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…

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 DB and MJB

Details

AGLC: DB and MJB [2013] WASAT 73
Case: [2013] WASAT 73
Decision Date: 3 MAY 2013

CaseChat Overview and Summary

The case of DB and MJB involved the dispute regarding the settlement of workers' compensation proceedings and the associated costs. The parties included DB, who was the subject of a guardianship and administration order, and MJB, who was appointed as DB's legal representative. The matter was brought before the Supreme Court of Western Australia. The primary concern was whether the costs related to the settlement of the workers' compensation proceedings could be ordered to be paid out of the assets of DB, considering his mental disability and the implications under the Guardianship and Administration Act 1990 (WA).

The court had to determine whether DB, who was under a guardianship and administration order, had the capacity to make decisions about the settlement of the workers' compensation proceedings. Additionally, the court needed to assess whether the costs associated with the settlement should be charged against DB's assets. This required careful consideration of the statutory framework, particularly section 16(4) of the Guardianship and Administration Act 1990 (WA), which deals with the assessment of costs in such circumstances.

The court found that DB did not have the capacity to make decisions about the settlement of the workers' compensation proceedings due to his mental disability. Consequently, the court held that the costs associated with the settlement should be borne by the estate of DB, in accordance with section 16(4) of the Act. The court emphasised the need to protect DB's interests and ensure that any decisions made on his behalf were in his best interests. The reasoning was grounded in the statutory provisions and the principles of guardianship and administration.

The final orders of the court confirmed that the costs associated with the settlement of the workers' compensation proceedings were to be charged against DB's assets. This decision was based on the findings of incapacity and the statutory requirements for the assessment of costs under the Guardianship and Administration Act 1990 (WA).

Orders