EA and KD, TA, LA, BA & VT
[2007] WASAT 175
•5 JULY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: EA and KD, TA, LA, BA & VT [2007] WASAT 175
MEMBER: MR J MANSVELD (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 5 JULY 2007
FILE NO/S: GAA 664 of 2006
BETWEEN: EA
Represented Person
AND
KD, TA, LA, BA & VT
Applicants
Catchwords:
Guardianship and administration - Application for legal costs from the represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Principle that parties bear their own costs - Whether principle may be displaced when legal assistance is necessary for the Tribunal to make a determination in the best interests of the represented person - Party's ability to pay is not a relevant consideration - Deterrence from making future applications not a relevant consideration - Award of costs can be made when the Tribunal is provided with information that it is unlikely to secure relying on its own processes alone - Section 16(4) does not apply to a represented person or proposed represented person
Legislation:
Guardianship and Administration Act 1990 (WA), s 16, s 16(4), s 64(1), s 65, s 97(1)(b), s 127, Sch 1 Pt B cl 13(2)(a)
Guardianship and Administration Act 2000 (Qld), s 82, s 127
State Administrative Tribunal Act 2004 (WA), s 5, s 9, s 32(1), s 32(2), s 32(4), s 35, s 87
Result:
The application by the represented person is dismissed
The application by KD, TA, LA, BA, & VT is allowed in part
Category: B
Representation:
Counsel:
Represented Person : Mr M Rogers
Applicants: Mr A Macknay
Solicitors:
Represented Person : Michael Rogers & Associates
Applicants: McCallum Donovan Sweeney
Case(s) referred to in decision(s):
A and ES [2005] WASAT 279
EA and KD, TA, LA, BA, & VT [2007] WASAT 3
GD and AD [2005] WASAT 203
LC and JS [2007] WASAT 127
Re ELF [2004] QGAAT 57
Re ERF [2005] QGAAT 62
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal received two applications for legal costs to be paid from the estate of a man (the represented person) whose estate had initially been found by the Tribunal to be in need of immediate protection and at a subsequent hearing of the Tribunal, had been found to be in need of formal administration.
An application for legal costs was made by the represented person himself and an application was made by his children. The children had been the applicants in the application for administration for the man heard earlier by the Tribunal (see EAand KD, TA, LA, BA, & VT [2007] WASAT 3).
The application by the represented person was dismissed because the Tribunal found that the section of the Guardianship and Administration Act 1990 (WA) under which the application was made did not apply to the legal costs of the represented person. The decision whether to pay his legal costs fell to the Public Trustee, firstly in the role given to him by the Tribunal to immediately protect his estate, and later in his role as formal administrator.
Costs were allowed in part, in the application made by the represented person's children.
In all the circumstances of the case, the Tribunal was satisfied that the legal assistance obtained by the children in respect of the assessment of the represented person's capacity provided the Tribunal with information that it was unlikely to secure relying on its own processes alone. The information about the represented person's capacity was critical to the Tribunal being able to come to its determination to appoint an administrator for the represented person.
It was appropriate therefore for there to be an award of costs to the children from the represented person's estate in respect of that aspect of the proceedings.
The Tribunal was not satisfied, however, that an order for costs should extend to the legal advice and representation the applicants obtained in respect of the balance of the proceedings.
An award of costs of $10 000 was made in respect of the application by the children.
Background
An application for administration was made for EA (the represented person) in April 2006 by his children. The represented person and his partner opposed the application and sought legal advice and representation. The applicants were also legally represented.
At a hearing on 18 April 2006 (first hearing), the Tribunal (constituted by a single member) made an order under s 65 of the Guardianship and Administration Act 1990 (WA) (GA Act). That order gave the Public Trustee the powers of a plenary administrator pending the determination of the question whether the represented person was someone for whom a declaration should be made under s 64(1) of the GA Act. Section 64(1) refers to the questions of whether a person has a mental disability, is unable to make reasonable judgments about their estate and is in need of an administrator. The application for administration was otherwise adjourned.
At a hearing on 3 October 2006 (second hearing), the Tribunal (constituted by three members) made a declaration under s 64(1) of the GA Act and appointed the Public Trustee as the represented person's plenary administrator.
Written reasons were delivered on 5 January 2007 and can be found at EA and KD, TA, LA, BA, & VT [2007] WASAT 3 (referred to below as EA).
The applications for costs
There are two applications for costs to be paid from the estate of the represented person, one by the represented person himself, (Michael Rogers & Associates, legal representative, (MRA)) and the other by the represented person's children, (McCallum Donovan Sweeny, legal representative, (MDS)).
The application by the represented person
The submission by MRA is that the represented person was entitled to seek legal assistance and without that assistance " … would not have been able to properly present his case including making all necessary arrangements for necessary medical reports to be obtained, producing witness statements etc and corresponding with solicitors acting for the Respondent's [sic] children."
In his role, under the order made by the Tribunal pursuant to s 65 of the GA Act and as administrator, the Public Trustee has paid the represented person's legal fees in the amount of $9600.25. MRA has advised the Tribunal, as of 6 June 2007, that $3905.00 remains outstanding in respect of the costs of those proceedings.
MRA submits that the reasonableness of his costs should be determined by the Public Trustee (under the s 65 order and as administrator), and "in principle, ruling only need be made [by the Tribunal]."
Reasons for decision
The application by the represented person
The Tribunal agrees with the submission of MDS (at par 3 of the written submission) that s 16(4) of the GA Act does not apply to an application for the legal costs of the represented person to be paid from his estate. The wording of that section does not contemplate such an application either at the time of the application for administration being made (as the person for whom the application is made) or when his status changed to that of a represented person.
The application by MRA is therefore dismissed. The decision as to whether the represented person's legal costs should be paid falls to the Public Trustee, in the first instance under the authority given to him in the order pursuant to s 65 of the GA Act, and currently in his role as the represented person's administrator.
The application by KD, TA, LA, BA and VT
In a written submission, MDS states that the majority of legal costs incurred by the applicants should be borne by the represented person's estate because he and his partner (PB) " … have adopted an adversarial role against the [a]pplicants, due largely to their misunderstanding of the nature of the proceedings": par 5.5. This is said to have resulted in significantly increased legal costs.
The professional fees (itemised invoices provided on 28 February 2007), amount to $35 251.01 with disbursements totalling $1141.12.
The represented person's alleged misunderstanding of the nature of proceedings was said to manifest in his belief that his children were intent on stealing his money and placing him in a nursing home.
The submission that the represented person adopted an adversarial role against the applicants appears to have two parts, the first being the opposition to the application for administration and the second being the circumstances surrounding the obtaining of a capacity assessment for the represented person, both before and after the first hearing.
MDS submits that prior to the application for administration being lodged with the Tribunal on 6 April 2006, the applicants had attempted to deal with the represented person and PB regarding their concerns about the mental health of the represented person who had recently sold his property and was due to receive approximately $305 000 at settlement. These attempts proved ultimately unsuccessful, MDS describing this as "the exhausting of alternative less restrictive options".
The applicants had concerns for some period of time that the represented person's mental health and memory were deteriorating (EA at [15]‑[22]).
MDS submits that the represented person and PB refused to cooperate in the obtaining of a capacity assessment. Before the first hearing, they are said to have rejected the applicants' request that the represented person be assessed by a specialist geriatrician. After the first hearing, they sought a referral to a specialist without the applicants' consent; refused to provide the applicants with a copy of the referral; refused to reveal the name of the geriatrician who ultimately assessed the represented person; refused to allow the applicants to make submissions to that specialist and rejected the applicants' request for a copy of the specialist's report.
MDS states that the represented person and PB refused to mediate in respect of the geriatrician's assessment and "[were] generally being obstructive, and refusing to cooperate in the production of the second specialist geriatrician's report, which led, it is submitted to three separate reports being produced": par 5.4(b).
MDS submits that the applicants held genuine concerns about the represented person's mental health since the death of their mother in 2003. Those concerns were ultimately that the represented person " … was not capable of making decisions with respect to the [p]roceeds [of the sale of his property] or his estate generally and that incorrect decisions could potentially render [the represented person] destitute and without funds to assist him later in life": par 4.4.
The applicants are said to have accepted the fact that the represented person is in a relationship with PB and they have no wish to directly interfere with his living arrangements.
Submission of PB and the represented person
On 29 January 2007, the Tribunal received a letter from PB and the represented person, with PB stating she was writing on behalf of the represented person.
The letter, as it refers to the costs of the proceedings before the Tribunal, states "[the applicants] instigated these proceedings and should pay for their own action".
The relevant legislation
The jurisdiction to make an order for costs in the matter before the Tribunal is found in the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the GA Act. If the two acts are in conflict the enabling act prevails (s 5 of the SAT Act).
Section 87 of the SAT Act states:
"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.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to ¾
(a)whether the party (in bringing or conducting the proceeding before the decision‑maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b)whether the party (being the decision‑maker) genuinely attempted to make a decision on its merits.
(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6)The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs."
Section 16 of the GA Act states:
"Costs
[(1)repealed]
(2)Where a person gives evidence or information ¾
(a)at the instigation of the State Administrative Tribunal; or
(b)at the instigation of a party and the State Administrative Tribunal considers that the circumstances are exceptional,
the Tribunal may approve payment to him of such amount as it thinks fit in or towards defraying any costs and expenses incurred by him in doing so, and an amount so approved shall be paid from moneys appropriated by Parliament for that purpose.
[(3)repealed]
(4)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.
(5)Nothing in this section limits any other power of the State Administrative Tribunal under the State Administrative Tribunal Act 2004."
The legal position
The decision to make an order for costs is ultimately at the discretion of the Tribunal.
In respect of a costs application under s 16(4) of the GA Act, it might be argued that the requirement that a party act in the person's best interests is not a difficult threshold to cross. For the most part, parties act in what they believe to be in the best interests of the person for whom an application has been made. This could include the applicant and any other party who has the wellbeing of the person at heart, and contributes in a helpful and positive way to the proceedings.
To read s 16(4) in this way, however, is to raise the possibility of an open-ended approach to an award of costs from the estate of a person for whom the GA Act applies which, in my view, is not the intent or scope of that section. The general discretion under s 16(4) should not be used independently of the cost regime provided for in the SAT Act and the overarching principle that parties bear their own costs. Section 16(4) should be read in light of the relevant provisions of the SAT Act.
In the sense that costs represent the legal costs of a party, the relevant question for the Tribunal to consider is under what circumstances is it appropriate for a party to seek legal advice and representation in contemplation of seeking a recovery of costs against the estate of a represented person or a person for whom an application has been made (proposed represented person).
It is, of course, the right of any party to seek legal advice and representation in proceedings under the GA Act. When does a situation arise, however, when those costs are appropriately borne by the (proposed) represented person's estate?
In the answer to that question, consideration must first be given to the environment in which the Tribunal operates.
Section 9 of the SAT Act sets out the main objectives of the Tribunal. They are to achieve the resolution of questions, complaints or disputes, to make review decisions, fairly and according to the substantial merits of the case; to act as speedily, with as little formality and technicality as is practicable, to minimize the costs to parties; and to make appropriate use of the knowledge and experience of Tribunal members.
The Tribunal is not bound by the rules of evidence and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32(2)). The Tribunal may inform itself on any matter as it sees fit (s 32(4)). The Tribunal is bound by the rules of natural justice (s 32(1)).
The above are commonly described as representing the inquisitorial character common to tribunals. Factors which are said to signify this inquisitorial character include: a duty to inquire, the ability to inform itself, the power to compel the production of witnesses and documents, the discretion to determine its own procedure, the informality of the hearings, the absence of the obligation to abide by the rules of evidence, the requirement to provide fair process, the ability to make a decision on the papers, the need for the proceedings to be reasonably prompt, the absence of the burden of proof on the parties, the requirement for the standard of proof that the Tribunal be satisfied as to its decision and the absence of legal representation for parties and their right to self‑representation (Bedford, N and Creyke, R, Inquisitorial Processes in Australian Tribunals AIJA, Melbourne, 2006 at page 15).
The Tribunal aims to make proceedings as accessible as possible to the parties (see for example, the Tribunal's Practice Note 9 "Proceedings under the Guardianship and Administration Act 1990"). Legal representation is not usually required at hearings of the Tribunal in the GA Act jurisdiction because the information necessary to make a determination is generally secured by the application and hearing processes alone. In the GA Act jurisdiction moreover, the Tribunal is able to refer an application to the Public Advocate for independent investigation, report and advocacy in the best interests of the person for whom the application is made (s 97(1)(b)).
Another important aspect of the environment in which the Tribunal operates in the GA Act jurisdiction is that the proceedings are not in the nature of a civil dispute between parties (although there may be conflict between parties) but rather the most common question to be decided is whether the person the subject of the application is in need of a substitute decision‑maker; a guardian for personal decision‑making and an administrator for financial decision‑making. The focus of the proceedings is the best interests of that person and if there is conflict or differing opinions then it is generally about matters such as the facts of the application, the person's capacity and/or the suitability of proposed guardians and administrators. There may also be situations where a party will wish to respond to adverse allegations made by another party.
This being the case, those aspects of the common law in civil disputes that refer to the principle of the "cost following the event" are of limited application.
What relevance does all of this have to an application for costs under s 16(4) of the GA Act? The starting position is that a person should be able to make an application for guardianship and administration under the GA Act for another person without legal representation, with a reasonable belief that the Tribunal's processes, as they play out in the GA Act jurisdiction, enable a best interests determination to be made. Even if such a determination cannot be made at a first hearing, the Tribunal can adjourn to seek further information from the parties, third parties (s 35 of the SAT Act) or the Public Advocate.
It is nevertheless the case that the GA Act contemplates the possibility of an order for costs from the estate of a (proposed) represented person. If the above reasoning is correct, then the circumstances in which such an order is likely to be made would be when an application falls outside the area of expectation that the Tribunal, by the inquisitorial nature of its proceedings, is able to make a correct and preferable decision in the best interests of the person under disability, without parties requiring legal input. Given what I have described above as the Tribunal's processes, those circumstances should occur infrequently.
The decided cases are few. In GD and AD [2005] WASAT 203, the Tribunal, in deciding not to approve the payment of legal costs from the estate of the represented person, found that the "good intentions" of the parties seeking costs was insufficient reason to make an order. In exercising its discretion, the Tribunal considered the following; [69]:
•the parties seeking costs had attended a previous Tribunal hearing and therefore " … understood that hearings are conducted in an informal and non threatening manner generally without legal representation";
•the question of the represented person's capacity was not at issue;
•there was no "real complexity" in the represented person's estate; and
•the conflict between the parties seeking a costs order (two brothers) went beyond matters dealt with at the hearing.
In A and ES [2005] WASAT 279, the Tribunal made a costs order under s 16(4) because it was satisfied that the applications were made in the best interests of the represented person and " … [because of] the circumstances surrounding the revocation of the joint EPA, and the size and complexity of the estate": [21]. The award of costs was for a "reasonable amount for obtaining advice and being represented at the … hearing". The Tribunal did not consider it appropriate to allow costs incurred " … in negotiating with the other parties, and preparing for and attending the subsequent mediation and hearings": [23].
The Tribunal found A and ES, with which I agree, that a party's financial ability to pay is not a relevant consideration under s 16(4) ([18]) and that a costs order under s 16(4) should not be influenced by the consideration of whether a party should be "deterred" from making future applications as this can be dealt with under s 87 of the SAT Act: [19].
There is no exact equivalent to s 16(4) in other Australian jurisdictions. There is, however, a recently decided case by the Queensland Guardianship and Administration Tribunal (Queensland Tribunal) in which legal costs were allowed from the estate of a represented person. The case, Re ERF [2005] QGAAT 62, provides some insight into what factors might be taken into account when contemplating such a costs order.
Under s 127 of the Guardianship and Administration Act 2000 (Qld) (Queensland Act), each party must bear their own costs unless there are exceptional circumstances such that an applicant should pay an active party's costs and the costs of the Queensland Tribunal. In the departure from this regime in Re ERF, the Tribunal used its discretion under s 82 of the Queensland Act which allows it to make declarations, orders or recommendations or give directions or advice in relation to administrators: [18].
In exercising its discretion to award costs, the Queensland Tribunal considered whether there was an obligation to use ERF's funds to reimburse the applicant for legal costs incurred.
In respect of this question, the Queensland Tribunal found that the application was complex with substantial conflict between the applicant daughter and son of ERF, the latter being his attorney for personal and financial matters until revoked by the Queensland Tribunal: [8] and [22]. The level of conflict was " … at the extreme end of the range normally experienced by the [Queensland] Tribunal in its work. Both parties' cases were enhanced at the hearing by presentation through legal representation": [7].
The Queensland Tribunal found that in making the applications and bringing to the attention of the Queensland Tribunal the actions of the then financial attorney (the son), the applicant had conferred a significant benefit on ERF by having the son's appointment terminated. ERF had also been accorded a significant financial benefit as a consequence of the applications and Tribunal decision (the Queensland Tribunal had earlier found that there had been a diminution of ERF's estate while under the management of the son (see Re ELF [2004] QGAAT 57)).
The applicant daughter was found to have secured no pecuniary advantage from the proceedings and in fact had put herself at financial risk in making the application: [25], [26] and [29].
It seems to me that what can be derived from the costs regime envisaged by the SAT Act and GA Act read together with the decided cases (although of variable relevance), is the articulation of a number of areas of consideration for the Tribunal when using its discretion in the making of a determination under s 16(4) of the GA Act. This may include situations 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;
•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;
•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;
•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;
•the application is contentious and unique; for example sterilization; and
•the application raises a special point of law.
These areas of consideration provide some guide to what "best interests" might include in the context of a determination by the Tribunal under s 16(4) of the GA Act. They cannot, however, provide a fetter on the ultimate discretion of the Tribunal to make a decision about costs on the facts of the particular case.
The application by KD, TA, LA, BA and VT
In making the order under s 65 of the GA Act on 18 April 2006, the Tribunal found that the represented person's estate was in need of immediate protection pending the determination of whether he was unable, by reason of a mental disability, to make reasonable judgments about all or part of his estate and was in need of an administrator (s 64(1)).
The main contention between the applicants and the represented person (and PB), was the question of his ongoing ability to make reasonable judgments in respect of his estate. By virtue of the s 65 order, the Tribunal accepted that the available information at the first hearing was not sufficient to determine the question of the represented person's capacity.
It appears that a specialist assessment of the represented person's capacity was contemplated, given that the most current medical information at the time of the first hearing was that of Dr RT, a general practitioner, who had assessed the represented person as able to make " … rational decisions with regard to his health, living situation and financial affairs". The represented person was also considered capable by Dr RT of executing an enduring power of attorney (EA at [49] and [50]). The Tribunal had, by an order made on 13 April 2006, also secured the relevant medical records in respect of the represented person from his former general practitioner, Dr PH, who in January 2005 had noted " … dementia emerging" (EA at [47]).
The conduct of the specialist assessment appears to have taken place almost exclusively between the applicants and the represented person by way of their legal representatives (and it would appear in an adversarial manner). The Tribunal wrote to the parties on 22 June 2006, stating that "it would assist the Tribunal if specialist medical evidence regarding [the represented person's] health and capacity to manage his financial affairs could be lodged with the Tribunal no later than 19 September 2006".
The Tribunal, by an order made on 28 July 2006, provided MDS with Dr RC's report of 10 July 2006 after MRA, on behalf of the represented person, had requested it not be released.
There is, in my view, justification for the contention that without legal assistance the specialist assessment by Dr RC, a geriatrician, would not have provided the nuanced information about the represented person's capacity that was finally made available to the Tribunal (EA at [61] and [62]).
Dr RC saw the represented person a number of times, provided three reports and gave oral evidence at the second hearing. The first of the reports was made on 10 July 2006 (EA at [51]). The assessment in that report was enhanced by the receipt of written statements provided by the applicants through their solicitor (the statements were consistent with the assessment) and formed part of the second report dated 17 September 2006 (EA at [52]). The final report of Dr RC, dated 26 September 2006, had the benefit of a statement from the represented person and PB, which enabled him to opine as follows:
"The other significant factor is that [the represented person] has not made any comments to refute the statements of his family members. He has relied on [PB] to act for him. I suspect that he has insufficient memory of the events and a grasp of the facts to do so. If the contention that he is fully capable is considered, then it seems natural that he would make some attempt to respond to the statement of his family himself rather than relying on others to do so. This adds further to the view that [the represented person] needs assistance with matters that require higher cognitive function." (EA at [55] to [58])
In Dr RC's first report, he identified mild cognitive deficits in the represented person but which might not affect his ability to manage day‑to‑day (non‑complex) finances and a bank account. By the time of his final report, he stated:
"In my letter to [Dr RT] dated 10 July, I stated that I believed [the represented person] capable of managing a bank account. I am less confident of that now given the evidence of the family. I attach weight to these statements because they are most consistent with my own views of [the represented] person from the office visits." (EA at [57])
Dr RC had also become less confident of his earlier assessment that the represented person was capable of executing an enduring power of attorney (EA at [58]).
Taking all of the above into account, I am satisfied that the legal assistance obtained by the applicants, in respect of the assessment of the represented person's capacity between the first and second hearings, provided the Tribunal with information that it was unlikely to secure relying on its own processes alone. The information about the represented person's capacity was critical to the Tribunal being able to come to its determination to appoint an administrator for the represented person; it was a complex matter and required Dr RC to give oral evidence in addition to his written reports.
It is appropriate therefore for there to be an award of costs to the applicants from the represented person's estate in respect of this aspect of the proceedings.
I am not satisfied, however, that an order for costs should extend to the legal advice and representation the applicants obtained in respect of the balance of the proceedings.
It is my view that apart from the question of the represented person's capacity, the proceedings, whilst in conflict, otherwise were able to be managed within the inquisitorial processes of the Tribunal.
Given their concerns and conduct, I am satisfied that the applicants would have ultimately lodged an application for administration even if legal advice had not been sought. They were able to attend the first and second hearings, and give oral evidence in addition to their written statements. The order of the Tribunal under s 65 of the GA Act was the likely outcome given the evidence before it at the first hearing, namely the assessment of Dr RT, the earlier assessment of Dr PH (which was in conflict with that of Dr RT) and the evidence of the applicants, the represented person and PB.
The applicants made no allegations of abuse or misappropriation in respect of the represented person's finances but rather expressed a concern about his vulnerability to the use of the settlement funds contrary to his long‑term best interests. As I have already indicated, I am satisfied that the immediate protection of the represented person's estate would have been secured with the information available to the Tribunal through its inquisitorial processes.
Despite the conflict between the applicants and the represented person (and PB), I am not satisfied that it was of such magnitude that it would have prevented the presenting of evidence and submissions to the Tribunal had legal assistance not been available. The level of conflict was not exceptional in the range generally experienced by the Tribunal in its work.
The application before the Tribunal was not unique and did not raise a special point of law.
Aside from that part of the proceedings identified as referring particularly to the assessment of the represented person's capacity (between the first and second hearings), the application for costs should not succeed.
Quantum of costs
As to the quantum of the costs that should be awarded, an examination of the accounts of MDS covering the period after the first hearing and to (but not including) the second hearing reveals fees of approximately $14 500 and disbursements of $500 which includes the cost of a report by Dr RC at $200.
I am satisfied that an award of $10 000 is, in all the circumstances, fair, having decided that the costs of $14 500 should be reduced in respect of an estimate of costs relating to an application for guardianship considered by the applicants between the first and second hearings and an estimate of the costs applying to the ongoing hearing process.
In my view, it is essential for the legal profession to advise clients of the general principle in the Tribunal's jurisdiction that parties bear their own costs and that an award of costs is the exception rather than the rule. This is no less the case in an application under s 16(4) of the GA Act as it is in an application for "party to party" costs under the SAT Act. In this respect, the scope of s 16(4), which on its face appears to have a wide reach, must be read down to reflect that principle (see LC and JS [2007] WASAT 127).
Orders
1.The application by the represented person:
Pursuant to an application under s 16(4) of the GA Act, it is ordered that the application be dismissed.
2.The application by KD, TA, LA, BA and VT:
Pursuant to an application under s 16(4) of the GA Act, it is ordered that an award of costs of $10 000 be paid from the estate of the represented person to the applicants.
I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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