DB and MJB
[2013] WASAT 73
•3 MAY 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DB and MJB [2013] WASAT 73
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS S GILLETT (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
HEARD: 3 APRIL 2013
ASSESSMENT OF COSTS DETERMINED ON THE DOCUMENTS
DELIVERED : 3 MAY 2013
PUBLISHED : 22 MAY 2013
FILE NO/S: GAA 870 of 2013
BETWEEN: DB
Applicant
AND
MJB
Subject
Catchwords:
Guardianship and administration - Limited administration - Mental disability - Capacity - Capacity to make decisions in relation to settlement of workers' compensation proceedings - Costs - Costs out of assets of person in respect of whom application made - Guardianship and Administration Act 1990 (WA) s 16(4) - Assessment of costs
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 16, s 16(4)
State Administrative Tribunal Act 2005 (WA), s 9, s 87, s 87(2)
Result:
Limited administration order made
Costs of $2,245.50 is to be paid to DB by or out of the assets of MJB
Summary of Tribunal's decision:
The father of a person suffering from a mental disability, namely, chronic depression and anxiety complicated by the pressure of workers' compensation proceedings, applied for the appointment of a limited administrator for his son in order to conduct and settle the workers' compensation proceedings. The father also sought an order that his costs of the administration application should be paid by, or out of the assets of, his son, pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA).
The Tribunal gave an oral decision in which it appointed the Public Trustee as limited administrator for the son and determined that, in the unusual circumstances of the case, an order should be made for the payment of the father's reasonable costs of the proceeding by, or out of the assets of the represented person. The father's lawyer sought leave to file a bill of costs and submissions on the amount of costs to be awarded before an order for costs is made.
After the Tribunal reviewed the father's bill of costs and submissions on the amount of costs, it published written reasons, based on the transcript of oral reasons, edited to correct errors in transcription and for clarity, for its decisions to make a limited administration order and to make a costs order. The Tribunal also published written reasons (under the heading 'Assessment of costs') in which it assessed the father's reasonable costs as $2,245.50, rather than $4,000 as sought.
The Tribunal held that the principles in relation to the assessment of costs in SAT proceedings for an order that the costs of a party are to be paid by another party under s 87(2) of the State Administrative Tribunal Act 2004 (WA) also apply in relation to an assessment of costs in guardianship and administration proceedings for an order that the costs of a party are to be paid by, or out of the assets of, the represented person or the person in respect of whom the application is made.
Category: B
Representation:
Counsel:
Applicant: Mr G Porter
Subject: In person
Solicitors:
Applicant: Talbot Olivier
Subject: N/A
Case(s) referred to in decision(s):
Medical Board of Australia and Costley [2013] WASAT 2
MJB and DB [2013] WASAT 25
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Dr DB (father) has applied for the appointment of an administrator under the Guardianship and Administration Act 1990 (WA) (GA Act) on behalf of his son, MJB (proposed represented person). The application is for the appointment of a limited administrator in order to seek legal advice on behalf of the proposed represented person and bring actions, suits and other legal proceedings in his name and, if appropriate, to settle the same.
Background
The background to this matter was set out in our earlier reasons for decision which have been published as MJB and DB [2013] WASAT 25 (earlier reasons). Briefly, as we set out in that decision, the father sought the appointment of an administrator for this purpose in September 2012. He did so because the proposed represented person had brought workers' compensation proceedings, and an offer of settlement had been made which was recommended for acceptance by his solicitors, Talbot Olivier. The proposed represented person did not accept the offer of settlement.
In November 2012, a single member of the Tribunal appointed the father as limited administrator for his son. The proposed represented person then sought review under s 17A of the GA Act in relation to that appointment and, on 22 January 2013, the Tribunal as presently constituted, being a Full Tribunal, allowed that application for review and set aside the limited administration order.
The Tribunal did that because, although it was satisfied that the proposed represented person lacks capacity to make reasonable judgments in relation to the conduct of the workers' compensation proceeding, because of chronic depression and anxiety complicated by the pressure of that proceeding having developed into a psychosis, nevertheless, the Tribunal was not satisfied on the evidence then before it that he was incapable of making reasonable judgments in relation to settlement of the workers' compensation proceeding.
The Tribunal determined that the correct and preferable decision at that point was to revoke the limited administration order because, although we clearly accepted that it is in the proposed represented person's best interests to accept the offer that has been made to settle the proceeding, we also considered that it is in his best interests, if at all possible, to accept the settlement offer himself, particularly given the strongly expressed view to us on that occasion that he would like to do so.
On 23 January 2013, the day following the giving of our decision orally on 22 January 2013, Talbot Olivier wrote to the proposed represented person making an express recommendation that he accept the settlement offer that had been made for a specified sum for three reasons. Talbot Olivier said that it recommended that the proposed represented person sign an enclosed deed of release, acknowledgement of instructions and other documents and send them, signed, to Talbot Olivier.
On 1 February 2013, Talbot Olivier wrote again to the proposed represented person in response to his email of 24 January 2013 providing further detailed advice over some four pages and again expressly stating that it is their opinion that he should settle his claims on the terms proposed, and enclosing an acknowledgement of instructions to be signed by him.
The proposed represented person did not sign that document nor give instructions to Talbot Olivier to settle the workers' compensation proceeding now for over two months.
Medical evidence
At the time that we heard the s 17A review, we were not satisfied on the evidence that the presumption stated in the GA Act that every person is presumed to be capable of, among other things, managing his or her own affairs and making reasonable judgments in relation to matters relating to his or her estate, until the contrary is proved to the satisfaction of the Tribunal, was displaced.
In particular, we heard and relied on the evidence of Dr B, the proposed represented person's general practitioner, who had seen him more recently than had his treating psychiatrist, Dr A. Dr A was not available to give evidence at that time.
Dr A has seen the proposed represented person recently and provided a report to the Tribunal dated 18 March 2013. She was also available by telephone to give evidence this afternoon. The Tribunal did not have any questions for Dr A other than asking her to confirm her qualifications and experience. The parties did not have any questions for her.
Dr A is an eminently qualified psychiatrist. She said in her report that she reviewed the proposed represented person most recently on 18 March 2013 and 'from a psychosis point of view he seems quite a lot better' than when she had last seen him.
However, Dr A also said that the proposed represented person 'remains fatuous, giggly, suspicious at times, quite confused, intense and fixated on his workers' compensation claim'. Dr A said that 'there are some ongoing psychotic processes although not as overt as they were', and 'at times he seems quite confused and thought disordered'. Dr A concluded the report as follows:
I remain of the opinion that it would be in [the proposed represented person's] best interests for him to have an administrator appointed to act on his behalf with respect to his ongoing workers' compensation claim.
It is my opinion that currently [he] does have some psychotic phenomena related to this claim and that many of his issues around his workers' compensation claim are actually based in psychotic process.
Therefore I think that his capacity with respect to this particular issue remains in doubt.
I continue to believe that it would be best for [him] to settle his claim as expeditiously as possible and then hopefully to get on with the rest of his life. He says he would allow an administrator to settle the claim and liaise with his current lawyer.
The proposed represented person's views and wishes
The proposed represented person expressed the view to us that he does not need an administrator appointed and is well enough to proceed with the workers' compensation proceeding. He said that he would wish to take that matter to a final hearing. He also said that the letters of advice that he received from Talbot Olivier were deficient in three main respects: firstly, that they were not sufficiently precise or certain and did not constitute a formal legal opinion; secondly, that they did not specify a particular amount in terms of settlement; and finally, the proposed represented person considered that they did not appear to be genuinely the opinion of Talbot Olivier.
Should a limited administration order be made?
We are satisfied on the evidence of Dr A that the proposed represented person is unable to make reasonable judgments in relation to the conduct or settlement of his workers' compensation proceeding by reason of his mental disability, namely, chronic depression and anxiety complicated by the proceeding itself. Dr A said that the proposed represented person at times seems confused and his thoughts are disordered. She also said that he remains fixated on his workers' compensation claim.
As we observed in our earlier reasons, the Public Advocate, which conducted an interview with the proposed represented person at the Tribunal's request, made a similar point in terms of him having concentrated on little else over the last two years other than the workers' compensation claim and proceeding.
Our finding that the proposed represented person is unable to make reasonable decisions in relation to the conduct and settlement of his workers' compensation proceeding is reinforced by his failure to accept Talbot Olivier's clear advice given in two letters.
The proposed represented person told the Tribunal on a number of occasions during the s 17A hearing that he would follow Talbot Olivier's advice in relation to settlement. He said, as we noted at [22] of our earlier reasons, that 'I would always follow the recommendation of Talbot Olivier'.
At [23] of our earlier reasons, we noted that when asked by Mr Porter, a partner of Talbot Olivier, the proposed represented person confirmed that he would follow a clear recommendation of Talbot Olivier, if he were allowed to do so, to settle his workers' compensation proceeding, 'even if that involved giving up general common law claims against [his] former employer; in other words, even if the settlement of the workers' compensation proceeding would bring to an end the possibility of any other claims that the represented person has, or could potentially have, against the former employer'.
We asked the proposed represented person about his evidence to the Tribunal on the last occasion when he gave evidence before us today. As we noted earlier, he raised three concerns about the recommendation of Talbot Olivier made in their two letters in January and February 2013.
However, the letters are, in our view, precise and certain. The letters contain clear recommendations to accept the offer of settlement and provide detailed reasons for the recommendation. The letters refer to the amount of the settlement offer, and express the view that that is a reasonable amount in all the circumstances of the case. The letters clearly reflect the considered view of Talbot Olivier.
There is no less restrictive alternative in the circumstances of this case than the appointment of a limited administrator.
Both the single member and the Full Tribunal on the last occasion found, and we are so satisfied viewing the evidence today, that it is in the proposed represented person's best interests for the settlement offer to be accepted. It is plain, from the medical evidence, that the continuation of the workers' compensation proceedings is having a deleterious effect on the proposed represented person's wellbeing. It is also clear from the advice given by Talbot Olivier that the advice of that firm is that it is in the proposed represented person's best interests, in terms of that proceeding, to accept the offer as made.
The proposed represented person has had a period of two months in which to accept the offer. However, it is clear, based on his evidence today, that he does not intend, if he had the capacity, to accept the offer, as he wishes to take the workers' compensation proceeding to a final hearing. That would clearly not be in his best interests to do.
The limited nature of the order that is sought is appropriate to the circumstances and no further limitation should be imposed.
Who should be appointed as limited administrator?
The father was originally appointed as administrator. However, he expressed the view that he does not wish to be appointed as administrator unless his son agreed. The proposed represented person did not agree and therefore the father does not consent to be appointed. The father rather seeks then the appointment of the Public Trustee as an independent administrator.
We consider that the appointment of the Public Trustee is appropriate in the circumstances, given that there is no other person appropriate or willing to act as administrator. It is unfortunate, but unavoidable, that the Public Trustee will need to perhaps take some time to form the necessary familiarity with the matter to consider the advice of Talbot Olivier.
It is, as we have said, in the proposed represented person's best interests for the workers' compensation proceeding to be settled as soon as possible. The Tribunal will therefore write to the Public Trustee expressing the view of the Tribunal that the Public Trustee is requested to apply the resources necessary to be able to make a prompt decision in relation to the administration, and we will include such an indication in the orders that we will now publish.
Application for costs
Mr Porter has made an application on behalf of the father for the legal costs incurred in relation to this application to be paid out of the estate of the proposed represented person. Section 16(4) of the GA Act states that the Tribunal may, if satisfied that a party to proceedings commenced under that Act has acted in the best interests of the represented person, order that such costs relative to the proceedings as the Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
The discretion that is conferred by that subsection is not to be read independently of the Tribunal's general approach to costs under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which establishes the general approach of the Tribunal that each party should normally bear its own costs of proceedings.
The starting position in the Tribunal in guardianship and administration matters is that the parties bear their own costs. It has also been decided in a number of cases that the threshold of a party acting in the best interests of a represented person is not a difficult threshold to cross, although it must be crossed in order for the Tribunal to have a discretion.
We are satisfied that the father, in bringing this application for an administrator to be appointed, was acting in the best interests of his son, the proposed represented person. As we have said earlier and as we have found previously and found today, it is in the best interests of the proposed represented person for his workers' compensation proceeding to be settled. It is certainly in his best interests to have that matter brought to an end. It was necessary for there to be an application for an administrator in order for that to occur.
Although the general position in the Tribunal is that each party should pay its own costs, we consider that this case is unusual and that a costs order should be made under s 16(4) of the GA Act for the payment to the father of his reasonable costs for the proceeding by, or out of the assets of, the proposed represented person for three reasons.
The first is that we consider that the involvement of Talbot Olivier, and particularly Mr Porter, was important to assist the Tribunal to arrive at the appropriate outcome in relation to the application before us today. That is because Mr Porter has conducted the workers' compensation proceeding on behalf of the proposed represented person for some time and had obtained the offer of settlement in circumstances where it had been indicated to Mr Porter by Dr A at that time that the proposed represented person did not have the capacity to accept the offer of settlement. Mr Porter's involvement was, we consider, important to assist the Tribunal in this matter for that reason.
Secondly, the application that was brought before us today arises substantially out of the application that was made originally by the father in September 2012 and the s 17A application that we heard. The father made the application for an administrator for his son promptly after the offer of settlement was made and the advice of Dr A was given to Mr Porter about her view of the proposed represented person's lack of capacity. That necessitated the initial application for an administrator.
The proposed represented person had a right to seek review, and we heard that review. At that time, based on the evidence we had, we set aside the administration order, but in our reasons, we specifically said that if the settlement offer is not accepted promptly, then an application should be brought for the appointment of an administrator and dealt with, ideally, before the same panel. In effect, this application that we heard today was invited by the Tribunal at that point if the workers' compensation proceeding was not settled.
The third factor is that the father is not resident in Western Australia. While that would not normally or necessarily require there to be a local practitioner acting for a party, in the circumstances of this case, it is appropriate and was appropriate for the father to instruct Mr Porter, particularly having regard to his involvement in relation to the workers' compensation matter and the bringing of the initial and subsequent proceedings here in the Tribunal for the reasons that we have indicated.
So, for those three overlapping reasons, we consider that a limited costs order should be made.
Principles in relation to assessment of costs
We say 'limited' because the Tribunal's practice, in the unusual case that a costs order is made, is to assess those costs in a relatively robust fashion, and having regard to the Tribunal's overall obligation under s 9 of the SAT Act to minimise costs to the parties.
The Tribunal's general practice is to determine what work was reasonably necessary in order to carry out the task in respect of which costs are to be awarded and then apply as a guide as to the maximum amount that might be awarded the scale under the Legal Practitioners (State Administrative Tribunal) Determination 2012, which applies as the maximum amount that a lawyer can charge to a client in relation to work in the Tribunal if there is no costs agreement between the lawyer and the client.
While that scale does not apply in terms under s 16 of the GA Act or under s 87 of the SAT Act, it is referred to as a guide as to the maximum amount. The maximum allowable rate for a senior practitioner under that determination is $374. We consider that that should be applied as a reasonable guide as to the amount that should be awarded in relation to Mr Porter's time. We consider that three hours' time is reasonable, in the circumstances, to have brought this application and conducted it here in the Tribunal.
The application itself was a relatively simple document and involved the compilation of various previous documents. The matter took, now, about two hours here in the Tribunal today. We do not think that the letters of advice to the proposed represented person from Mr Porter should be included in the assessment of costs, as that advice was necessary in any case.
[Mr Porter sought leave to file a bill of costs and submissions in relation to the amount of costs before the Tribunal made a costs order in a particular amount. The Tribunal granted leave and made further programming orders as appears below. The Tribunal ultimately considered that it should publish written reasons based on the transcript for its decisions to appoint a limited administrator and to make an order for costs under s 16(4) of the GA Act, and written reasons in relation to the assessment of costs.]
Orders
The Tribunal makes the following orders:
1.The Public Trustee of is appointed limited administrator of the estate of the represented person with the following function:
to seek legal advice on behalf of the represented person and to bring actions, suits and other legal proceedings in the name of the represented person and, if appropriate, to settle the same.
2.The Public Trustee is requested to expedite the administration to enable it to consider whether to accept the settlement offer in relation to the workers' compensation proceeding on behalf of the represented person as soon as possible.
3.By 5 April 2013, if possible, and otherwise by 24 May 2013, Mr Porter is to file and give to the represented person a bill of costs and brief submissions as to the amount of costs sought, to be provided at the expense of Talbot Olivier. Within two weeks of receipt of these documents the represented person may file and, if so, must give to Mr Porter any submissions in reply.
4.The application for costs is reserved. That application will be dealt with in the form of a letter from the executive officer, briefly setting out the reasons of this panel.
Assessment of costs
On 8 April 2013, Mr Porter filed and served on the represented person a bill of costs for the father totalling $4,888.40, reduced to $4,000, and submitted that it is appropriate that these costs be deducted from the compensation to be paid to the represented person in the workers' compensation proceeding, if the Public Trustee agrees to the resolution of that matter.
The represented person did not file any submissions.
We determined the assessment of costs, in accordance with the costs order we foreshadowed in our oral reasons, entirely on the documents pursuant to s 60(2) of the SAT Act.
As we said in our oral reasons, the discretion under s 16(4) of the GA Act, to order that such costs relative to the proceedings as the Tribunal thinks fit be paid to a party in proceedings under the GA Act by, or out of the assets of, the represented person or the person in respect of whom the application is made, is not to be read independently of the Tribunal's general approach to costs under s 87 of the SAT Act. Similarly, the Tribunal's approach to the assessment of costs to be paid to a party by, or out of the assets of, the represented person or the person in respect of whom the application is made under the GA Act, is the same as its approach to the assessment of costs to be paid by a party to another party under s 87(2) of the SAT Act. In both cases, the Tribunal is guided by its objectives set out in s 9 of the SAT Act including in particular to 'minimise the costs to parties'.
In Medical Board of Australia and Costley [2013] WASAT 2 at [64] [66] the Tribunal said the following:
64As to the assessment of costs, the Tribunal said in [Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)] at [53]:
In relation to the amount or quantum of costs, the Tribunal's usual practice is to determine the amount of work which was reasonable and necessary to properly prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the Legal Practitioners (State Administrative Tribunal) Determination 2010 (Determination): J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [9] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASATִ125 (S) at [35] [36] and [47] [48]. The Determination prescribes the maximum amounts which can be charged without a written agreement as to costs with a client under s 282 of the LP Act. The Legal Costs Committee has not prescribed a scale of costs for the Tribunal in respect of party/party costs, because the Legal Costs Committee has recognised that 'the overriding philosophy of the Tribunal, as expressed through its enabling legislation, is that parties appearing before the Tribunal are to bear their own costs of proceedings': Legal Practitioners (State Administrative Tribunal) Report 2010 (WA) para 3b. The Determination is, therefore, not binding in the present case, but rather, is to be used as a guide as to the maximum rates which might be allowed on a party/party basis.
65These passages were referred to in the recent decision of the Tribunal in Medical Board of Australia and Woollard [2012] WASAT 209 (S) (Woollard). In that case, the Tribunal observed at [50] - [51]:
50The Tribunal's main objectives stated in s 9 of the SAT Act include to 'minimise the costs to parties'. As the Tribunal said in J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242 at [38]:
… [T]he Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceeding in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order.
51The Tribunal assesses costs 'in a relatively robust fashion', consistently with its statutory objectives: Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49]; see, for example, Law and Town of Vincent [2006] WASAT 263 (S). Generally speaking, 'any award should be approached in a broad fashion and should not have to descend into [an] inquiry into small items of expenditure': Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194 at [67].
66The approach by the Board to the assessment of costs is to look at what has been charged by its solicitors and counsel, and to apply a reduction in the amount sought to be recovered in relation to solicitors' costs. Other than that, in its submissions, the Board suggests that the reduction takes account of any excess in the charge rates over that that might be permitted under the Legal Practitioners (State Administrative Tribunal) Determination 2010 on a solicitor/client basis, and any potential double recovery of GST, the basis for the reduction is not clear. In our view, in matters of this nature, the preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion. That is the approach taken by the Tribunal in Woollard, and, with respect, we consider it a sound basis to approach the assessment of the quantum of costs in vocational matters. It is important that the policy behind the practice of the Tribunal in relation to costs in vocational regulatory matters does not lead to excessive and crushing costs claims beyond what a practitioner might reasonably expect to have to meet if the application against him or her is ultimately successful.
These principles also apply in relation to the assessment of costs where a costs order is made under s 16(4) of the GA Act. Applying these principles, and having regard to the bill of costs, we consider that the father's reasonable costs of the proceeding which should be awarded under s 16(4) of the GA Act is in the amount of $2,245.50, calculated as follows:
| Expenditure item | Number of hours | Practitioner | Amount |
| Obtaining instructions from the father and discussions with the Office of the Public Advocate and Public Trustee | 0.5 | Mr Porter (at $374/hr) | $187.00 |
| Drafting and filing SAT application | 2.0 | Ms Bailey (at $250/hr) | $500.00 |
| Telephone attendance with SAT about hearing date | 0.25 | Ms Bailey (at $250/hr) | $62.50 |
| Preparation for hearing | 1.0 | Mr Porter (at $374/hr) | $374.00 |
| Attendance at hearing | 3.0 | Mr Porter (at $374/hr) | $1,122.00 |
Costs order
We therefore make the following order:
1.Pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) costs relative to these proceedings assessed in the sum of $2,245.50 are to be paid to DB by or out of the assets of MJB.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
5
8
2