BC and NR

[2016] WASAT 67

BC and NR [2016] WASAT 67

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 67
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3143/2015	Heard:	8 SEPTEMBER AND 5 NOVEMBER 2015
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	1/06/16
No of pages:	16	Judgment Part:	1 of 1
Result:	Guardianship and administration applications dismissed
Category:	B
PDF Version

Parties:	BC NR
Catchwords:	Guardianship and administration ­ Capacity ­ Mental disability ­ Gifting of property ­ Vulnerability to influence ­ Proposed represented person changed her mind as a consequence of accepting the advice of her son rather than because of an incapacity which rendered her incapable of making certain decisions ­ Proposed represented person's children in conflict ­ Presumption of capacity not displaced ­ Application for costs dismissed
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4(3)(d), s 64(1)(a), s 97(1)(b)(iii) State Administrative Tribunal Act 2004 (WA), s 32(7)(a), s 87, s 87(1) State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 41(2), r 42
Case References:	Barnett v Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50 GC and PC [2014] WASAT 10 PHQ and LPQ [2015] WASAT 5 PJC and RJC [2008] WASAT 224 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 30 SM [2015] WASAT 132 The Public Trustee (WA) -v- Brumar Nominees Pty Ltd [2012] WASC 161
Summary	NR is an 88­year­old woman. She has two children, a son, DR, and a daughter, BC.,BC made applications for guardianship and administration orders in respect to NR pursuant to the Guardianship and Administration Act 1990 (WA).,The main issue raised by BC in the application for an administration order concerned a transaction in late 2014 where NR gifted a strata property to DR and ultimately to an entity controlled by him.,With the assistance of BC, NR took legal action to recover the strata property but subsequently changed her mind and withdrew the action. ,The concerns raised in the guardianship application centred on a lack of contact BC said she had with NR, who continued to live in the strata property, and, in both applications, on the alleged intimidation of NR by DR.,The evidence was that NR had developed structural changes in her brain caused by longstanding hypertension. These structural changes were the cause of a slowing of some of NR's cognitive processes. ,The Tribunal was satisfied that the changes in NR's brain and their effects were sufficient to warrant a finding of mental disability. ,The Tribunal was, however, not satisfied to the required standard of proof that, by reason of the mental disability, NR was unable to make reasonable judgments about all or any part of her estate.,The fact that NR subsequently changed her mind about the strata property action might have been cause for concern as to an inconsistency in her decision­making but, in the Tribunal's view, this was more likely than not a consequence of the way NR ultimately related to and took advice from DR (whether, objectively speaking, in her best interests or not), rather than evidence of an incapacity which rendered her incapable of making certain decisions.,The Tribunal found that an enduring theme in the evidence concerned the relationships NR had over time with her children, DR and BC, and the way in which she traversed those relationships in the context of the conflict between the children, her status as a parent, and in meeting her own needs for accommodation and security.,For all of these reasons, the Tribunal decided that the presumption of capacity was not displaced when considering the application for an administration order.,The application for an administration order was dismissed.,For the same reasons, the Tribunal decided to dismiss the application for a guardianship order. In any case, the applicant was seeking a very limited order in relation to NR's daily activities and there was nothing in the evidence to suggest such a need was a live issue in NR's circumstances.,NR sought an order for costs against BC pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA). The costs sought amounted to $1,188.,The application for costs was dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : BC and NR [2016] WASAT 67 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 8 SEPTEMBER AND 5 NOVEMBER 2015 DELIVERED : 1 JUNE 2016 FILE NO/S : GAA 3143 of 2015

GAA 3145 of 2015

BETWEEN : BC

Applicant

AND

NR
Represented Person

Catchwords:

Guardianship and administration ­ Capacity ­ Mental disability ­ Gifting of property ­ Vulnerability to influence ­ Proposed represented person changed her mind as a consequence of accepting the advice of her sonrather than because of an incapacity which rendered her incapable of making certain decisions ­ Proposed represented person's children in conflict ­ Presumption of capacity not displaced ­ Application for costs dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(3)(d), s 64(1)(a), s 97(1)(b)(iii)

State Administrative Tribunal Act 2004 (WA), s 32(7)(a), s 87, s 87(1)
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 41(2), r 42

Result:

Guardianship and administration applications dismissed

Summary of Tribunal's decision:

NR is an 88­year­old woman. She has two children, a son, DR, and a daughter, BC.

BC made applications for guardianship and administration orders in respect to NR pursuant to the Guardianship and Administration Act 1990 (WA).
The main issue raised by BC in the application for an administration order concerned a transaction in late 2014 where NR gifted a strata property to DR and ultimately to an entity controlled by him.
With the assistance of BC, NR took legal action to recover the strata property but subsequently changed her mind and withdrew the action.
The concerns raised in the guardianship application centred on a lack of contact BC said she had with NR, who continued to live in the strata property, and, in both applications, on the alleged intimidation of NR by DR.
The evidence was that NR had developed structural changes in her brain caused by longstanding hypertension. These structural changes were the cause of a slowing of some of NR's cognitive processes.
The Tribunal was satisfied that the changes in NR's brain and their effects were sufficient to warrant a finding of mental disability.
The Tribunal was, however, not satisfied to the required standard of proof that, by reason of the mental disability, NR was unable to make reasonable judgments about all or any part of her estate.
The fact that NR subsequently changed her mind about the strata property action might have been cause for concern as to an inconsistency in her decision­making but, in the Tribunal's view, this was more likely than not a consequence of the way NR ultimately related to and took advice from DR (whether, objectively speaking, in her best interests or not), rather than evidence of an incapacity which rendered her incapable of making certain decisions.
The Tribunal found that an enduring theme in the evidence concerned the relationships NR had over time with her children, DR and BC, and the way in which she traversed those relationships in the context of the conflict between the children, her status as a parent, and in meeting her own needs for accommodation and security.
For all of these reasons, the Tribunal decided that the presumption of capacity was not displaced when considering the application for an administration order.
The application for an administration order was dismissed.
For the same reasons, the Tribunal decided to dismiss the application for a guardianship order. In any case, the applicant was seeking a very limited order in relation to NR's daily activities and there was nothing in the evidence to suggest such a need was a live issue in NR's circumstances.
NR sought an order for costs against BC pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA). The costs sought amounted to $1,188.
The application for costs was dismissed.

Category: B

Representation:

Counsel:

Applicant : Mr T Keen
Represented Person : Mr G Cridland

Solicitors:

Applicant : Carlo Primerano & Associates
Represented Person : GG Legal

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

Barnett v Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50
GC and PC [2014] WASAT 10
PHQ and LPQ [2015] WASAT 5
PJC and RJC [2008] WASAT 224
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 30
SM [2015] WASAT 132
The Public Trustee (WA) -v- Brumar Nominees Pty Ltd [2012] WASC 161

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 NR is an 88-year-old woman. She has two children - a son, DR, and a daughter, BC.

2 BC made applications for guardianship and administration orders in respect to NR pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).

3 The applications were referred to the Public Advocate for investigation and report to the Tribunal pursuant to s 97(1)(b)(iii) of the GA Act.

4 The applications were heard on 8 September and 5 November 2015, and were dismissed.

5 NR was legally represented, as was BC.

6 NR seeks an order for costs against BC pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

7 The costs sought amount to $1,188.

The guardianship and administration applications

8 The main issue raised by BC in the application for an administration order concerned a transaction in late 2014 where NR gifted property, a strata unit (strata property), to DR and ultimately to an entity controlled by him.

9 The concerns raised in the guardianship application centred on a lack of contact BC said she had with NR who continued to live in the strata property, and, in both applications, on the alleged intimidation of NR by DR.

10 BC stated that in February 2015, she was in contact with NR and was told by NR that towards the end of 2014, DR and his wife had approached her with a proposal that she gift the strata unit to them to prevent the government from taking it. NR is reported to have said that she resisted at first but then relented.

11 BC stated that she and NR saw a lawyer who confirmed that the strata property had been transferred to a private company (under the control of DR) and had been valued at $590,000 for stamp duty purposes.

12 BC stated that NR was surprised that she did not have the proceeds of the disposal of the strata property.

13 BC stated that NR decided to take legal action to recover the strata property. The lawyer had consulted with NR alone, and then with NR and BC together.

14 BC said that she agreed to borrow $20,000 to pay for NR's legal fees and that NR had agreed to repay the loan.

15 BC stated that it was decided that NR would make an Enduring Power of Attorney (EPA) appointing her as sole attorney, which NR did on 23 March 2015. There was a belief that another EPA existed in favour of DR, in which case NR completed a revocation of an EPA. In fact, it appears that an earlier EPA was not in place but, rather, an enduring power of guardianship (EPG) made on 30 August 2013 appointing DR.

16 In April 2015, NR issued a writ of summons in the Supreme Court of Western Australia alleging that the transfer of the strata property to the private company was procured by DR by the exercise of undue influence and/or duress by DR or by his unconscionable conduct.

17 By way of a letter from NR's lawyer to DR dated 5 March 2015, the lawyer stated that detailed instructions had been provided by NR that, unbeknownst to her, the strata property had been transferred out of her name and that this transaction should be reversed.

18 BC said that she subsequently became aware that DR allegedly had NR sign a letter terminating the services of her lawyer on the purported pretext that DR would go to prison if the legal action continued.

19 BC stated that on 22 May 2015, she was contacted by NR and told that her help was no longer needed and that NR would repay the loan that was obtained for her legal fees. NR had recently been admitted to hospital because of acute shoulder pain.

20 BC stated that in June 2015, she received a letter purportedly written by NR alleging that she owed her $64,000 she had borrowed from NR and her late father in the 1990s. BC was also alleged to be holding cash and jewels for NR.

21 BC said that in late June 2015, contact ceased with NR, despite attempts to telephone her.

22 In a statement accompanying her applications, BC submitted:

My mother will never publicly acknowledge any wrongdoing by [DR] and will openly support his actions even though they may not be her wishes. Mum has an extreme sense of loyalty towards her son as all that generation of Indians to male children. Mum also fears [DR]'s anger and will do anything for a quiet life regardless of the consequences.

23 In a submission by NR (but which DR admitted was put together by him, he said, on NR's instructions) filed with the Tribunal at the hearing on 8 September 2015, NR relevantly stated that the strata property was transferred to DR to fulfil the last desire and wish of her late husband, and that she was forcibly taken by BC to the lawyer who had acted without instructions. NR stated in her submission that she had instructed the lawyer to discontinue the Supreme Court action.

24 A senior investigator with the Public Advocate interviewed NR on 2 September 2015. In a report dated 7 September 2015, the senior investigator summarised NR's views as expressed in the interview.

• There was no need for anyone to worry about her because she was doing what she wanted with her life.

• She was supported by DR and he made sure she had everything she needed.

• She had not seen her daughter since her discharge from hospital.

• She was heavily sedated when in hospital and was not herself. It was unfair for applications to have been made for her on the basis of how she presented in hospital.

• She spent long hours in DR's factory, which she did not object to. She answered the telephone and did the filing. DR would take her home at 10 pm or 11 pm and made sure she was safe in bed with her sleep apnoea machine in place.

• She and her late husband had financially assisted BC all her life when she needed money.

• Before her husband died, he had made it very clear that he wished for the strata property to remain in the family name, and told her to ensure that DR received it. She therefore had no regrets in gifting the strata property to DR.

• DR had never been violent towards her.

• She was able to make decisions about her health and accommodation needs.

• She had a physiotherapist attend the factory twice a week for exercise.

• She attended a community group every Wednesday at a local church.

25 When asked by the senior investigator whether she wished to see BC, NR was reported to have become visibly distressed and said that she did not know why this situation (no contact with BC) had come about.

26 The senior investigator stated that NR had been able to give a clear view about her situation. She nominated DR to be her decision-maker if she could no longer do so herself.

27 The Tribunal had the benefit of evidence from two specialist medical practitioners - Dr H, consultant psychiatrist who had assessed NR whilst she was a hospital inpatient on 29 May 2015 and clinical professor, Dr B, neurologist who had attended to NR since 2010.

28 Both Dr H and Dr B gave oral evidence, but not together. Dr H attended the hearing on 8 September 2015 and Dr B attended the hearing on 5 November 2015. Dr B had been provided with the report of Dr H.

29 Dr H said that he had been asked by NR's general practitioner to assess her capacity to make decisions about her place of residence. NR was reported to have poor mobility, and it was noted that she had been approved for high level care but was determined to remain living in her own home.

30 Dr H said that NR seemed to have a fair grasp of both her current assets and financial position. NR told him that she had 'foolishly' transferred ownership of the strata property to DR and she expected him to give it back. She explained that she wanted to make a will to ensure her estate was divided equally between DR and BC.

31 Dr H stated that there was no evidence of thought disorder, delusions or hallucinations. NR was alert and scored 18/30 on a Mini Mental State Examination (MMSE), with sub-scores of 7/10 for orientation, 0/5 for attention/concentration and 1/3 for recall.

32 Dr H assessed NR as performing poorly on additional bedside testing of executive function. Dr H said that executive functioning encompasses a range of abstract processes, including mathematical calculation and comprehending complex information, and weighing up the risk and benefits of complex situations.

33 Dr H opined that although he would not like to commit to a diagnosis of dementia without further testing, 'syndromally it sounded as though she had a dementia' (T:11; 08.09.15).

34 Dr H assessed NR as demonstrating the capacity to make decisions about her place of residence. He found her to be aware of the options available to her, and able to communicate a clear view on the matter. He did not think that NR's view had been subject to misinformation or coercion.

35 Dr H assessed NR as requiring support more generally to make complex decisions because of 'clear evidence' of cognitive impairment significantly affecting executive functions. He believed she had a propensity to make inadequately informed decisions based on trust and faith and, as a consequence, was at risk of manipulation and exploitation. Dr H gained the impression that NR was keen to avoid stoking conflict within the family.

36 Dr B stated that he first attended to NR in 2010 regarding her mobility issues. An MRI was performed which revealed 'fairly severe periventricular ischemic changes related to hypertension' (letter to general practitioner dated 22 June 2010).

37 Dr B stated that these changes in the frontal lobe of the brain concerned areas important for determination of gait.

38 Dr B next saw NR in 2013 and, in a letter to her general practitioner dated 23 August 2013, he assessed her, on a MMSE score of 28/30, as being competent to make decisions.

39 In October 2014, Dr B advised NR's general practitioner that although her MMSE score had reduced to 26/30, and noting that she looked a little frailer, she was doing extraordinarily well and no further investigations were indicated. Dr B assessed NR as having ongoing capacity to make decisions about her personal and financial affairs.

40 In June 2015, Dr B noted that NR had declined both physically and cognitively on a MMSE score of 25/30 but that NR remained extremely consistent over the past five years in her wish that DR manage her personal and financial affairs.

41 In October 2015, Dr B advised NR's general practitioner that she had scored 27/30 on a MMSE and that, whilst she struggled with mathematics, she was able to rapidly spell the word 'world' backwards, noting that NR had scored 0/5 on that item of testing in the assessment undertaken in hospital in May 2015. NR was reported by Dr B to miss two of three items at three minute recall and had some difficulty with the constructional task. NR reiterated her wish that DR act as her attorney under an EPA and said that BC was acting like an 'ogre'.

42 In a report to the Tribunal dated 16 October 2016, Dr B stated:

In summary she is an elderly lady who has some mild cognitive changes probably related to hypertensive small vessel disease. In my opinion she is notdemented. She will require some assistance with complex financial decisions but she has been extremely consistent during the five years that I have known her that she wishes her son to manage her affairs. She grasps the concept of vulnerability involved with the EPA and overall I am prepared to confirm that she is competent to make decisions.

Dr B further characterised the mild cognitive changes experienced by NR as a slowing of her very high level (frontal lobe) executive functioning and the slowing of her ability to balance multiple judgments.

43 As to the difference in MMSE scores between the test undertaken whilst NR was in hospital in May 2015 (and upon which Dr H relied) and the test undertaken in October 2015, Dr B opined that a hospital environment is often difficult for older people with slight vulnerabilities. Cognitive function may be affected by dislocation from a person's regular environment, sleep deprivation and sedating medications.

44 Dr B assessed NR as requiring assistance with very complex financial decisions and, whilst she may be potentially vulnerable, he was struck by her consistency.

45 When asked what might constitute a complex decision, Dr B stated 'filling out a tax return or deciding to which investment account to use'.

46 Counsel for BC submitted that other available evidence supported the contention that NR had not been consistent in her decision-making and actions, including: a tape recorded message from the beginning of 2015 in which NR expressed distress about the strata property; the Supreme Court action she had commenced against DR; and her presentation at the Court in the application for a violence restraining order against BC in September 2015.

47 Counsel for BC submitted that an administrator should be appointed for NR on the basis that she required assistance with complex decisions, and suggested the administrator should have authority to deal with NR's taxation returns and any transaction in excess of $5,000.

48 In regard to her daily functioning, the Tribunal had the benefit of an assessment carried out by Home and Community Care services on 29 April 2015 which relevantly stated that NR maintained her own medication regime; was able to determine her support needs and make the necessary arrangements to access that support; and was able to receive her meals and correctly keep and reheat meals as needed.

49 As regards guardianship, counsel for BC accepted that NR had the capacity to make her medical treatment decisions and submitted that a guardian should be appointed to:

Make sure she has regular activities outside her home and away from the children of more of an independent social function.

(T:37; 06.11.15)

50 BC sought revocation of existing EPGs and EPAs.

51 Counsel for NR submitted that there was no diagnosis or other evidence of a mental disability as defined in the GA Act and, consequently, the question of the need of an administrator did not arise. Counsel for NR submitted:

I would say that [NR's mild cognitive change] is simply a slow, degenerative disease … the normal impact of aging, which is short of dementia.

(T:43; 06.11.15)

52 As to what may constitute a complex financial decision, counsel for NR contended that even highly intelligent and capable people might have difficulty completing a taxation return (the example used by Dr B). He submitted that a very large part of the community would require assistance with more complex matters.

53 NR sought the dismissal of the guardianship and administration applications.

The Tribunal's decision in the guardianship and administration applications

54 To consider whether NR was in need of an administrator of her estate, the Tribunal was required to find that the statutory presumption of capacity had been rebutted by the evidence and that, by reason of a mental disability, NR was unable to make reasonable judgments in respect to matters relating to all or any part of her estate: s 4(3)(d) and s 64(1)(a) of the GA Act.

55 'Mental disability' is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.

56 In S v State Administrative Tribunal of Western Australia[No 2] [2012] WASC 30, Heenan J discussed the standard of proof required in the making of guardianship and administration orders. He said at [105]:

… I am satisfied that on any reasonable view the evidence before the single member, equivocal and untested as it was, did not justify any finding that a guardian should be appointed or that an administrator should be appointed in view of the seriousness of those allegations and the need for satisfactory proof to be established: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, 361-361. The more so is this the case when it is necessary for the evidence to displace the presumption of capacity contained in s 4(3) of the G & A Act. The necessity for the contrary to be proved to the satisfaction of the SAT (s 4(3)) does not diminish the standard of proof or permit some standard less than the Briginshaw standard to be adopted and applied[.]

57 In GC and PC [2014] WASAT 10 at [36], the Full Tribunal put it this way:

… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the Act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity. (emphasis added)

58 The evidence of Dr B was preferred for the following reasons. Dr B had attended to NR over a number of years and was able to conduct assessments longitudinally, providing a nuanced view of her cognitive strengths and weaknesses.

59 The assessment of Dr H from May 2015 was encumbered by the hospital setting, NR's status as an acute patient and the use of a MMSE test result of 18/30 which the Tribunal accepted was not a true reflection of NR's capacity, at least in the way in which the MMSE was used in the assessment process. The fact that NR scored 27/30 when the MMSE was conducted by Dr B in October 2015, and which scores had been relatively consistent since 2013, is evidence that when NR was in hospital, she was far from how she normally presented.

60 Counsel for NR submitted that the medical evidence did not establish the existence of a mental disability for the purposes of the GA Act and therefore the question of any decision-making incapacity did not arise.

61 The Tribunal was not persuaded to that view.

62 The evidence of Dr B was that NR had developed structural changes in her brain caused by longstanding hypertension. These structural changes were the cause of a slowing of some of NR's cognitive processes.

63 The Tribunal was satisfied that the changes in the brain and their effects were sufficient to warrant a finding of mental disability: see, for example, SM [2015] WASAT 132, particularly at [44].

64 The Tribunal, however, was not satisfied to the required standard of proof that, by reason of the mental disability, NR was unable to make reasonable judgments about all or any part of her estate.

65 The main concern of the applicant was the gifting of the strata property to DR.

66 The Tribunal accepted that NR mostly listened to the advice given to her by DR. It might be, as suggested by BC, that she did so because of a cultural imperative of an 'extreme sense of loyalty' to her son, or for that and other reasons.

67 The Tribunal was satisfied that, in the way that Dr B assessed NR as needing assistance with complex financial decisions, she largely sought the assistance of DR, and this was likely the case when the strata property was transferred.

68 At some point early in 2015, for reasons that are not fully clear from the evidence (although NR told Dr H that she had made a foolish decision and wanted her estate divided equally between DR and BC on her death), NR decided that she wanted the transfer of the strata property reversed.

69 NR sought the assistance of BC in this task.

70 The documents before the Tribunal from NR's legal representative for the Supreme Court action did not give any sense of a concern about NR's capacity to initiate the action. Mention was made of NR giving 'detailed instructions', and the writ did not attribute any disability to NR.

71 The fact that NR subsequently changed her mind about the action might have been cause for concern as to an inconsistency in her decision-making (see the evidence of Dr B), but in the Tribunal's view, this was more likely than not a consequence of the way NR ultimately related to and took advice from DR (whether, objectively speaking, in her best interests or not), rather than evidence of an incapacity which rendered her incapable of making certain decisions: The Public Trustee (WA) -v- Brumar Nominees Pty Ltd [2012] WASC 161 at [16]).

72 The Tribunal also noted in respect to the notion of complex decisions that, despite the limitations of his assessment, Dr H (not disputed by Dr B) explicitly assessed NR as having the capacity to decide her place of residence, and BC accepted that NR could continue to make her medical treatment decisions. The view of the Tribunal was that such decision-making could in some instances involve high level decision-making. The Tribunal also accepted the submission of NR that the example of a complex decision given by Dr B - that of completing a taxation return - would not be confined to people with a cognitive impairment, but could also apply to capable people.

73 The Tribunal found that an enduring theme in the evidence concerned the relationships NR had over time with her children, DR and BC, and the way in which she traversed those relationships in the context of the conflict between the children, her status as a parent, and in meeting her own needs for accommodation and security.

74 For all of these reasons, the Tribunal decided that the presumption of capacity was not displaced when considering the application for an administration order.

75 The application for an administration order was dismissed.

76 For the same reasons, the Tribunal decided to dismiss the application for a guardianship order. In any case, the applicant was seeking a very limited order in regards to NR's daily activities and there was nothing in the evidence to suggest such a need was a live issue in NR's circumstances.

The application for costs

77 NR, through her counsel, has applied for costs against BC pursuant to s 87(1) of the SAT Act.

78 Counsel submitted as follows:

… This is the second misconceived application that - and a letter was sent to [BC] suggesting that it should be dismissed that the costs since that letter to the applicant, which was earlier this week - the costs since that time should be paid for and borne by the applicant ...

We don't seek all of our costs in this matter, but just the ones in the last few days, noting that there were submissions that came – [a] lengthy submission … that came in yesterday that we had to read and consider and by way of costs we would simply seek the time at this hearing and two hours to read and consider the submissions that were filed yesterday.

(T:46 & 47; 06.11.15)

79 The letter referred to by counsel for NR was sent to the legal representative of BC on 3 November 2015 and states:

We confirm our client has requested this office to make an offer to settlement [sic] the above-mentioned proceedings on the basis that your client dismiss the application without hearing so as to avoid protracted and expensive legal proceedings scheduled for 6 November 2015.

We confirm that the above-mentioned offer is open until the close of business on 4 November 2015.

The response of BC is that she opposes the application for costs.

80 BC refers to the wording of s 87(1) of the SAT Act to the effect that the staring position is that parties bear their own costs in a proceeding of the Tribunal.

81 BC further refers to State Administrative Tribunal Rules 2004 (WA) (SAT Rules) ­ in particular, r 40 and r 41 - which deal with settlement offers and acceptance of settlement offers, and r 42 which deals with costs if a settlement offer is rejected.

82 BC submits that NR has not complied with r 41(2) of the SAT Rules which she states specifies that an offer must be open for acceptance for a minimum of 14 days.

83 The general thrust of BC's submission (aside from the submission in respect to r 41(2) of the SAT Rules) is that her applications for guardianship and administration orders were not vexatious; that at the time of the applications NR had scored very poorly on MMSE tests whilst in hospital; and that NR had left a troubling and rambling message on her answering machine.

84 BC says that she brought the applications before the Tribunal out of concern for NR and on the advice of medical professionals who had treated NR in hospital.

85 The general position of the Tribunal regarding s 87 of the SAT Act is summarised in Barnett v Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50 at [15]:

… the discretion conferred by s 87(2) of the SAT Act is informed by the overarching obligation to exercise the discretion judicially and where it is fair and reasonable in all of the circumstances including a consideration of the nature of the jurisdiction exercised by the Tribunal 'but starting from the position that no order for costs will be made' (citing Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [9]).

86 The GA Act is a protective jurisdiction (see Heenan J in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44].

87 The way in which costs are considered by the Tribunal in this protective jurisdiction is summarised in PHQ and LPQ [2015] WASAT 5 at [32] and [33] citing PJC and RJC [2008] WASAT 224 at [57] - [59]:

Effectively therefore, in applications brought under the GA Act, there is a need for applicants to proceed cautiously and to be seen to be making the application with a genuine concern held in good faith for the mental health wellbeing of the proposed represented person. In circumstances where the applicant is made aware of material in clear and unequivocal terms, which reasonably leads to the conclusion that the application is unlikely to succeed, then the expectation of the Tribunal is that the application ought to be withdrawn, unless contrary, probative medical evidence is able to be produced.

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, unnecessarily prolonging an 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 proceedings.

88 The GA Act is not a consent jurisdiction. The reference to an offer and settlement of the matter in both the submissions of NR and BC is misconceived.

89 I accept that BC held a genuine belief that NR was in need of protective orders and that she was responding to a concern raised by NR herself.

90 At the time of the hearing on 5 November 2015, the Tribunal had not yet heard from Dr B, whose opinion of the capacity of NR was different to that of Dr H, who had given oral evidence at the hearing on 8 September 2015.

91 It was both necessary and reasonable that Dr B's opinion be tested at hearing. It was not the case that the question of NR's capacity was so clear that BC should not have been given the opportunity to cross-examine Dr B on the substance of his opinion.

92 It was also of benefit to the Tribunal that all relevant material was before it to enable a determination of all the relevant facts in the proceeding: s 32(7)(a) of the SAT Act.

93 For these reasons, the Tribunal has decided to dismiss the application for costs.

Orders

94 The Tribunal makes the following orders:

1. The applications for guardianship and administration orders are dismissed.

2. The application for costs is dismissed.

I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, SENIOR MEMBER