EBF and DMW

[2008] WASAT 236

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   EBF and DMW [2008] WASAT 236

MEMBER:   MR J MANSVELD (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   10 OCTOBER 2008

FILE NO/S:   GAA 279 of 2008

BETWEEN:   EBF

Applicant

AND

DMW
Respondent

Catchwords:

Guardianship and administration - Application for legal costs to be paid from the represented person's estate - Principle that parties bear their own costs - That principle may be overturned in certain circumstances - Applicant in a position not dissimilar to the majority of applicants who appear before the Tribunal - Applicant entitled to legal representation to protect her own interests - Application dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(4), s 97(1)(b)
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 is dismissed

Category:    B

Representation:

Counsel:

Applicant:     N/A

Respondent:     N/A

Solicitors:

Applicant:     N/A

Respondent:     N/A

Case(s) referred to in decision(s):

A and ES [2005] WASAT 279

GD and AD [2005] WASAT 203

ReELF [2004] QGAAT 57

Re ERF [2005] QGAAT 62

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The daughter of an elderly woman (now deceased) made an application for her legal costs to be paid from the woman's estate.

2. The daughter had applied to the Tribunal for a guardian and administrator to be appointed for the woman.  The daughter and her brother were in disagreement about the management of the woman's estate which had lead to the bank accounts of the woman being frozen.

3. In all the circumstances of the case, it could not be said that the legal assistance obtained by the daughter justified her legal costs being paid from the woman's estate.  In respect of the proceedings she was in a position not dissimilar to the majority of applicants and parties that appear before the Tribunal without legal assistance.

4. Although the daughter had every right to seek legal advice to protect her interests, it was not considered necessary to the final determination of the Tribunal which was to make a decision in the best interests of DMW.

5. In dismissing the application for costs, the Tribunal took the view that it should not depart in this case from the principle that parties bear their own costs in proceedings.

Background

1. These reasons relate to an application for costs under s 16(4) of the Guardianship and Administration Act 1990 (WA) (GA Act). The costs (legal fees) were incurred in the proceedings of guardianship and administration for DMW.

2. The application for costs has been made by EBF, daughter of DMW and applicant in the guardianship and administration proceedings.

3. EBF is asking that her legal fees of $1,693 be paid from the estate of DMW.

4. At the time of the hearing for the guardianship and administration applications, DMW was a woman of 84 years of age and living…