BFO & ORS and KPW
[2014] WASAT 68
•10 JUNE 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BFO & ORS and KPW [2014] WASAT 68
MEMBER: MS L EDDY (MEMBER)
HEARD: 10 MARCH 2014
DELIVERED : 10 JUNE 2014
FILE NO/S: GAA 4318 of 2013
GAA 4319 of 2013
GAA 4320 of 2013
BETWEEN: BFO, BJO, GMO, CMF, AKE AND JJO
Applicants
AND
KPW
Respondent
Catchwords:
Guardianship and administration Application for legal costs from represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) or alternatively from the applicants under s 87(2) of the State Administrative Tribunal Act 2004 (WA) Costs application in context of proceedings under s 109(1)(a), s 109(1)(b) and s 110N of the Guardianship and Administration Act 1990 (WA) Whether application is unreasonable or for an ulterior purpose Whether applicants had proper interest in making applications under s 109 of the Guardianship and Administration Act 1990 (WA)
Legislation:
Guardianship and Administration Act 1990 (WA), s 16, s 16(4), s 16(5), s 109, s 110N, s 110N(1)(a)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), Div 5 Pt 4
Result:
The application for costs unsuccessful
Summary of Tribunal's decision:
This is an application by the respondent for his costs of the proceedings to be paid out of the estate of the donor of an enduring power of attorney pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) or alternatively to be paid by the applicants, pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA). The proceedings before the Tribunal concerned applications by the siblings of the donor of an enduring power of attorney:
1)requiring the filing of records of accounts by the donee of an enduring power of attorney made by the donor dated 22 November 2012 pursuant to s 109(1)(a) of the Guardianship and Administration Act;
2)revoking or varying the terms of the same enduring power of attorney pursuant to s 109(1)(c) of the Guardianship and Administration Act; and
3)revoking an enduring power of guardianship made by the donor dated 1 August 2013 pursuant to s 110N(1)(a) of the Guardianship and Administration Act.
The respondent submitted that the applications under s 109(1) of the Guardianship and Administration Act were always 'doomed to fail' because there was nothing in the circumstances relied upon by the applicants that provided a proper interest within the meaning of s 109(1) of the Act so as to have foundation for making applications under that section. The respondent said that in this case the applicants had no sufficient basis for making and maintaining their applications under s 109(1) of the Guardianship and Administration Act because:
1)the applicants lacked knowledge of certain details relating to the donor's financial situation, but a 'mere lack of knowledge by the applicants' is insufficient basis to provide a proper interest so as to provide foundation for an order under s 109(1) of the Guardianship and Administration Act; and
2)the applicants also sought to obtain information about the donor's medical condition and his medical treatment, but provision of information about these personal matters is outside the scope of s 109(1) of the Guardianship and Administration Act.
The Tribunal accepted that the siblings have continuing personal relationships with the donor, that they are concerned for his welfare and, while they have no basis to suggest there has been any improper conduct by the donee, they wanted to assist the donor to understand his own financial position because of comments made to them by the donor. It also accepted that the applicants additionally wanted, in making their applications, to obtain medical information about the donor so that they could, as stated in their applications made pursuant to s 109(1)(a) and s 109(1)(c) of the Guardianship and Administration Act, 'discuss his medical condition with him and to assist him with obtaining proper medical treatment'. The Tribunal has no power under s 109(1) of the Guardianship and Administration Act to order a person to provide to the Tribunal, or to a party to the proceedings, medical information about the donee of an enduring power of attorney. The Tribunal accepted that an application commenced under s 109(1) of the Guardianship and Administration Act seeking to obtain this type of information under that provision would be inappropriate. However, one of the applications made by the applicants was an application for revocation of an enduring power of guardianship under s 110N(1)(a) of the Guardianship and Administration Act. The Tribunal accepted that that it would be a relevant factor in the ultimate determination of an application under s 110N of the Act that relatives in a close personal relationship with a person were not being given medical information about their loved one. Therefore the Tribunal was not satisfied that, just because the applicants wished to obtain medical information about the donor, that they necessarily had an ulterior purpose in commencing the applications under s 109(1) of the Guardianship and Administration Act.
The Tribunal was satisfied that the relationship of the applicants to the donor (being his siblings), and also their ongoing close personal relationships with him, together with their purpose of wanting to obtain information in order to assist the donor in circumstances where:
a)he had told one or more of the applicants that he did not know his financial situation; and
b)they did not know that he had been diagnosed with dementia with accompanying confusion and short term memory loss,
was sufficient to provide them with a 'proper interest' to make an application under s 109(1)(a) of the Guardianship and Administration Act.
Ultimately, in this case, because the applications were withdrawn before any hearing of the merits of the applications, the Tribunal was unable to determine whether or not the discretion to make orders under s 109(1)(a), s 109(1)(c) or s 110N of the Guardianship and Administration Act would have been exercised in the applicants' favour. However, the Tribunal was unable to find, based on the limited information available to it, that the applications were patently unmeritorious or were, as the respondent claimed, 'doomed to fail'.
In addition, the Tribunal was not satisfied that the applicants acted unreasonably or inappropriately in the proceedings or that there is any other reason why it ought to exercise the discretion to award costs under s 87(1) of the State Administrative Tribunal Act 2004 (WA). It therefore declined to do so.
Category: B
Representation:
Counsel:
Applicants: Mr J Eastoe
Respondent: Mr J Scovell
Solicitors:
Applicants: N/A
Respondent: Gadens Lawyers
Case(s) referred to in decision(s):
BJB and GB [2008] WASAT 307
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Clifford and Shire of Busselton [2007] WASAT 89 (S); (2007) SR (WA) 58
EW [2010] WASAT 91
GA and EA and GS [2013] WASAT 175
KS (2) [2008] WASAT 167
LC and JS [2007] WASAT 127
M [2008] WASAT 262 (S)
MO and JB [2008] WASAT 228
Re SS; Ex Parte RA [2008] WASAT 218
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
By applications lodged on 15 November 2013, BFO, BJO, GMO, CMF, AKE and JJO (the applicants) applied for orders:
1)requiring the filing of records of accounts by the donee of an enduring power of attorney made by KJO dated 22 November 2012 pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act);
2)revoking or varying the terms of the same enduring power of attorney pursuant to s 109(1)(c) of the GA Act; and
3)revoking an enduring power of guardianship made by KJO dated 1 August 2013 pursuant to s 110N(1)(a) of the GA Act.
The applicants are the brothers and sisters of KJO. The donee of both the enduring power of attorney (EPA) and the enduring power of guardianship made by KJO was his stepson KPW (the respondent).
KJO was at all relevant times a resident of a permanent residential facility and all but one of the applicants (who lives interstate) visited him regularly at the facility. It is stated in the applications that, based on discussions the applicants had with KJO, the applicants formed the view that KJO did not have any detailed understanding of his financial position nor of the 'arrangements struck [by KPW]' with the residential facility for the accommodation and care of KJM. It is further stated in the applications made under s 109 of the GA Act that the applicants wished to be in a position where they could have meaningful discussion with KJO in relation to these matters. The reasons given for making the application under s 110N of the GA Act were that the applicants:
… are concerned as to whether [KJO] is receiving proper medical treatment. They have no means of knowing what their brother's medical condition is because [KPW] refuses to provide them with copies of those records.
It was explained during one of the hearings that the concern about KJO's finances arose because of a comment by KJO to one or more of his siblings that he thought he could afford to stay at the residential facility only for a limited period of time before his money ran out. It was said that this caused the applicants to worry if something needed to be done to ensure sufficient finances were available for KPW's future care.
An initial directions hearing was held on 5 December 2014 and a second directions hearing on 20 January 2014. At the second directions hearing the matter was listed to a substantive hearing. By letter dated 27 January 2014 the applicants advised the Tribunal that agreement had been reached between the parties and that the applicants wished to withdraw their applications. The respondent conveyed to the Tribunal that he wished to make a costs application and therefore the question of whether the applicants should be given leave to withdraw the applications and the consideration of any costs application were listed for hearing on 10 March 2014.
On 28 February 2014 the respondent filed an application seeking his costs of the proceedings pursuant to s 16(4) of the GA Act, together with an affidavit in support of the application and an outline of submissions. The applicants filed submissions opposing the application for costs. At the hearing the respondent clarified that he was seeking costs pursuant to s 16(4) of the GA Act or, in the alternative, pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
After hearing counsel for the applicants and the respondent, the Tribunal granted leave to the applicants to withdraw their applications and reserved its decision on the costs application. These are the reasons for decision in relation to the respondent's application for costs.
Costs under s 16(4) of the GA Act
Relevantly, s 16 of the GA Act provides:
…
(4)The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
(5)Nothing in this section limits any other power of the State Administrative Tribunal under the State Administrative Tribunal Act 2004.
Section 16(4) must be read in light of s 87(1) of the SAT Act which provides the starting point that parties to proceedings before the Tribunal are to bear their own costs (LC and JS [2007] WASAT 127 at [35] (LC), confirmed in MO and JB [2008] WASAT 228 (MO) at [35] and in M [2008] WASAT 262 (S) (M) at [66]). This means that something more than merely acting in the person's best interests will be required before the Tribunal will order a party's costs to be paid by, or out of the estate of, the person whom the proceedings concern (M at [66]). The Tribunal has identified, in LC at [56], a useful, although non-exhaustive, list of circumstances that are likely to be relevant as to whether the Tribunal should exercise its discretion in favour of making a costs order under s 16(4) of the GA Act
•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;
•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;
•conflict between significant 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;
•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;
•the application is contentious and unique, for example, sterilisation; and
•the application raises a special point of law.
Costs under s 87 of the SAT Act
As can be seen from the terms of s 16(5) of the GA Act quoted above, the discretion to order costs under s 16 does not limit any other power of the Tribunal under the SAT Act. It is widely accepted in the Tribunal that this means that the discretion to award costs under Div 5 of Pt 4 of the SAT Act applies to proceedings under the GA Act (see, for example, G and L [2007] WASAT 232, M and MO).
Section 87 of the SAT Act provides 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.
…
These provisions, when read together, mean that the Tribunal is generally a 'cost neutral jurisdiction' (Clifford and Shire of Busselton [2007] WASAT 89 (S); (2007) SR (WA) 58 at [39]) and 'will need good reason to depart from the rule in s 87(1) of the SAT Act (M at [50]). Section 87 of the SAT Act does not specify what will provide a good reason to exercise the discretion to order costs. A general guide to when the discretion might be exercised is found in the following statement (although this is of course not an exhaustive statement of when costs might be ordered):
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.
(Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85])
Respondent's submissions
The respondent submits that the applications were always 'doomed to fail' because there was nothing in the circumstances relied upon by the applicants that provided a proper interest within the meaning of s 109(1) of the GA Act so as to have foundation for making applications under that section.
The respondent submits that the Tribunal:
… has adopted the position that costs are only awarded in circumstances where the applicants to proceedings had an ulterior purpose for commencing the proceedings and the proceedings were unreasonably maintained: see GA and EA and GS [2013] WASAT 175 at [43] and DB and MJB [2013] WASAT 73.
This statement is not strictly accurate. As indicated above, the Tribunal has, in a number of cases, provided a general guide as to when costs might be awarded under s 87(1) of the SAT Act, but that guide cannot be taken as an exhaustive statement. It is, however, correct to say that if an applicant has acted unreasonably in maintaining proceedings or had an ulterior purpose in commencing proceedings, these factors will tend to weigh strongly in favour of a costs order being made against the applicant.
In summary, the respondent says that in this case the applicants had no sufficient basis for making and maintaining their applications under s 109(1) of the GA Act because:
1)the applicants lacked knowledge of certain details relating to [KJO's] financial situation, but a 'mere lack of knowledge by the applicants' is insufficient basis to provide a proper interest so as to provide foundation for an order under s 109(1) of the GA Act; and
2)the applicants also sought to obtain information about KJO's medical condition and his medical treatment, but provision of information about these personal matters is outside the scope of s 109(1) of the GA Act.
Applicants' submissions
The applicants submit that their concern that KJO did not seem to have sufficient information about his own financial affairs was sufficient to found a proper interest within the meaning of s 109(1) of the GA Act. The applicants' do not accept that their applications were 'doomed to fail' as claimed by the respondent.
The applicants submit that they 'self-evidently have a proper interest in knowing that their brother is adequately and properly cared for, and, if concern for his finances exist, that they should be in a position to do something about it'. The applicants point to the requirement that notice of hearing must be given to the nearest relative in proceedings where a guardianship or administration order is sought as supporting their assertion that they, as KJO's nearest relatives, had a proper interest in seeking an order under s 109(1) of the GA Act.
Analysis
To the extent that the applicants' submissions might be taken to assert that the nearest relative of the donor of an EPA will, without anything else, have sufficient interest to ground a successful application under s 109(1) of the GA Act, I have some difficulty with it (see, for example, BJB and GB [2008] WASAT 307 at [58] where it was determined that:
Although the applicant, as a son of the donor, may in general have an interest in the financial management of his mother's estate, the Tribunal is not satisfied he has a proper interest in the matter and in particular the documents sought. (Tribunal's emphasis)
While the qualification intended by 'proper interest' should not be restrictively applied, it has been accepted by the Tribunal to require that the person has a real interest, not a frivolous or vexatious or merely prurient interest (EW [2010] WASAT 91 (EW) at [20] [27]). For the purposes of this matter, however, I need not determine this question as the applicants do not in fact rely merely on their relationship as siblings of KJO. They assert also, and I accept, that they have continuing personal relationships with KJO, that they are concerned for his welfare and, while they have no basis to suggest there has been any improper conduct by the donee, KPW, they wanted to assist KJO to understand his own financial position because of comments made by KJO to them.
I also accept, as asserted by the respondent, that the applicants additionally wanted, in making their applications, to obtain medical information about KJO so that they could, as stated in their applications made pursuant to s 109(1)(a) and s 109(1)(c) of the GA Act, 'discuss KJO's medical condition with him and to assist him with obtaining proper medical treatment'.
There is no power under s 109(1) of the GA Act for the Tribunal to order a person to provide, to the Tribunal or to a party to the proceedings, medical information about the donor of an EPA. However, one of the applications made by the applicants was an application for revocation of an enduring power of guardianship under s 110N(1)(a) of the GA Act. The drafting approach taken by the solicitor representing the applicants in the proceedings seems to have been to express all of the applicants' reasons for making all of the applications in identical form in the two applications made under s 109 of the GA Act, and then to refer to the reasons expressed in those documents as the statement of the reasons for the making of the application in the application made under s 110N of the GA Act. When taking into account the orders sought in the s 109 of the GA Act applications, it is clear that the applicants were not seeking an order for production of documents containing medical information in those applications. In my view, an application under s 110N of the GA Act could not, and should not, be used for the sole purpose of obtaining medical information about a person. However, I accept that it would be a relevant factor in the ultimate determination of an application under s 110N of the GA Act that relatives in a close personal relationship with a person were not being given medical information about their loved one.
As the applications were withdrawn before any final hearing on their merits, the only evidence I can rely upon to determine whether the applicants had an improper or ulterior purpose in commencing their applications is:
•the statement of the reasons for making the application in the application documents;
•the affidavit of CMG, a solicitor working in the legal firm that provided representation to KPW in these proceedings, sworn 28 February 2014, and its attachments; and
•the statements of fact made at the hearing of the costs application on 10 March 2014.
There were some statements of fact made at the two directions hearings in the proceedings, and I also take those into account, but given the procedural nature of that type of hearing I place less weight on those statements. Having regard to all of that evidence, I am not satisfied that there is sufficient basis for a finding that the applicants had an improper or ulterior purpose in making their applications.
I turn now to the question of whether, as the respondent asserts, the applications were 'doomed to fail' because the applicants did not have a proper interest under s 109(1) of the GA Act and/or the applications were otherwise patently unmeritorious.
As stated above, it is likely that the mere fact that an applicant is a relative of the donor of an EPA is not sufficient, on its own to, to give an applicant a 'proper interest' for the purposes of s 109(1) of the GA Act.
In the case of EW, the applicant was found to have a proper interest for the purposes of s 109(1)(a) of the GA Act because of a combination of three factors: the applicant was a close relative of the donor (the son of the donee); he was a beneficiary under the donor's will; and, there were allegations that a significant amount of the donor's money had been misappropriated during the donor's lifetime.
Given the supervisory role of the Tribunal in relation to EPAs, and the public interest in ensuring that attorneys under EPAs fulfil their obligations, it is likely that any person raising a genuine, reasonably based, allegation that an attorney has misappropriated funds or otherwise failed to comply with his/her obligations as an attorney, will have a 'proper interest' for the purposes of making an application under s 109(1)(a) or s 109(1)(b) of the GA Act. However, there is nothing in the published decisions of the Tribunal to suggest that there must be an allegation of misappropriation or failure to comply with the obligations of an attorney so as to provide a 'proper interest' for the purposes of s 109(1) of the GA Act.
In the absence of any allegation of misconduct or failure to comply with the attorney's obligations, factors such as whether the donor has been in the habit of sharing financial information with the applicant and the purpose of the applicant in seeking the orders for intervention will be relevant to the determination of whether the applicant has a 'proper interest' (Re SS; Ex Parte RA [2008] WASAT 218 (Re SS) at [62]). The nature of the relationship between the applicant and the donor of the EPA, that is, whether they had a close relationship or were estranged, is another relevant factor (see KS (2) [2008] WASAT 167 (KS (2)) at [38] [46]).
In this case, I am satisfied that the relationship of the applicants to KJO (being his siblings, and also their ongoing close personal relationships with him) together with their purpose of wanting to obtain information in order to assist KJO in circumstances where:
a)he had told one or more of the applicants that he did not know his financial situation; and
b)they did not know that he had been diagnosed with dementia with accompanying confusion and short term memory loss,
is sufficient to provide them with a 'proper interest' to make an application under s 109(1)(a) of the GA Act.
However, that is not necessarily the end of the matter. Even where a person has a proper interest so as to provide foundation for the making of an application under s 109(1) of the GA Act, it does not necessarily follow that the Tribunal will exercise its discretion to make an order under s 109(1)(a) or s 109(1)(b) of the GA Act (EW at [94]). As was made clear by the Tribunal in GA and EA and GS [2013] WASAT 175 at [25] [27] (citing EW) in an application for an order under s 109(1)(a) or s 109(1)(b) of the GA Act, the Tribunal must determine whether there is some reason requiring or justifying an inquiry or scrutiny into the operation of the EPA. It seems to me that other factors that may be relevant to the determination of an application under s 109(1)(a) or s 109(1)(b) of the GA Act include:
1)whether there have been any dealings or transactions made by the attorney in connection with the power (see Re SS at [70] [77]);
2)whether the donor was capable and had knowledge of all relevant dealings or transactions (see KS (2) at [48]);
3)whether there are any records or accounts in the attorney's custody or control (while the lack of such documents may mean that the attorney has breached his/her obligation to keep and preserve accurate records and accounts, an attorney cannot be ordered to lodge with the Tribunal accounts and records if no such documents exist);
4)whether the order sought would be unduly onerous on the attorney (see KS (2) at [54]); and
5)(in relation to s 109(1)(b) of the GA Act only) whether it can reasonably be expected that an audit will produce information that is not already readily apparent.
Ultimately, in this case, because the applications were withdrawn before any hearing of the merits of the applications, I am unable to determine whether or not the discretion to make orders under s 109(1)(a), s 109(1)(c) or s 110N of the GA Act would have been exercised in the applicants' favour. I did initially take the view, which I expressed at the first directions hearing, that, based on the reasons given in the applications for the making of the applications, if KJO had capacity (which it later turned out he did not) the applicants may have had a difficult case to make out sufficient reason for the Tribunal to exercise its discretion under s 109(1)(a) of the GA Act in their favour. However, having regard to the above mentioned factors that are potentially relevant to the determination of whether to exercise that discretion, I am unable to find, based on the limited information available to me, that the applications were patently unmeritorious or were, as the respondent claimed, 'doomed to fail'.
Conclusion
While the respondent had every right to have legal representation in these proceedings, the applications were not legally or factually complex or unique, the conflict between the parties was not of such a magnitude that the parties were unlikely to be able to present a coherent case without legal assistance and there was no other factor that I could identify that would warrant the Tribunal exercising its discretion to award costs out of KJO's estate pursuant to s 16(4) of the GA Act.
For the reasons given above, I am satisfied that the applicants had a proper interest in making the applications under s 109(1) of the GA Act. It is not clear whether the applicants would ultimately have been successful in their applications; however, I am not satisfied that the applications were patently unmeritorious or so clearly untenable such that the commencement and maintenance of the applications (to the extent of two directions hearings and an informal settlement negotiation) justifies a departure from the ordinary position that each party bear their own costs in Tribunal proceedings. I am not satisfied that the applicants acted unreasonably or inappropriately in the proceedings or that there is any other reason why I ought to exercise the discretion to award costs under s 87(1) of the SAT Act. I therefore decline to do so.
Orders
The Tribunal makes the following order:
1.The application made by the respondent, that his costs incurred in the proceedings be paid either from the estate of the donor or by the applicants, is refused.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L EDDY, MEMBER