As and GS - [2013] WASAT 49

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)

CITATION: AS and GS [2013] WASAT 49

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 1 FEBRUARY 2013

DELIVERED : 12 APRIL 2013

FILE NO/S: GAA 3889 of 2012

BETWEEN: AS
Applicant
AND
GS
Respondent

Catchwords:

Guardianship and administration Costs under s 87 of the State Administrative Tribunal Act 2004 (WA) Respondent unreasonably continued proceedings under the Guardianship and Administration Act 1990 (WA) Costs awarded

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(b), s 64(1)
State Administrative Tribunal Act 2004 (WA), s 15, s 87

Result:

Costs awarded

Summary of Tribunal's decision:

Proceedings were commenced by the respondent in the Tribunal's jurisdiction under the Guardianship and Administration Act 1990 (WA). The respondent applied for an administrator to be appointed for the applicant on the basis that she was unable by reason of a mental disability to continue to conduct proceedings in the Family Court.
Both the applicant and respondent were parties to an action in the Family Court for a property settlement.
The Tribunal dismissed the application because the evidence was insufficient to rebut the presumption of capacity.
The applicant sought costs from the respondent on that the basis that the respondent unreasonably continued with the application when he knew he did not have sufficient evidence that an administration order could be made.
The Tribunal accepted the applicant's submission.
Costs were awarded.

Category: B

Representation:

Counsel:

Applicant: Mr W Sloan
Respondent: N/A

Solicitors:

Applicant: O'Sullivan Davies Lawyers
Respondent: N/A

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

Medical Board of Western Australia and Aung Tin Kyi [2009] WASAT 22

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These reasons relate to an application for costs made by AS (applicant) against GS (respondent) under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The applicant and respondent are parties to an action in the Family Court of Western Australia (Family Court) for a property settlement of their marital estate (Family Court proceedings).
On 30 October 2012 the respondent filed with the Tribunal an application for an administrator to be appointed for the applicant pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act) (Tribunal proceedings).
In the Tribunal proceedings the respondent submitted that the applicant had failed to comply with orders of the Family Court and was delaying progress of the Family Court proceedings. He stated that the applicant was 'pleading' mental health issues in the Family Court and that he had unsuccessfully applied for the Family Court proceedings to proceed on an uncontested basis.
The respondent proposed that an administrator be appointed for the applicant to conduct the Family Court proceedings on her behalf.
In the Tribunal proceedings, the respondent filed selected letters between his solicitor and the solicitor for the applicant from September and October 2012, and letters from early October 2012 by the solicitor for the applicant to her psychologist and psychiatrist.
The respondent also filed a copy of an affidavit filed by the applicant in the Family Court in October 2012 in which reference is made to her mental and physical health (October affidavit).
A directions hearing was held on 26 November 2012. By that time the Tribunal had received the following documents in addition to the application made by the respondent:
•A letter from March 2011 to the respondent from his accountants setting out his expected income tax liabilities for 2010 and 2011.
•A letter from April 2011 from a general practitioner, practising solely in psychiatry and psychotherapy, commenting on the treatment of the applicant's mental health.
•A report from the same general practitioner to the Tribunal dated 22 November 2012 in which it is stated that the applicant suffers from anxiety and depression which is currently under control. The general practitioner states that the applicant's 'general cognitive capacity is not impaired but may alter when depression [is] not under control. This, however, is not to a point of making meaningful decisions. She is very good at the current time'. The general practitioner had last seen the applicant on 22 November 2012.
•A report from the applicant's treating psychiatrist to the Tribunal dated 20 November 2012 stating that she suffers from Attention Deficit Hyperactivity Disorder and that the symptoms were 'very well controlled on medication' as at the last consultation on 5 October 2011.
The applicant was legally represented in the Tribunal proceedings. The submission of the legal representative was that the respondent was 'forum shopping' in his attempts to deal with the Family Court proceedings and questioned why the respondent had not applied for a case guardian in the Family Court if he held the view that the applicant was not capable of conducting those proceedings in her own right. The legal representative foreshadowed an application for costs on the basis of the apparent paucity of evidence provided by the respondent to support his contention that the applicant was in need of an administrator.
At the directions hearing held on 26 November 2012, the respondent was directed to file with the Tribunal a written submission setting out the evidence upon which he intended to rely, to show that the applicant was unable to instruct her legal representative in the Family Court proceedings and that an administration order should be made for her.
In a written submission dated 10 December 2012, the respondent stated that the evidence available to the Tribunal included an admission by the applicant herself in the October affidavit that she was not able to participate in the Family Court proceedings because of medical issues, and that she admitted she was prescribed 'strong medication'.
The respondent stated that he had provided the Tribunal with correspondence between the respective solicitors for himself and the applicant, questioning whether the applicant was fit to instruct her legal representative. In accepting the position as it was in the directions hearing, that the applicant was then instructing her legal representative, the respondent stated that the legal representative 'gave no indication how he had arrived at this changed opinion [that the applicant was fit to instruct] and what expertise he possessed to make such determination'.
The respondent stated that in the very first appearance in the Family Court (he did not say when this took place), the applicant had submitted that she was under a medical impairment and requested an adjournment. Her solicitor at the time (not her current legal representative) questioned her ability to instruct.
The respondent submitted that the applicant's 'non-participation' in the Family Court proceedings had been at significant financial and personal cost to both of them. He stated that 'none of the lawyers who have dealt with the case have found her [the applicant] behaviour rational and in no way likely to lead to any positive outcome by either party'.
At the final hearing of the application for an administration order held on 1 February 2013, the respondent was unable to add to his earlier evidence and submissions.
The legal representative for the applicant submitted that the evidence before the Tribunal did not support the making of an administration order. He said he continued to act on the instructions of the applicant, both at the Tribunal and before the Family Court.
The legal representative for the applicant expressed a concern at the use by the respondent of the October affidavit. He said that there is an accepted practice in the family law jurisdiction that materials filed with the Family Court are not to be used in other forums.
On 1 February 2013 I dismissed the application for an administration order. Oral reasons were given at the time, but essentially I was not satisfied that on the evidence before the Tribunal, the presumption of capacity had been displaced (s 4(2)(b); s 64(1) of the GA Act).

The application for costs

The applicant seeks an order from the Tribunal that the respondent pay her costs of the Tribunal proceedings. It is submitted that the respondent was put on notice at the directions hearing held on 26 November 2013, that he had insufficient evidence to support his application for an administration order for the applicant, but that he was subsequently unable to provide any further evidence in addition to that already before the Tribunal at that time.
As stated earlier in these reasons, the applicant submits that the appropriate course of action for the respondent was to seek the appointment of a case guardian in the Family Court, and that his application for an administration order was no more than 'forum shopping'.
The applicant is claiming $1,500 which she says is less than the legal costs charged by her legal representative in the Tribunal proceedings.
The respondent submits that, as he was not represented at the Tribunal proceedings, it was not necessary for the applicant to be represented. That being the case, he submits that costs should not be awarded.

The relevant legislation

The application for costs in this matter is governed by s 87 of the SAT Act which reads:
87. Costs of parties and others
(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.
(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.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal’s review jurisdiction, the Tribunal is to have regard to
(a)whether the party (in bringing or conducting the proceeding before the decisionmaker in which the decision under review was made) genuinely attempted to enable and assist the decisionmaker to make a decision on its merits;
(b)whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6)The Tribunal may order that the representative of a party, rather than the party, in the representative’s own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.

The decision of the Tribunal

Section 87(1) of the SAT Act makes it clear that the starting proposition in the Tribunal is that parties bear their own costs in proceedings. However, s 87(2) of the SAT Act gives the Tribunal discretion to award costs against a party.
The relevant principles on how this discretion might be exercised are set out in the Guide to Proceedings in the Western Australian State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012) by DR Parry and B De Villiers at pages 190 193. The indication is that costs will only be awarded in 'special circumstances' (page 190), although s 87 does not identify the factors to be taken into account in the exercise of the Tribunal's discretion under s 87(2).
The mandatory considerations set out in s 87(4) of the SAT Act are not relevant in this case as they apply in the Tribunal's review jurisdiction. The application for an administration order comes within the Tribunal's original jurisdiction (s 15 of the SAT Act).
The applicable general principles in relation to costs can be summarised as follows:
… If a party has conducted itself in such away 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, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful. …
Thus the Tribunal's discretion to award costs extends to ordering the payment of costs incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings. Considering the primary position of the Tribunal as a no costs jurisdiction, it is not sufficient merely to identify that a party may have conducted itself in a different manner and thereby reduced costs incurred; it will usually be necessary to show that the conduct of the party was unreasonable and unfairly caused the increased costs.
(see: Medical Board of Western Australia and Aung Tin Kyi [2009] WASAT 22, at [73 - 74] (Kyi)).
It is the case that the Tribunal appoints administrators under the GA Act who from time to time will be required to deal with property settlement matters in the Family Court. An administrator can deal with a property settlement either under a plenary order or a limited order by being given that particular function.
The application for an administration order in this matter was, in my view, exploratory at best, but that is not an unusual occurrence in the protective jurisdiction encompassed by the GA Act. People should not be dissuaded from making an application under the threat of a costs order if the application does not ultimately lead to protective orders being made.
It is the role of the Tribunal to ultimately determine what is in the best interests of the person and whether the presumption of capacity has been displaced and orders needed (s 4 of the GA Act).
However the latitude available to applicants under the Tribunal's GA Act jurisdiction has its limits, as indicated in Kyi.
The applicant has some history of mental health concerns. Even if I accept that the respondent had a genuine belief that the perceived lack of progress in the Family Court was as a consequence of those mental health concerns, it should have been abundantly clear to him by the time of the directions hearing on 26 November 2012, that the medical evidence then before the Tribunal could not, on its own, rebut the presumption of capacity.
It is my view that the respondent knew at the time of the directions hearing, when he decided to continue with his application for an administration order, that he would not be able to provide any further capacity evidence that would seriously contest the medical assessments before the Tribunal.
It was at that point that the respondent should have known that there was no prospect that an administration order would be made on the evidence then available, and I find that it was unreasonable for him to maintain the proceedings.
I accept this caused the applicant unnecessary costs. In deciding this way I necessarily further find that it was reasonable for the applicant to be legally represented in the Tribunal proceedings because of the potential fundamental restriction on her decisionmaking rights that the application for an administration order contemplated.
For the reasons set out above, costs should be awarded in this case.
I set the costs at $1,000 to reflect the unnecessary continuation of the Tribunal proceedings.

Order

1.The respondent pays to the applicant the sum of $1,000 by way of costs in the matter GAA 3889 of 2012.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER