CK
[2023] WASAT 84
•14 SEPTEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: CK [2023] WASAT 84
MEMBER: DR E MARILLIER, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 14 SEPTEMBER 2023
FILE NO/S: GAA 2266 of 2023
GAA 2321 of 2023
GAA 3068 of 2023
CK
Represented Person
Catchwords:
Guardianship and Administration - Enduring Power of Attorney - Enduring Power of Guardianship - Conflict of interest - Costs - Exceptional circumstances - Presumption that parties bear own costs
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 16(4), s 64(1), s 65, s 108(1), s 110F, s 110N
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(3)
Result:
Parties to bear own costs
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | Jackson McDonald |
Cases referred to in decision(s):
Blaskiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56
GD [2022] WASAT 33
LC and JS [2007] WASAT 127
PJC and RJC [2008] WASAT 224
Re IO; Ex Parte VK [2008] WASAT 8
Re WA and IA Ex parte AA and JA [2011] WASAT 33
RK [2020] WASAT 53 (S)
WD [2022] WASAT 12 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Y and CO [2020] WASAT 166
REASONS FOR DECISION OF THE TRIBUNAL:
Background
CK is an 83-year-old man with two children, daughter V and son P.
CK was formally diagnosed with mixed vascular and Alzheimer's dementia in 2022 in Singapore, after V and her family (with whom CK was living at the time, had become concerned that he was becoming disoriented, forgetting whether he had performed activities of daily living and at times getting lost even within their condominium complex.
CK (who was normally resident in Perth) had stayed in Singapore with V after travelling there on holiday with his wife, who unexpectedly became ill and died there in 2017.
In November 2022, V and her daughter travelled to Perth with CK to settle back in Western Australia. CK moved in with P and his family by mutual agreement.
In May 2023, P applied to the Tribunal seeking the appointment of an administrator and a guardian for CK.
V had been appointed as enduring attorney on 20 December 2017 and purportedly enduring guardian on that date also. I found the enduring power of guardianship (EPG) invalid on 25 July 2023 in matter GAA 3068 of 2023 (V's application under s 110K seeking a declaration of validity) due to the insertion of a clause in the acceptance purporting to have the EPG come into effect on the day of execution and notwithstanding the subsequent legal incapacity of the donor. This is inconsistent with s 110F of the Guardianship and Administration Act 1990 (WA) (GA Act) and the form prescribed by the regulations, where it is of the essence that an EPG has effect 'at any time the appointor is unable to make reasonable judgments in respect of matters relating to his person.'[1]
[1] GA Act, s 110F.
On 29 November 2022, CK had purportedly executed an EPG appointing V and P jointly and severally as his enduring guardians. By the time of the hearing, both P and V acknowledged that the medical evidence established that CK did not have capacity to execute this document on that date. In addition, as the Public Advocate investigator noted, joint and several appointment of enduring guardians is not a valid option under the GA Act. It was also apparent that P and V had diverging views regarding CK's wishes and what was in his best interests, and the instrument would not function effectively even if CK had capacity at the time of execution and the form had complied with the GA Act. I revoked the EPG on 25 July 2023 in matter GAA 2321 of 2023 (P's application under s 110N seeking to have the EPG revoked).
P had sought emergency appointment of an administrator due to concerns about V's management of aspects of the estate as enduring attorney. The concerns included holding approximately $285,000 of CK's money in an account in V and CK's names jointly, terminating a rental agreement for one of CK's properties (on which he held a mortgage of $269,000, requiring monthly payments of $1,650), so that V and her family could live in it rent-free, and taking money from CK's retirement account to pay for renovations and repairs to that property. Additionally, V was said to have put another of CK's properties on the market and was seeking to have CK sign the documents relating to this, despite the medical evidence of his incapacity, and in circumstances where there was no immediate need to do so.
I appointed the Public Trustee as plenary administrator for CK on 23 May 2023 pursuant to s 65 of the GA Act, as I was satisfied that CK may be a person for whom declarations of incapacity should be made pursuant to s 64(1) of the GA Act, and that it was necessary to make immediate provision for the protection of his estate.
I also referred the matters to the Public Advocate for investigation on 23 May 2023.
The matters were heard and determined on 25 July 2023, with P appointed as the limited guardian for CK to make medical, accommodation and services decisions, the Public Advocate as the limited guardian to make contact decisions, and the Public Trustee as plenary administrator. The enduring power of attorney (EPA) of 20 December 2017 was revoked pursuant to s 108(1). I delivered the reasons for my decision ex tempore on that date.
P sought liberty to seek a costs order, and I granted all parties liberty to file submissions in relation to costs.
Written submissions were received from P seeking costs either from V pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) or from CK's estate pursuant to s 16(4) of the GA Act. V made submissions seeking that the Tribunal decline to make a costs order, on the basis that each party should bear their own costs. No party sought a further hearing.
I have determined that in this matter the parties should bear their own costs, for the reasons which follow.
The principles to be observed
In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned.[2]
In this case, that is CK.
[2] GA Act, s 4(2).
Section 16(4) of the GA Act states:
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.
The issues for consideration by the Tribunal when determining whether it should exercise its discretion to order a represented person to pay another party's legal costs include:
…
•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;
•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;
•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;
•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;
•where the application is contentious and unique; and
•where the application raises a special point of law.
60Awards of costs pursuant to s 16(4) of the GA Act are not common. They have generally been made when the application for costs is made by the applicant in the substantive application … and the Tribunal finds that the represented person benefitted by the applications being made and protective orders made. [3]
[3]Y and CO [2020] WASAT 166 (Y and CO) [32], citing ReWAand IAEx Parte AA and JA [2011] WASAT 33 [59][60] (Re WA and IA) (which I note in turn is derived from LC and JS [2007] WASAT 127) (LC and JS).
Section 87(1) of the SAT Act states that '[u]nless 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'.
In RK [2020] WASAT 53 (S) at [22] the Full Tribunal found that 'the starting point in respect of applications for costs in relation to GA Act proceedings is that the parties to those proceedings should bear their own costs'.
The Tribunal does, however, have the power to order payment of costs by a party under s 87(3) of the SAT Act 'to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding' although 'the legal rationale is not to punish the person against whom the order is made'.[4]
[4] Blaskiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56, at [61] discussing Western Australian Planning Commission vQuestdale Holdings Pty Ltd [2016] WASCA 32 at [61].
The Tribunal has discretion to award costs in any proceeding (except as otherwise provided in an enabling Act).[5] Further, as Member McGivern observes in GD:[6]
… the Tribunal is required to exercise its discretion having regard to all of the circumstances of the particular case, and ultimately on the basis of whether it is fair and reasonable for one party to bear the costs of another. Some considerations that guide that ultimate assessment include whether:
a)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. This includes where proceedings should not have been maintained against a party because it is clearly untenable, and no reasonable person would have believed they could be successful; and
b)costs have been incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings (where the conduct of the party was unreasonable and unfairly caused the increased costs).
P's submissions
[5] SAT Act, s 87(2).
[6] GD [2022] WASAT 33, [59].
P argues that he acted in CK's best interests in making the application, and that protective orders were ultimately made. He says that because of the complexity of CK's estate and the fraught relationship between P and V, legal representation was required to assist him to ascertain whether his concerns were sound, to identify the means by which CK's interests could be protected, to navigate the complexity of the situation and to assist in presenting the case in a clear and objective fashion. This is what is said to give rise to grounds under s 16(4) of the GA Act for a costs order.
Further, he argues that V presented her case in an irrelevant, embarrassing, unsubstantiated and provocative manner which he says unreasonably and/or unfairly increased costs and caused him embarrassment. This is what is said to give rise to grounds under s 87(3) of the SAT Act for a costs order.
P seeks by way of an award of costs:
(a)an amount of $20,654.40 as a contribution towards the legal costs incurred by him (which it is said were considerably higher than that, bearing in mind the total time spent was in excess of 90 hours);
(b)an amount of $1,747.80 for disbursement costs; and
(c)a notional amount (only from V) of $500 to compensate him for the inconvenience and embarrassment arising from the personal attacks on his character, in particular the repeated reference by V to his 'status in Singapore' which was entirely irrelevant and unnecessary.
V's submissions
V states that P had no need to engage legal counsel to represent him, and that the issues were not complex or unique. She says that P is a lawyer.
V states that the application was not in the best interests of CK. She also says the application damaged her reputation as a solicitor and therefore submits that P's claim for costs is unreasonable.
Outcome
Given the observations I made regarding V's failure to identify the conflicts of interest between her obligations as enduring attorney to CK and her actions in relation to his estate (both bank accounts and property) in my oral reasons, I find the submissions in the paragraph above show a worrying lack of insight and failure by V to appreciate the seriousness of the situation revealed in the application and the Public Advocate and Public Trustee's reports. I revoked the EPA because I found it was not operating in the best interests of CK and did not serve as a less restrictive alternative by which his needs could be met.
The application was made in CK's best interests and protective orders were made. It was necessary to make the application, as discussion between P and V had failed to alleviate the concerns.
The question for me to determine is whether the circumstances are sufficiently exceptional that they would justify departure from the starting position outlined at [18].
I have verified that P is listed with 'not practising' status on the Legal Practice Board of Western Australia register, having been admitted on 2 July 2009. P has confirmed that he completed a law degree in 2006 and was admitted to the Supreme Court in 2009 but has never actually practised as a lawyer. Considering the factors in [17], I note firstly that where P has been admitted as a lawyer, and there is no language barrier, I am not persuaded that it was unlikely that an application would have been made and CK would have benefitted from the making of an order without legal advice being sought. Y and CO[7] involved an applicant with significant language and cultural barriers and is distinguished on that basis. In LC and JS[8] the Tribunal declined to award costs even though the applicant was elderly and had come from a nonEnglish speaking background only 10 years prior (in circumstances where there was already an application for administration and guardianship orders before the Tribunal).
[7] Y and CO.
[8] LC and JS [2007] WASAT 127.
In Re IO; ex parte VK[9] the Tribunal made a partial award of costs in a case where the capacity of the proposed represented person was contested, and a transfer of land had been made by them to their primary carer daughter to their significant financial detriment (including loss of pension). Although the family conflict in that matter is similar to this case, there was no uncertainty regarding CK's capacity and there has not been an analogous property transaction.
[9] Re IO; Ex Parte VK [2008] WASAT 8.
Although there were serious allegations and conflict in this matter, these were not particularly unusual in their complexity or magnitude within the scope of GA Act applications. I do not find that legal advice and representation were essential to permit the presentation of a reasoned and coherent case in a timely manner.
There were no factors which were unique or raised a special point of law.
It is, of course, completely a matter for parties whether they choose to seek legal representation, and it can provide significant benefit for them if they choose to do so.
This choice, however, must not give rise to any expectation in Tribunal proceedings that the cost of that choice should be subsidised or met by any other party. Orders under s 16(4) are exceptional.
I am not persuaded that this case is exceptional in any way that would justify a finding that the full or partial cost of legal representation entered into by P should be met by CK, and I therefore decline to make any such order.
In regard to the submission that V should be liable for some or all of P's legal costs, due to the manner of her submissions and particularly to the 'status in Singapore' references, I agree with P's submission that that issue was entirely irrelevant to the issues to be determined by the Tribunal.
P and his legal representatives made a forensic decision that further time and legal expense should be incurred seeking multiple character references and having those in Mandarin translated into English.
In circumstances where from 23 May 2023 P and his legal representatives knew that both the Public Trustee and the Public Advocate were conducting independent investigations which would inform the Tribunal's consideration of the issues arising in the matter, including issues of suitability for appointment, the responsibility for those decisions and the incurring of the costs must rest with P.
The submission that $500 should be required to be paid by V 'to compensate him for the inconvenience and embarrassment arising from the personal attacks on his character' appears to be contrary to the Tribunal's view that the purpose of s 87(3) is not punitive (see [19]).
I paid no regard to the irrelevant material and it was not ventilated at the hearing. As a result, I am not persuaded that such a compensatory payment is warranted, and I decline to make the order.
With regard to P's argument that V's submissions were flawed in the ways summarised in [22], this again is not an unusual situation in matters under the GA Act where the majority of parties are selfrepresented (although noting that V is a solicitor). It did not appear that V made intentional or strategic decisions in her submissions aimed at causing delay or obstructing the Tribunal. To the contrary, it appears that as in her decision-making under the EPA and EPG, V in her submissions failed to appreciate what the relevant issues were. This does not give rise to grounds to make a costs order, in circumstances where the presumption is that parties will bear their own costs.
In Re WA and IA[10] the Tribunal awarded $3,500 of a claimed $11,000 to be paid by the applicant sibling to AA and JA where the applicant had continued her applications in circumstances where she knew that her parents retained capacity, and where she made serious, unsubstantiated allegations about AA in relation to an EPA, which the Tribunal found amounted to unreasonable and inappropriate conduct. The current matter is distinguishable as it is not one in which an applicant pursued an application unreasonably, and in that what P argues V raised unreasonably was also irrelevant, rather than going to the substantive issues.
[10] Re WA and IA Ex parte AA and JA [2011] WASAT 33.
In PJC and RJC[11] the Tribunal awarded partial costs to the proposed represented person where his son, the applicant, had maintained his application after having been put on notice by the Tribunal that there was no medical evidence to displace the presumption of capacity. This is in no way analogous to the current case.
[11] PJC and RJC [2008] WASAT 224.
Similarly in WD[12] Member McGivern awarded costs to two parties against whom serious allegations were made and sustained by the applicant in circumstances where they were not supported by evidence and had been previously made in other fora such as to be suggestive of being made for an ulterior purpose; and where multiple applications were made, and volumes of material filed (some 1500 pages) which was not directed to the issues to be determined, despite repeated guidance in relation to those matters; and in objecting to and seeking to preclude the Tribunal taking evidence from medical professionals and to prevent other parties being legally represented. This is an extreme level of unreasonableness well beyond anything observed in the current proceeding.
[12] WD [2022] WASAT 12 (S).
I therefore order that parties are to bear their own costs.
Orders
The Tribunal orders:
1.The application for costs is dismissed.
2.The parties shall bear their own costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
14 SEPTEMBER 2023
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