G and L and ANOR
[2007] WASAT 232
•6 SEPTEMBER 2007
G and L & ANOR [2007] WASAT 232
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 232 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:270/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) | 6/09/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Respondents to pay applicant's costs of $4000 pursuant to s 87(1) of the State Administrative Tribunal Act 2004 (WA) Application for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) dismissed | ||
| B | |||
| PDF Version |
| Parties: | G L R |
Catchwords: | Administration Guardianship Application for review of administration order dismissed Application for injunction dismissed Costs sought under s 87 of the State Administrative Tribunal Act 2004 (WA) Costs also sought under s 16(4) of the Guardianship and Administration Act 1990 (WA) Trustees Order made for costs under s 87(1) of the State Administrative Tribunal Act 2004 (WA) Application for costs under Guardianship and Administration Act 1990 (WA) dismissed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 16(4) State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 427 State Administrative Tribunal Act 2004 (WA), s 87(1) |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : G and L & ANOR [2007] WASAT 232 MEMBER : MS J TOOHEY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 6 SEPTEMBER 2007 FILE NO/S : GAA 270 of 2007
- GAA 271 of 2007
GAA 272 of 2007
GAA 273 of 2007
- Applicant
AND
L
R
Respondents
Catchwords:
Administration - Guardianship - Application for review of administration order dismissed - Application for injunction dismissed - Costs sought under s 87 of the State Administrative Tribunal Act 2004 (WA) - Costs also sought under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Trustees - Order made for costs under s 87(1) of the State Administrative Tribunal Act 2004 (WA) - Application for costs under Guardianship and Administration Act 1990 (WA) dismissed
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Legislation:
Guardianship and Administration Act 1990 (WA), s 16(4)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 427
State Administrative Tribunal Act 2004 (WA), s 87(1)
Result:
Respondents to pay applicant's costs of $4000 pursuant to s 87(1) of the State Administrative Tribunal Act 2004 (WA)
Application for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) dismissed
Category: B
Representation:
Counsel:
Applicant (in personal capacity) : Mr S Scott
Applicant (as administrator) : Mr E Scarffe
Respondents : Self-represented
Solicitors:
Applicant (in personal capacity) : Stables Scott
Applicant (as administrator) : Clement & Co Lawyers
Respondents : Self-represented
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 In 2006, the Tribunal, differently constituted, appointed G plenary administrator and limited guardian for his wife, J. The Tribunal recognised at the time that G had a potential conflict of interest in that he had indicated his intention to make a substantial claim against a trust in which J had an interest. He had not commenced proceedings and the Tribunal directed him to seek review of his appointment in the event that his claim could not be settled.
2 Subsequently, L, J's daughter by a former marriage, sought review of the orders. L maintained that G's interests conflicted with J's by reason of his claim against the trust, that he had failed to seek review as directed, and that it was in her mother's best interests that she be appointed in place of G. Prior to the Tribunal convening a hearing in respect of L's applications for review, she sought an injunction restraining G, as administrator of J's estate, from incurring any further legal costs on J's behalf. That application was dismissed by the Tribunal.
3 L was subsequently joined in the applications by her brother, R. Prior to the hearing of the applications, L and R withdrew their application for review of the guardianship order. On 10 April 2007 the Tribunal gave the applicants leave pursuant to s 87(5) of the Guardianship and Administration Act 1990 (WA) to seek review of the administration order. On the same date it made orders to the effect of confirming the appointment of G as plenary administrator for J, subject to certain directions to him.
4 G then sought orders pursuant to s 87(1) of the State Administrative Tribunal Act 2004 (WA) and s 16(4) of the Guardianship and Administration Act 1990 (WA) that the costs he had incurred in his personal capacity and in his capacity as administrator of J's estate be paid by L and by R, who had joined with her in the application.
5 In the application under s 87(1) of the State Administrative Tribunal Act 2004 (WA), the Tribunal decided that the application for review was unnecessary and that L and R had acted unreasonably in bringing it. It was reasonable in the circumstances for G to have sought legal advice and representation. The Tribunal ordered L and R to pay $4000, being half of G's costs as submitted.
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6 The application under s 16(4) of the Guardianship and Administration Act 1990 (WA) was dismissed because it sought orders against trustees in whose sole discretion it was whether to meet any claim for payment.
Background
7 These reasons concern two applications for costs arising out of proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act).
8 On 23 February 2006 the Tribunal appointed G plenary administrator for his wife, J. At the time, G had indicated his intention to make a substantial claim against a trust in which J had an interest. The Tribunal recognised that, in being appointed plenary administrator for J, G had a potential conflict of interest. He had not at that time commenced proceedings and the Tribunal directed him to seek review of his appointment in the event that his claim could not be settled.
9 The Tribunal also appointed G limited guardian for J with authority to consent to treatment and health care. Both appointments were for five years.
10 It has not been in dispute at any point in the proceedings that J is no longer capable of making decisions in relation to her person or her financial affairs.
11 On 14 February 2007 L, who is J's daughter from a previous marriage, applied for review of both appointments. She was subsequently joined in the application by her brother, R. The applicants stated that G had made a claim for $217 674 for money given to J, or paid on her behalf, for "shared lifestyle expenses" over the previous ten years and that he had advised his intention to recover that amount with interest by legal action against a family trust and trustee company set up by J. L and R submitted that there was a conflict of interest between G's capacity as plenary administrator and his personal capacity. L sought orders appointing herself limited administrator to exercise J's powers in relation to the trusts and a trustee company and to sign "any necessary medical or other rebate for treatment forms".
12 On 6 March 2007 the Tribunal contacted parties by telephone to advise that the applications would be heard on 10 April 2007. By letter to the Tribunal dated 7 March 2007, L sought an order for an interim injunction preventing G, as administrator, from incurring further legal fees
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- on J's behalf. L asserted that G had already incurred fees in excess of $25 000 since the commencement of the proceedings; in particular, she was seeking revocation of the guardianship order on the ground that there was no need for the appointment and there was no need to instruct a solicitor in that matter.
13 On 15 March 2007, for reasons delivered orally at the conclusion of the hearing, Judge Eckert dismissed the application for an injunction. She noted that there was considerable conflict between the parties and commented that G would need to seek his own legal advice where the matter was personal, and that he would need legal advice and assistance, as administrator, in the administration of J's estate.
14 On 27 March 2007 L advised the Tribunal that she wished to withdraw her application for review of the guardianship order. It is not necessary to detail the reasons here other than to say that the conflict which had given rise to that application had apparently been resolved between the parties. On 27 March 2007 the Tribunal granted leave to withdraw.
15 The application for review of the administration order was heard by the Tribunal on 10 April 2007. L, who is a solicitor, represented herself and her brother. G was represented in his personal capacity by solicitors and in his capacity as administrator by separate solicitors who also represented J.
16 Argument at the hearing went principally to whether or not the potential claim by G against the trust in which J has an interest had crystallised such that his obligation to comply with the Tribunal's direction made on 23 February 2006 to seek review of his appointment had arisen. It was apparent that it had not. Further, the Tribunal was satisfied that G had previously given, and was willing to give again, undertakings not to pursue any claim while J was still alive. The Tribunal heard also that directors of the trust, who had previously indicated an intention to resign, were willing to continue in that role, thereby protecting J's interests.
17 The Tribunal delivered oral reasons at the conclusion of the hearing and made orders to the effect of confirming the appointment of G as plenary administrator for J, subject to certain directions to him.
18 G now seeks payment of legal costs incurred in his personal capacity pursuant to s 87(1) of the State Administrative Tribunal Act 2004 (WA)
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- (SAT Act) and of legal costs incurred in his capacity as administrator pursuant to s 16(4) of the GA Act.
Relevant legislative provisions
19 Section 87 of the SAT Act relevantly provides:
"(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.
…
(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."
20 Section 16(4) of the GA Act provides:
"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."
21 Subsection (1) of s 16 was repealed when the Tribunal commenced in January 2005: State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA); s 427. It had provided, in terms similar to s 87 of the SAT Act, that parties to proceedings under the GA Act bear their own costs.
Costs sought under s 87 of the State Administrative Tribunal Act 2004
22 G seeks an order pursuant to s 87 of the SAT Act that L pay costs incurred in his personal capacity in the sum of $8150.
23 G maintains that the general rule in s 87(1) of the SAT Act that parties to proceedings before the Tribunal bear their own costs should not apply here because, at the time of the order on 23 February 2006, G had given notice of his potential claim and the orders recognised and provided
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- for this; L and R were aware that he was prepared formally to undertake not to issue proceedings in relation to that claim during J's lifetime but they proceeded nevertheless with their application, making it necessary and reasonable for him to be represented. G maintains that the application was brought unreasonably and has unnecessarily required him to have legal representation in his personal capacity.
24 In response, L and R say it was reasonable to bring the application in respect of the administration application. They dispute the claim that they were aware that G was prepared to undertake not to issue proceedings; he had indicated his intention to proceed unless the claim could be agreed and indicated his willingness to give an undertaking only the day before the Tribunal hearing. They say they honestly believed a conflict of interest existed and that J's interests needed protecting.
Costs sought under s 16(4) of the Guardianship and Administration Act 1990
25 The second application seeks an order pursuant to s 16(4) of the GA Act for costs incurred by G in his capacity as plenary administrator and limited guardian for J including costs incurred in relation to the application for an injunction. G seeks an order that costs in the amount of $18 668.10 be paid out of J's estate by way of a direction by the Tribunal to the trustees of the trust in J's name.
26 G submits that the application for review of the guardianship order had little prospect of success and that this is borne out by the applicants' withdrawal of that application; further, that the application for an injunction was dismissed. It is further submitted that the application for review would have been necessary only if the directors of the trust, who had previously indicated their intention to resign, in fact resigned; as they had decided to continue in their role, no issue arose. In these circumstances, G submits, L and R persisted in their application unnecessarily.
27 It is submitted that G has acted at all time in J's best interests and that he needed legal representation because L is herself a lawyer.
28 In response, L and R maintain it was reasonable to seek review of the guardianship order. In relation to the administration application, their submissions were similar to those already referred to. Moreover, they maintain that the excessive legal costs already incurred by G made it necessary to seek an injunction preventing him from further depleting J's assets.
(Page 8)
Reasons for decision
29 In relation to the application for costs under the SAT Act, the Tribunal accepts that G had made statements to the effect that he intended to pursue his claim against the trust. It is also true that the order made on 23 February 2006 appointing G administrator did not make entirely clear at what point he became obliged to seek review of his appointment. However, it could not be said, at the point at which L and R made their application for review, that the application was necessary in order to protect J's interests. No proceedings had been instituted and, until they had, it was open to G to continue as administrator without seeking review. Unfortunately, the conflict between the parties apparently made sensible discussion about matters virtually impossible.
30 In the circumstances, it was not reasonable for L and R to bring the application for review. Further, although L acted in her personal capacity, she had the benefit, as a solicitor, of her own legal expertise. It was not unreasonable for G to seek advice and have representation.
31 On the other hand, although the potential conflict of interest arose out of G's personal capacity and his capacity as administrator, the application for review was not against him personally: the proceedings were essentially concerned with G's conduct as administrator and with J's best interests.
32 In the circumstances the Tribunal considers it appropriate that L and R meet half of G's costs as submitted and orders them to pay $4000.
33 In relation to the claim pursuant to s 16(4) of the GA Act, it was not unreasonable for G to seek advice and representation as administrator of J's estate. The application for an injunction was out of the ordinary in proceedings under the GA Act. There was intense conflict between the parties and L had the benefit of being a solicitor herself.
34 On the other hand, while the proceedings were made more complex by the conflict, the issues were not themselves particularly complex. It was essentially a question of fact as to whether or not any conflict of interest had crystallised; G was prepared to give a formal undertaking as to his claim; and the decision of the directors to stay on in their positions made things relatively simple. For this reason the costs sought by G appear out of proportion to the proceedings themselves.
35 However, the application for an order under s 16(4) appears to be based on the notion that the funds in the trust, being held for J's benefit,
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- are her assets. It is not appropriate to make the directions sought and order the trustees to meet G's costs. The trustees are the legal owners of the trust property and hold it for J's benefit subject to the terms of the trust. It is in their discretion as to whether the costs should be paid. While it would seem reasonable that at least some of the costs be met by the trust because G acted in J's best interests, the Tribunal will not make that order.
Orders
36 The Tribunal makes the following orders:
1. L and R are ordered to pay costs in the amount of $4000 pursuant to s 87(1) of the State Administrative Tribunal Act 2004 (WA).
2. The application for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) is dismissed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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