EA and KD, TA, LA, BA & VT - [2007] WASAT 175

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…

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 EA and KD, TA, LA, BA & VT

Details

AGLC: EA and KD, TA, LA, BA & VT [2007] WASAT 175
Case: [2007] WASAT 175
Decision Date: 5 JULY 2007

CaseChat Overview and Summary

The case of EA and KD, TA, LA, BA & VT involved an application for legal costs from the represented person's estate under section 16(4) of the Guardianship and Administration Act 1990 (WA). The dispute centred around whether the principle that parties bear their own costs could be displaced when legal assistance is necessary for the Tribunal to make a determination in the best interests of the represented person. The ability of the party to pay or the deterrence from making future applications was not considered relevant in this context. Instead, the focus was on whether an award of costs could be made when the Tribunal is provided with information that it is unlikely to secure relying on its own processes alone.

The court had to determine if section 16(4) applied to a represented person or proposed represented person. The key legal issue was whether the principle of parties bearing their own costs could be set aside when legal assistance is essential for the Tribunal to make a decision in the best interests of the represented person. It was established that the represented person's or proposed represented person's ability to pay or the deterrence from making future applications were not relevant considerations in this scenario. Instead, the court had to decide if an award of costs could be granted when the Tribunal is given information that it is unlikely to obtain on its own.

The court ruled that the principle of parties bearing their own costs could indeed be set aside when legal assistance is necessary for the Tribunal to make a determination in the best interests of the represented person. The ability to pay or deterrence from making future applications was not a relevant consideration. The court held that an 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. It was also clarified that section 16(4) does not apply to a represented person or proposed represented person.

The final orders were that the application for legal costs from the represented person's estate was granted, subject to the terms and conditions set out in the judgment. The court emphasised that the principle of parties bearing their own costs could be set aside when necessary for the Tribunal to make a determination in the best interests of the represented person, and that the represented person's or proposed represented person's ability to pay or the deterrence from making future applications were not relevant considerations in this scenario.

Orders