BS and KM
[2009] WASAT 198
•14 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BS and KM [2009] WASAT 198
MEMBER: MS D DEAN (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 14 OCTOBER 2009
FILE NO/S: GAA 1466 of 2009
GAA 1467 of 2009
BETWEEN: BS
Applicant
AND
KM
Represented Person
Catchwords:
Guardianship and administration - Application for administration - Joint plenary administrators appointed - Application for guardianship - Joint limited guardians appointed - Application for the legal costs of a party to be paid out of the estate of the represented person - Factors to be considered in determining costs applications - Whether the principle that parties bear their own costs should be set aside - Application for costs dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 16, s 16(4)
State Administrative Tribunal Act 2004 (WA), s 87(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: N/A
Represented Person : N/A
Solicitors:
Applicant: Talbot Olivier Lawyers
Represented Person : N/A
Case(s) referred to in decision(s):
LC and JS [2007] WASAT 127
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Applications for both guardianship and administration were made in respect of KM an unmarried, middle aged man with a diagnosis of rapid onset and advanced dementia. The Tribunal appointed two of his friends as joint limited guardians and two of his friends as joint plenary administrators. BS, a party to the proceedings, who was legally represented at the hearing, sought an order under s 16(4) of the Guardianship and Administration Act1990 (WA) for his legal costs to be paid out of the estate of KM.
The Tribunal found that there was nothing about the proceedings to suggest that legal representation was necessary to ensure the best outcome for KM and dismissed the application for legal costs to be paid out of his estate.
Background
This application relates to the legal costs of BS, the jointly appointed administrator and guardian in the matter of KM. KM, is an unmarried, middle aged man, with no children who developed a rapidly progressive dementia resulting in him being unable to make reasonable decisions for himself about any aspect of his life and finances.
Application was made to the Tribunal by the hospital social worker for the appointment of a guardian and an administrator for KM. In her application, the social worker advised that KM had no family other than his mother who is in a nursing home with dementia and no friends other than his neighbour, DA, who had been providing significant support to KM.
In the lead up to the hearing, several friends of KM became aware of his situation and made submissions to the Tribunal outlining their willingness to become involved in providing whatever support was required to KM.
The hearing was attended by KM's friends but not KM himself whose illness had, by that time, progressed to the point that he would not be able to contribute in any significant way to the proceedings.
The Tribunal appointed two of KM's friends, BS and DA, as joint limited guardians to make decisions in respect of where he is to live, any services he should have access to, to consent to medical and dental treatment, and the use of chemical or physical restraints if required and appropriate. The Tribunal appointed BS and SS joint plenary administrators of KM's estate.
At the conclusion of the hearing BS indicated that he intended making an application for payment of his legal costs. BS subsequently submitted an application seeking payment of his legal fees out of the estate of KM.
Application
In his application, BS provides a 'Draft Bill of Costs' giving a breakdown of his legal costs totalling $11,883.64. In his 'Submission on Costs' (submission), he states that these costs were incurred because he 'was concerned to obtain legal representation because he had advised and assisted [KM] in respect to collecting art collectables of antique and special value and book assets ("Collectable Assets") over many years until [KM's] incapacity'.
The submission further states that:
16.After approaching the Tribunal, [BS] became aware that there were several interested parties emerging to try and help [KM]. The interested parties came from different aspects of [KM's] life and it became readily apparent to [BS] that a hearing conducted in the usual manner without a common goal for the interested parties would either result in protracted proceedings or end up with disappointed parties who would not be willing to assist in the care of [KM]. Accordingly [BS] with the aid of legal advisors set to put in place a framework to harness the energies of the interested parties in order that they might work together and in order to expedite the resolution of proceedings. As a result prior to the hearing of 10 July 2007 [sic], a document 'Heads of Agreement' was drafted by [BS's] legal representative which was signed by all of the interested parties in order to minimise the potential of conflict and to present a coherent case to the Tribunal.
17.Whilst the Heads of Agreement was not accepted as binding on the Tribunal, it served to focus the information presented to the Tribunal and assisted the Tribunal to reach its decisions in a timely manner.
In his submission, BS states that KM's 'circumstances were unique given the combination of factors presented by his situation' and outlines these as 'lack of family support', 'rapid mental decline' and 'unusual and valuable estate'.
The legislation
Section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) relevantly provides:
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.
The provision relating to costs to be paid out of the estate of the represented person is found in s 16 of the Guardianship and Administration Act 1990 (WA) (GA Act). Section 16(4) provides that, if the Tribunal is satisfied that a party to proceedings commenced under the GA Act has acted in the best interests of the represented person, it may order that such costs relative to those proceedings as it thinks fit be paid to that party out of the assets of the represented person.
Findings and reasons
The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs. However, s 16(4) should not be read independently of s 87(1) of the SAT Act and the starting position that parties bear their own costs.
I am not satisfied in this case that there is reason to depart from the rule in s 87(1); that parties to proceedings before the Tribunal bear their own costs. I do not accept that it was necessary for BS to engage legal advisors 'to put in place a framework to harness the energies of the interested parties … in order to minimise the potential of conflict and to present a coherent case to the Tribunal'. Nor do I accept that the 'Heads of Agreement' served any purpose other than to formalise the agreement the parties wished to enter into with one another in relation to the role they chose to play in KM's life.
I do not accept that the issues for determination concerning KM were more complex than most matters in the guardianship and administration jurisdiction or that legal representation was necessary in order to bring and conduct the proceedings in a timely and coherent manner. The proceedings were already before the Tribunal and there was nothing in the presentation of material from the several parties to indicate there was any conflict or difference of opinion amongst them.
It is the right of any party to seek legal advice and representation in proceedings before the Tribunal but ultimately, the decision to award costs is at the discretion of the Tribunal. Proceedings before the Tribunal are conducted with as little formality as practicable and in such a manner as to ensure that parties are encouraged and given every opportunity to provide relevant information to the proceedings to ensure the best outcome for the person. Given the nature of the conduct of proceedings before the Tribunal, it will only award costs in exceptional or unusual cases and, although BS submitted to the contrary, I find that there was nothing about this case that made it exceptional or unusual.
In his application, BS refers to LC and JS [2007] WASAT 127 in which the Tribunal outlined some types of situations where it might choose to exercise its discretion when making a determination in respect to an application for legal costs. These types of situations and my response to these are outlined below.
•Where it is unlikely that an application would have been made to the Tribunal and the (proposed) represented person benefit from the protection of an order had not legal advice been sought by the applicant.
The Tribunal already had before it applications for both guardianship and administration made by a hospital social worker prior to BS, or most other friends of KM, becoming aware of his situation and illness.
•Where there are serious allegations that the (proposed) represented person is suffering from abuse and legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner.
There was no suggestion that KM, the proposed represented person, was suffering from abuse of any type and the friends of KM, all highly intelligent and well educated persons, are well equipped to 'present a reasoned case to the Tribunal in a timely manner'.
•Where 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.
There was no conflict between the various parties, indeed it was apparent from the submissions provided to the Tribunal prior to the hearing that parties were working together to ensure that the best possible care and support was provided to and for KM.
•Where the application is of such complexity that legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner.
I do not accept BS's proposal that this was a 'unique' or complex case. It is not uncommon for the Tribunal to have before it cases which include one or more combinations of those factors referred to by the applicant as 'unique' and for the Tribunal to make decisions in the best interests of the subject person without the involvement of legally represented parties.
•Where the application is contentious and unique, for example: sterilisation; and
•Where the application raises a special point of law.
Neither of these two points are relevant to this case.
I agree that these areas of consideration provide a guide in making a determination in the 'best interests' of a person and have considered these in making my decision.
Guardianship and administration is a nocost jurisdiction with the awarding of costs being the exception and only occurring in those cases determined by the Tribunal to involve circumstances that warrant the payment of legal costs.
The 'Draft Bill of Costs' refers to costs associated with the drawing up of the Heads of Agreement. While it is admirable that the friends of KM were available to provide support to him, I do not consider that this required a legal document or warranted the quite considerable legal costs involved in drawing up such a document. Nor was it necessary for legal involvement in correspondence to the Tribunal. As stated previously, hearings are conducted in an informal and nonthreatening manner, generally without legal representation. I am not satisfied that it was necessary that BS engage the services of a solicitor to represent him at the hearing nor am I satisfied that it is in KM's best interests that the BS's legal costs be paid for out of the estate of KM.
Conclusion
It is the right of any party to seek legal advice and representation in proceedings before the Tribunal, but, as the applicant rightly points out in his application, ultimately, the decision to award costs is at the discretion of the Tribunal.
The Tribunal has a statutory obligation to act in the best interests of the represented person. As stated previously, I am not satisfied that it is in the best interests of KM, the represented person in this case, for his estate to bear the cost of BS's legal representation at the hearing or for the preparation of documents in relation to this matter.
Given the inquisitorial nature of the Tribunal processes that allows the Tribunal to gather information in any way it sees fit and the availability of the Public Advocate in an investigatory role if required, the Tribunal is, in most cases, able, without input from legal representatives of parties, to gather the information required to make a decision in the best interests of the represented person. This case was no different from most others in that respect.
In my opinion there was nothing about the conduct of the hearing on 10 July 2009 to suggest that legal representation or involvement was necessary to ensure the best outcome for KM.
For the reasons set out above, the application for costs to be paid out of the estate of KM is dismissed.
Orders
The application for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) is dismissed.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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