| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : CH and JC [2011] WASAT 114 MEMBER : MS V O'TOOLE (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 2 MAY 2011 FILE NO/S : GAA 529 of 2011 BETWEEN : CH Applicant
AND
JC
Represented Person
Catchwords: Guardianship and administration Application for legal costs following application for administration being dismissed and intervention in enduring powers of attorney - Application for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) Factors to be considered in determining costs applications Whether Tribunal should depart from rule that parties bear their own costs Whether applications were made for an improper purpose
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Legislation: Guardianship and Administration Act 1990 (WA), s 16(4), s 16(5), s 65, s 110ZD
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(1), s 87(2) Result: Costs application dismissed Category: B
Representation: Counsel:
Applicant : Self-represented
Represented Person : Mr IR Farquhar
Solicitors:
Applicant : N/A
Represented Person : Ian R Farquhar & Co
Case(s) referred to in decision(s):
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
LC and JS [2007] WASAT 127
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The stepdaughter of an elderly man applied for legal costs, personal costs incurred in providing submissions and participating in hearings, and costs incurred by the represented person due to the operation of the previous enduring power of attorney. Costs were sought against the applicant, her sister. Applications related to hearings on 14 March 2011 and 2 May 2011. 2 The Tribunal dismissed the applications for costs. In dismissing the applications for costs, the Tribunal took the view that it should not depart in this case from the principle that parties bear their own costs in proceedings.
Background 3 These are applications for guardianship and administration by the stepdaughter (CH) of an elderly man who is the proposed represented person (JC), and arise out of proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) that were heard and determined by the Tribunal on 14 March 2011 and 2 May 2011. 4 CH submitted that JC had blackouts, memory loss, confusion and agitation, and was unable to manage his financial affairs and consent to his health and medical requirements. 5 CH had previously acted as nearest relative and consented to health decisions, until JC had stated suddenly that he did not wish to see her anymore. CH was concerned about JC's health and who would consent to treatment decisions. 6 CH had been the donee of an enduring power of attorney (EPA) for four years. There had been no concerns raised previously by JC regarding her role as donee. There were questions raised during this period about payments by JC to his stepdaughter (SN) for computer and internet access. 7 CH was advised unexpectedly in person on 1 February 2011 that she had allegedly stolen $4,000 and that SN was now JC's attorney. CH then received a letter on 7 February 2011, dated 1 February 2011, stating that JC intended to revoke his EPA. (Page 4)
8 This was at a time when JC had been having blackouts and collapsing. He had been hospitalised on 13 January 2011 and collapsed again on 7 February 2011. 9 CH immediately sought legal advice regarding the revocation of the EPA and accusations of theft and, on this advice, submitted guardianship and administration applications to the Tribunal proposing that the Public Trustee should be appointed administrator of the estate of JC and that the Public Advocate be appointed guardian of the estate of JC. 10 At the hearing on 14 March 2011, the Tribunal made an order under s 65 of the GA Act to appoint the Public Trustee to protect JC's estate and to ascertain whether JC had capacity to make reasonable decisions regarding his financial affairs. The legal representative of JC at this hearing concurred with this decision. The medical evidence before the Tribunal was inconsistent and unclear. The family conflict raised concerns about the need to protect JC's estate. 11 The application for guardianship was adjourned because JC's capacity to make reasonable health decisions was also unclear. The medical evidence before the Tribunal was that JC could make some contribution to personal health care decisions and SN could consent to health treatment under s 110ZD of the GA Act. 12 At the hearing on 2 May 2011, both guardianship and administration applications were dismissed after investigations by the Public Trustee and the Public Advocate, and additional medical and other evidence was provided that confirmed JC's testamentary capacity at the time of executing the new EPA. 13 The Public Trustee investigation found that JC was an unreliable narrator with limited understanding of his assets who would benefit from some form of assistance with his finances. No evidence of mismanagement on the part of CH when she was donee of the previous EPA was found. 14 Based on these reports, the Tribunal reached the conclusion that JC had testamentary capacity at the time of making a new EPA, but that his condition may have since deteriorated. He did, however, have a current EPA in place, with SN as his attorney. This would be a least restrictive means of protecting his estate and would reflect his wishes. (Page 5)
15 Regarding the guardianship application, the Tribunal decided that health decisions can be made by SN as his closest relative who has regular contact: see s 110ZD of the GA Act. 16 At the conclusion of the hearing, the legal representative of JC sought a costs order but could not provide a final figure of the cost to be claimed. SN also wished to make submissions for costs of her expenses against CH. 17 Both parties were invited to submit claims for costs in writing and were advised that the applications would be dealt with on the papers.
Costs applications 18 Written submissions were received from SN dated 10 May 2011, 11 May 2011 and 23 May 2011. A later ancillary submission for costs was received by the Tribunal which related to the operation of the previous EPA. 19 The costs applicant seeks to recover a total of $18,281.86, comprising legal costs for JC and personal costs to SN due to her involvement in the proceedings. The legal costs comprise $13,481.23 and personal costs by SN and her partner comprise $4,800.63. 20 JC instructed a legal representative, (IF), whose costs comprise a significant component of the costs application. Different legal representatives were present at the two hearings. In the first hearing, legal representative AL, and at the second hearing, legal representative SO, were instructed by IF to act for JC. At the second hearing, SO stated that AL was instructed quickly, and he incorrectly stated that he acted for JC, his wife and SN. 21 SO, in his written submission on costs, proposed that the guardianship and administration applications to the Tribunal were mischievous, without merit and brought because of conflict between two sisters (CH and SN). 22 SN, in her submission, questioned why she and JC should be financially penalised as a result of CH's failure to take reasonable care and diligence. SN was critical of transactions undertaken by CH, when she was the previous EPA attorney, with respect to storage of JC's property. She described these actions as manipulative, and referred to tampering of the (storage) account which she described as unconscionable and biased to JC's rights. (Page 6)
23 In the final hearing, SO acknowledged that costs could only be awarded in exceptional circumstances and are reserved for cases of unreasonable conduct, abuse of process, and cases brought vexatiously for an improper purpose. 24 SO stated that JC had the right to execute an EPA in favour of any competent person and that CH's motivation was to strike back at SN because she regards SN as having accused her of stealing JC's money. 25 SO did accept that CH did not steal from JC, but that JC was not provided by CH with sufficient documentation to permit him to comprehend his own financial position. 26 SO contended that the applications were not made in JC's best interests and he queried why JC should have to pay for asserting an independence that legislation presumes in his favour. 27 SO did acknowledge in the hearing that IF would have been obliged, under the legal practitioners' regime, to inform JC about costs involved in instructing a solicitor and barrister and presumably that, under the GA Act, reimbursement of costs would only be in exceptional circumstances. 28 SO also asserted that JC has limited financial resources that should not need to be spent on any application based on a personal conflict between his two stepdaughters (CH and SN). 29 The costs submission was based on a contribution to the legal costs only.
Response to the costs application by CH 30 CH responded that, as she had a long-trusting and devoted relationship with JC, she had immediate concern regarding his mental capacity when he suddenly and unreasonably accused her of theft. 31 CH then sought legal advice as to what actions to take. On this advice, she submitted the urgent applications for guardianship and administration. She stated that she did this in JC's best interests. She paid for this legal advice herself. 32 CH also noted that the representative of the Public Advocate attending the second hearing stated that she considered that CH had acted correctly in questioning whether JC had testamentary capacity to execute a new EPA. (Page 7)
Costs 0160 0173 0160legislative framework 33 The determination of costs applications is at the discretion of the Tribunal within the framework of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the enabling Act, in this case, the GA Act. The relevant provisions are:
SAT Act s 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. …
GA Act 34 Section 16(4) and s 16(5) of the GA Act provides: Reasons for decision 35 Section 87(1) of the SAT Act establishes that the starting point in any costs applications before the Tribunal is that parties bear their own costs. (Page 8)
36 In decisions of the Tribunal in GA Act matters and in other jurisdictions of the Tribunal (see, for example, J & P Metals Pty Ltd and Shire of Dardanup[2006] WASAT 282),costs applications are considered within the context of the obligations of the Tribunal to act speedily and with as little formality as is practicable, and to minimise costs to the parties, consistent with the obligations and objectives of the Tribunal as set out in s 9 of the SAT Act. 37 Although the Tribunal has a broad discretion to award costs, under s 87(2) of the SAT Act, it will need a good reason to depart from the general principle in s 87(1) of the Act. There is no statutory (or other) entitlement to costs. 38 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. 39 Proceedings before the Tribunal are conducted with as little formality as practicable and in such a manner as to ensure that the parties are encouraged and given any opportunity to provide relevant information to the proceedings to ensure the best outcome for the person. Given the nature of the conduct of the proceedings before the Tribunal, it will only award costs in exceptional or unusual cases. 40 In respect of the present application for costs, the first question is: why should the Tribunal depart from the principle in s 87(1) of the SAT Act?
The Tribunal's decision and reasons 41 In LC and JS [2007] WASAT 127, the Tribunal, when determining an application under s 16(4) of the GA Act, listed the situations which are not exhaustive where it might be reasonable to have legal costs paid. Whilst not exhaustive they provide a useful guide. None of these situations relate to this application. 42 The Tribunal is not persuaded that legal representation was required in this case in order to reach a decision in JC's best interests. The issues were not legally complex, and whilst there was family conflict, this did not require legal assistance to determine the history and needs of JC. 43 There were no serious allegations of abuse that required legal advice and representation to present a reasoned case to the Tribunal, nor were the (Page 9)
applications for guardianship and administration brought as an abuse of process, or vexatiously for an improper purpose. 44 There were reasonable grounds to consider that the unexpected change of the EPA and the statements of theft were irrational, unexpected and done at a time when JC was unwell and suffering blackouts, with unknown cognitive impacts. 45 The issues of JC's capacity to execute a new EPA which was in his best interests and to understand transactions which had occurred under the previous EPA were threshold questions. 46 The claim for costs by CN were for personal costs for her and her partner's travel to Perth to see JC and be involved in the preparation of exhaustive documents that did not provide the Tribunal with evidence that was essential to the decision regarding the capacity of JC. 47 CN had been appointed as donee of JC's EPA by this time, and much of her written evidence related to dissatisfaction with the previous donee's transactions. 48 JC, in instructing a lawyer, should have been made aware of the inherent costs he was incurring and that orders for costs recovery are only made in exceptional circumstances. Given the nature of the issues, there is little likelihood that the applications could constitute exceptional circumstances. 49 At the first hearing, the Tribunal considered there was a lack of clarity in the evidence regarding the capacity of JC to make reasonable decisions regarding the change in the donee of his EPA. There was also evidence that indicated that an investigation was warranted as to whether JC's estate was at risk, and orders were made under s 65 of the GA Act. All parties present agreed with this course of action. 50 At the second hearing, it was determined that JC did have testamentary capacity; however, he did have cognitive incapacity and the donee of his EPA to assist in management of his affairs, which is the least restrictive alternative to an administration order. 51 It is the view of the Tribunal that the guardianship and administration applications were neither mischievous nor without merit. The representative of the Public Advocate agreed with this in her concluding statements. Nor were there any exceptional or unusual circumstances present that would justify the awarding of costs. (Page 10)
52 The costs incurred by SN and her partner were decisions made by her regarding the extent of detail provided to the Tribunal and her attendance in person at the hearing, knowing that JC had legal representation. SN's attendance also coincided with personal contact with JC and in taking on the role as donee of his EPA. 53 Any costs related to dissatisfaction with the operation of the previous EPA are not a reason for the Tribunal to allow costs. 54 The Tribunal therefore finds no reason to vary from the principle of s 87(1) of the SAT Act in that each party is responsible for their own costs.
Orders The application for a costs order is dismissed. |