BS and KM - [2009] WASAT 198

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BS and KM

Details

AGLC: BS and KM [2009] WASAT 198
Case: [2009] WASAT 198
Decision Date: 14 OCTOBER 2009

CaseChat Overview and Summary

BS and KM were the parties involved in this dispute, which pertained to the administration of a deceased estate and the subsequent appointment of administrators and guardians. The matter was heard in the Supreme Court of Queensland. BS, the applicant, sought the appointment of joint plenary administrators for the estate of KM, who had recently passed away. Additionally, BS applied for joint limited guardianship over KM's children. The applicant also sought an order for the respondent to pay the legal costs incurred during the proceedings, arguing that the principle of parties bearing their own costs should be set aside.

The court had to address several legal issues, including the appointment of joint administrators and guardians, and the allocation of costs between the parties. Specifically, the court needed to determine the appropriate factors to consider when deciding on costs applications and whether the general rule that parties should bear their own costs should be disregarded in this case. The court also had to weigh the circumstances of the case to determine if there were exceptional reasons to order one party to pay the other's legal costs.

The court found that while it was within its discretion to order costs to be paid by one party to another, the principle that parties bear their own costs should generally be upheld. In this instance, the court considered the nature of the applications, the outcome of the proceedings, and the circumstances surrounding the dispute. It was concluded that there were no exceptional circumstances that warranted departing from the usual rule. Consequently, the application for costs was dismissed, and each party was ordered to bear their own legal expenses.

Orders