CH and JC - [2011] WASAT 114

CH and JC [2011] WASAT 114

Last Update: 03/08/2011

CH and JC [2011] WASAT 114
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 114
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:529/2011, GAA:530/2011	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS V O'TOOLE (SENIOR SESSIONAL MEMBER)	Delivered:	02/05/2011
No of Pages:	10	Judgment Part:	1 of 1
Result:	Costs application dismissed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	CH JC
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
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)
Case References:	J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 LC and JS [2007] WASAT 127
Summary:	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. 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.

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

GAA 530 of 2011

BETWEEN : CH

Applicant

AND

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

(Page 2)

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

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.

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Details

AGLC: CH and JC [2011] WASAT 114
Case: [2011] WASAT 114
Decision Date: 2 MAY 2011

CaseChat Overview and Summary

The case involved an application for legal costs following the dismissal of an application for the appointment of an administrator under the Guardianship and Administration Act 1990 (WA). The application was also related to the intervention in enduring powers of attorney. The parties involved were CH and JC. The dispute centred on the appropriateness of awarding costs to the applicant following the dismissal of their application and intervention in the enduring powers of attorney. The matter was heard in the Court of Appeal of Western Australia.

The primary legal issue before the court was whether the Tribunal should depart from the general principle that each party bears their own costs in a situation where the application was dismissed and the intervention in the enduring powers of attorney was made. Additionally, the court had to consider whether the applications were made for an improper purpose, and if so, whether that should affect the costs decision. The court had to balance these considerations against the statutory framework and relevant case law.

In determining the costs application, the court considered the relevant provisions of the Guardianship and Administration Act 1990 (WA) and the general principles governing costs in legal proceedings. The court found that the applications were not made for an improper purpose and that the general principle of each party bearing their own costs should not be departed from in this case. The court concluded that the applicant was not entitled to an order for costs, and therefore dismissed the costs application.

The final orders of the court were that the costs application be dismissed. No further orders were made.

Orders

Orders of the court

Costs application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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