Tribunal for determination;
(v)had RR’s counsel suggested to him earlier in the proceedings that he get a medical assessment, RR might have been saved legal costs;
(vi)he had no ulterior motive and did not seek his own appointment; he would have been happy with RR's attorney or their sisters being appointed;
(vii)he only sought to protect his brother as he believed their father would have wanted him to;
(viii)his own costs were for time, travelling and preparation were significant;
(ix)it was not necessary for RR to engage a solicitor; the Tribunal process is not, and was not intended to be, adversarial; matters could been sorted out without lawyers;
(x)he was prepared to withdraw his applications in January 2008 but the Tribunal considered it in RR's best interests to determine the proceedings.
Relevant legislation
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:
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.
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.
Reasons for decision
RR's applications for costs under s 87(2) of the SAT Act
The Tribunal has a broad discretion to award costs in appropriate cases: s 87(2) of the SAT Act. However, for an order to be made under s 87(2), 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.
The circumstances in which the Tribunal might make a costs order have been discussed in a number of cases: see generally Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341.
In Chew and Director General of the Department of Education and Training [2006] WASAT 248, the Tribunal observed at [85]:
We take the view that in proceedings under the [SAT] 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.
Nothing about the current applications suggests to the Tribunal that AR was motivated by anything other than concern for RR's welfare.
The Tribunal does not accept that AR acted unreasonably in bringing the applications. His concerns were shared by other family members as well as RR's attorney under the EPA. The Public Advocate had expressed her concern that RR might be in need of an administrator. Her investigation and discussions with the police gave substance to AR's concerns.
RR's apparent need for medical attention and his refusal to consult a doctor were among AR's main concerns. It is not surprising, then, that there was no medical evidence available at the time of the applications. However, the report from the general practitioner bore out RR's neglect of his own health, even if orders were not ultimately made.
The Tribunal itself considered the concerns raised were sufficiently serious that it was in RR's best interests to obtain what information it could, including by way of an investigation by the Public Advocate, before dismissing the applications.
AR did not engage legal representation and the Tribunal accepts that he did what he could to minimise costs. RR was entitled to legal representation and his resistance to the applications was vindicated in the end. However, the fact that the Tribunal dismissed both applications is not sufficient reason for a costs order.
We see no other reason to depart from the rule in s 87(1) of the SAT Act that parties to Tribunal proceedings pay their own costs.
AR's applications for costs under s 16(4) of the GA Act
Section s 16(4) is wide in its terms: a party need only satisfy the Tribunal that they have acted in the best interests of the person whom proceedings concern. 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.
Most parties in proceedings under the GA Act have only the best interests of their close family member, or whomever the proceedings concern, at heart. However, something more than merely acting in the best interests of the person concerned is required before the Tribunal will order a party's costs be paid by, or out of the estate of, the person whom the proceedings concern.
Section 16(4) must be read in light of s 87 of the SAT Act which provides the starting point that parties to proceedings before the Tribunal are to bear their own costs. It is relevant that s 16(1) of the GA Act, which was repealed on proclamation of the SAT Act, provided the same starting point in that parties to proceedings under the GA Act were to bear their own costs unless otherwise provided, including by s 16(4).
AR describes his costs as 'significant' but he has not quantified them. From the information before the Tribunal, they are the costs in terms of time, travel and preparation that any person would incur in bringing an application. AR's costs may have been greater than some others because the proceedings were protracted but the Tribunal is not satisfied that there is sufficient ground for an order that his costs be paid out of RR's estate.
Orders
The Tribunal orders that both applications be dismissed.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J TOOHEY, SENIOR MEMBER
0
2
3