GD - [2022] WASAT 33 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   GD [2022] WASAT 33
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   31 JANUARY 2022
DELIVERED          :   31 JANUARY 2022
FILE NO/S:   GAA 4305 of 2021

MD
Applicant
SD
First Interested Party
GD
Proposed Represented Person

FILE NO/S: GAA 463 of 2022

MD
Applicant
SD
First Interested Party
GD
Proposed Represented Person

Catchwords:

Guardianship and Administration Act 1990 (WA) - Application to revoke or vary enduring power of administration - Application to appoint a guardian and administrator - Applications to issue summonses for the production of further evidence - Responsive applications to dismiss the proceedings under s 47 of the State Administrative Tribunal Act 2004 (WA) - Proceedings determined substantively - Proceedings dismissed - Discretion to award costs - Conduct and merit of the proceedings - Costs awarded

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43(1)(b), s 64(1)(a), s 107, s 109, s 110, s 110J, s 110N
State Administrative Tribunal Act 2004 (WA), s 9, s 32, s 47, s 47(1), s 47(2), s 49, s 51(1), s 66, s 87, s 87(2), s 87(3)

Result:

Applications dismissed

Category: B

Representation:

GAA 4305 of 2021

Counsel:

Applicant	:	In Person
First Interested Party	:	Mr L Barry
Proposed Represented Person	:	Ms Jillian Saint

Solicitors:

Applicant	:	N/A
First Interested Party	:	Vibe Legal Pty Ltd
Proposed Represented Person	:	Ms Jillian Saint

GAA 463 of 2022

Counsel:

Applicant	:	In Person
First Interested Party	:	Mr Leo Barry
Proposed Represented Person	:	Ms Jillian Saint

Solicitors:

Applicant	:	N/A
First Interested Party	:	Vibe Legal Pty Ltd
Proposed Represented Person	:	Ms Jillian Saint

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

EW [2010] WASAT 91
FY [2019] WASAT 118; (2019) 98 SR (WA) 190
GA and EA and GS [2013] WASAT 175
GB [2020] WASAT 61 (S)
GG [2021] WASAT 133
KS [2008] WASAT 29
Legal Profession Complaints Committee and Khosa [2019] WASAT 143
Medical Board of Western Australia and Kyi [2009] WASAT 22
MS [2020] WASAT 66
PHQ and LPQ [2015] WASAT 5
PT [2020] WASAT 147
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Riemann & Riemann [2017] FamCA 318
RK [2020] WASAT 53 (S)
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
SM [2015] WASAT 132
WD [2022] WASAT 12
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

On 31 January 2022, I made orders dismissing the applications in these proceedings, and ordering the applicant to pay certain of the costs incurred by the proposed represented person, GD, and the first interested party, SD. I indicated that I would provide written reasons for those decisions, which reasons are set out below.

Introduction

In broad terms, the present proceedings comprise two related applications made under the Guardianship and Administration Act 1990 (WA) (GA Act)[1] concerning GD, who is the mother of the applicant, MD. By the applications, MD seeks orders to vary or revoke any Enduring Power of Attorney (EPA) pursuant to which his sister SD is appointed as GD's donee, and to appoint him as GD's guardian and administrator.
[1] In these reasons, except as otherwise specified, every reference to a statutory provision is a reference to a provision of the GA Act.
These proceedings are tangentially related to earlier proceedings concerning GD's husband, WD (WD Proceedings).[2] GD and WD have been married for 60 years (having reached that milestone in November 2021), and have three children: MD, SD and another daughter, SA.

Issues

[2] The WD Proceedings are the subject of the decision in WD [2022] WASAT 12 (WD).

In determining the applications, I must address the following issues:
a)Is there sufficient evidence to rebut the statutory presumption that GD has the capacity to make decisions about her person and her estate[3] on her own behalf?
b)If so, is there a need to appoint a guardian or administrator for GD? Related to this issue:
i)are there less restrictive alternatives (including under a valid EPA and/or EPG) to the making of guardianship and administration orders that would meet GD's needs; and
ii)does MD have a proper interest in applying to have the EPA (if there is one) revoked or varied, and if so, is there a sufficient basis to warrant such an outcome?
c)If a guardian and/or administrator needs to be appointed, who is suitable for appointment and what decision-making functions should they exercise?

Procedural matters

[3] As to which, see [19](a) below.

In the course of the WD Proceedings, MD became aware that GD had made an Enduring Power of Guardianship (EPG) appointing SD as her sole enduring guardian. He commenced the present proceedings on 6 October 2021 by filing an application (First Application)[4] under s 109(1)(c) of the GA Act, being an application to revoke or vary an EPA.
[4] GAA 4305/2021.
In a statement filed with and in support of the First Application (First Statement), MD states:
I suspect my 82 year old mother [GD] has appointed her daughter [SD] as her Enduring Power of Attorney[.]
The current arrangement is not working and my sister has lost control of my mum.[5]
[5] First Statement, page 1.
In the First Application, MD sought the following orders to be made by the Tribunal:
Revoke the donee [SD] of the Enduring Power of Attorney.
Appoint [MD] as the substitute donee of the Enduring Power of Attorney.
In the First Statement, MD applied to have the First Application heard and determined ex parte.[6] On 13 October 2021 that application was denied, and orders were made for notice to be given to the interested parties (as well as to the Public Trustee and the Public Advocate).
[6] Pursuant to GA Act, s 110: First Statement, page 1.
Notices of legal representation were subsequently filed for each of SD and GD on 19 and 27 October 2021, respectively.
On 28 October 2021, in opposition to the First Application, GD's legal representative filed a letter dated 21 October 2021 from a general practitioner, Dr TF (Medical Letter), which is in terms that:
I have been [GD's] general practitioner since February 2019 and she has attended our practice since May 2018. I have seen her on many occasions without any concerns as to her capability or cognition.
Formal cognitive testing today (21 October 2021) confirms no evidence of cognitive impairment with a MMSE score of 30/30. Nor is there any evidence of psychiatric illness.
She has at all times expressed care and compassion for her husband [WD] and presents as a person of good character.
A directions hearing in relation to the First Application was held on 1 November 2021 (Directions Hearing) at which:
a)the legal representative for GD made an oral application, and submissions in support, to have the First Application dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (Dismissal Application). The submissions in support of that application included submissions that:
i)MD was not a proper person to bring an application under s 109(1)(c) of the GA Act; and
ii)in any event, the application was vexatious, or lacking in substance because GD had capacity;
b)the nature, basis and consequences of those applications,[7] and the contents of the Medical Letter,[8] were outlined to MD;
[7] ts 13-14, 1 November 2021.
[8] ts 8, 1 November 2021.
c)I identified the following matters[9] as giving rise to some concern about the substance of the application and provided MD with an opportunity to address those matters:
[9] ts 16, 1 November 2021.
i)first, in the course of the Directions Hearing, MD initially indicated that his application was about guardianship, rather than about an EPA. However, when the wording and nature of the s 109(1)(c) application was put to him, and he was asked whether that remained his application, he responded:
Well, whatever I've said there - yes[.][10]
ii)second, much of what MD said in the Directions Hearing was directed to concerns he held about the decisions that have been made for his father, even though this application was in respect of his mother; and
iii)third, the Medical Letter offered the view that GD was capable of making her own decisions; and
d)MD was invited to consider whether, in light of those matters, he wished to continue to press the First Application, and whether he had additional evidence to put to the Tribunal.[11] He stated that he did not get much sleep the previous night and wanted an opportunity to file written submissions.[12]
[10] ts 12, 1 November 2021.
[11] ts 17-19, 1 November 2021.
[12] ts 19, 1 November 2021.
At the conclusion of the Directions Hearing, I relevantly made orders that:
a)by 22 November 2021, MD was to file submissions addressing:
i)whether and why he is a person with a 'proper interest in the matter'; and
ii)what orders should be made under s 109(1)(c) and the reasons those orders should be made;
b)GD and SD were to file responsive submissions by 29 November 2021;
c)by 22 November 2021, GD was to file written submissions in support of the Dismissal Application, and any orders that should follow;
d)any party other than GD could, by 29 November 2021, file submissions addressing the Dismissal Application; and
e)by 29 November 2021, each party was to file any documents on which they would rely in the proceeding, and thereafter (subject to any further order of the Tribunal) no party was to file any further materials in the proceeding.
On 4 November 2021, MD filed an application for access to the transcript of the Directions Hearing, and to the documents filed in the First Application. By orders dated 5 November 2021, that application was granted.
Each of the parties filed written submissions in relation to the First Application and the Dismissal Application.[13] In their written submissions, each of GD and SD applied for orders, pursuant to s 87 of the SAT Act, that MD pay their costs of the proceeding.
[13] On 22 November 2021, MD filed a written statement and submissions in support of the First Application and GD filed written submissions in support of the Dismissal Application; on 29 November 2021, each of SD and GD filed responsive submissions to the First Application. MD did not file further submissions or a response to the Dismissal Application until 18 January 2022 (see [16](b) and [46](b) below).
The matter was listed for a final hearing to be held on 31 January 2022.
Despite the order at [12](e) above, on or about 18 January 2022 MD filed:
a)six applications for permission to summon a witness to produce documents and/or give evidence to the Tribunal (Summons Applications), as follows:
i)GD to produce the following documents:
1.Any and all documents appointing anyone [GD's] Enduring Power of Attorney.
2.Any and all documents supplementary to Enduring Powers of Attorney for [GD].
3.Any and all documents appointing anyone [GD's] Enduring Power of Guardian [sic].
4.Any and all documents supplementary to Enduring Powers of Guardian [sic] for [GD].
5.Documents [GD] had created for the purpose of a criminal injuries compensation claim due to injuries received at a picknick [sic] in Kings Park.
6.Report by [Dr PM] for [GD's] criminal injuries compensation claim due to injuries received at a picknick [sic] in Kings Park.
7.All documents sent by the office of the Criminal Injuries Compensation Assessor to [GD].
8.[GD's] Medicare statements for the last 12 months.
9.GD's medical file for the last 12 months.
10.All documents given to [GD] indicating that she has a mental disability.
11.All medical prescriptions for [GD] the last 12 months.
12.Copies of the packaging with labels for all prescription drugs for [GD] for the last 12 months.
13.[GD's] current last will and testament along with any and all codicils.
14.[GD's] previous last will and testament along with any and all codicils.
ii)Dr PM, a psychiatrist, to give evidence and to produce the following documents:
1.Report by [Dr PM] for [GD's] criminal injuries compensation claim due to injuries received at a picknick [sic] in Kings Park.
2.Patient notes of [GD].
3.Medical and psychiatric files of [GD].
4.Referrals.
5.Test results.
iii)Dr MC, a psychiatrist, to give evidence;
iv)Dr TF, GD's general practitioner and author of the Medical Letter, to give evidence and to produce the following documents:
Complete medical file for [GD] for the last 12 months including all test results and referrals.
v)the Criminal Injuries Compensation Assessor to produce the following documents:
All documents received or created in relation to claims for criminal injuries compensation by [GD].
vi)the Public Advocate to produce the following documents:
All reports written in relation to [WD].
and
b)an affidavit and written submissions (both dated 17 January 2022), which appear to be made principally in response to the Dismissal Application, but which might also be understood as being made in support of the Summons Applications.
On 31 January 2022, some hours before the final hearing, MD also lodged:
a)a further application (Second Application),[14] made under s 40, for orders appointing him as the guardian and administrator of GD; and
b)a further statement in support of the Second Application (Second Statement), which included a submission that the Second Application be run concurrently with the First Application.[15]
[14] GAA 463/2022.
[15] Second Statement, page 6.
At the commencement of the final hearing, GD consented to accept service of a Notice of Hearing in relation to the Second Application, and to have the Second Application heard and determined together with the First Application on the same day.[16] On that basis, I made orders[17] that the First Application and the Second Application would remain as separate proceedings, but would be heard and determined together, and that the evidence in one proceeding would be evidence in the other.

First and Second Applications - relevant legal framework

Principles relevant to all proceedings under the GA Act
[16] ts 2-4, 31 January 2022.
[17] Pursuant to s 51(1) of the SAT Act.

Both the First Application and the Second Application are proceedings under the GA Act. As I have previously noted,[18] the starting point for such proceedings is that the Tribunal must observe the principles in s 4, with its primary concern being the best interests of the person in respect of whom orders have been made or proposed (represented person),[19] who in this case is GD. Other principles include that:
[18] GG [2021] WASAT 133 (GG) at [27].
[19] GA Act, s 4(1) - s 4(2).
a)until the contrary is proved to the satisfaction of the Tribunal, all (adult) persons are presumed to be capable of:
i)looking after their own health and safety, and making reasonable judgments in respect of matters relating to their person;[20]
ii)managing their own affairs;[21] and
iii)making reasonable judgments in respect of matters relating to their estate;[22]
b)orders should only be made, and be in such terms, as necessary to meet the needs, in the least restrictive way possible, of the represented person;[23] and
c)in considering any matter related to a represented person, the Tribunal must, as far as possible, seek to ascertain the views and wishes of that person.[24]
Principles relevant to the First Application
[20] GA Act, s 4(3)(a) and s 4(3)(b).
[21] GA Act, s 4(3)(c).
[22] GA Act, s 4(3)(d).
[23] GA Act, s 4(4) - s 4(6).
[24] GA Act, s 4(7).
As noted above, by the First Application, MD seeks orders under s 109(1)(c) to vary or revoke any EPA that GD may have executed appointing SD as her donee. Relevant to that application:
a)Donees appointed under an EPA have responsibilities to the donor. Pursuant to s 107, a donee must:
i)exercise their powers with reasonable diligence to protect the interests of the donor (and are liable for loss occasioned by a failure to do so); and
ii)keep and preserve accurate records and accounts of all dealings and transactions made under the power.[25]
b)Under s 109, the Tribunal exercises a general supervisory jurisdiction[26] in relation to EPAs. On the application of a person with a 'proper interest in the matter' it may:
i)require a donee to file and serve a copy of records and accounts;
ii)require such records and accounts to be audited;
iii)revoke or vary the terms of an EPA;
iv)make 'such other order as to the exercise of power or construction of terms as it thinks fit',[27] and make any order subject to such terms and conditions as it thinks fit.[28]
Principles relevant to the Second Application
[25] Additionally, subject to s 109(2), a donee may also renounce power during donor's incapacity and must report to the Tribunal if they become bankrupt. Neither of those matters is relevant to the present proceedings.
[26] KS [2008] WASAT 29 (KS) at [26], [47].
[27] GA Act, s 109(3).
[28] GA Act, s 109(4).
By the Second Application, MD seeks to be appointed as GD's guardian and administrator. The process involved in, and the key provisions relevant to, the making of guardianship and administration orders are usefully summarised in SM[29] as follows:
11The first question to be resolved is that of … capacity[.]
…
13The particular provisions concerning capacity in the GA Act are s 43(1)(b) for guardianship and s 64(1)(a) for administration.
…
16The second question, assuming a finding of incapacity has been made, is whether [the represented person] is in need of guardianship and administration orders: s 43(1)(c) and s 64(1)(b) of the GA Act. The GA Act states that if the needs of [the represented person] can be met in a manner less restrictive of [their] freedom of decision and action then orders should not be made: s 4(4) of the GA Act.
17The final questions, assuming the need for orders has been determined, is to decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 44, s 68, s 69, s 71 and s 84 of the GA Act.
[29] SM [2015] WASAT 132 at [11]-[17].
In relation to the first question, being GD's capacity:
a)a guardian cannot be appointed for GD unless, contrary to the presumption of her capacity,[30] the Tribunal is satisfied that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others;[31] and
b)an administrator of the estate of GD cannot be appointed unless, contrary to the presumption of her capacity,[32] the Tribunal is satisfied that GD is, by reason of a mental disability, unable to make reasonable judgments in respect of matters relating to all or any part of her estate.[33] For this purpose, 'mental disability' is defined to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.[34]

Parties' positions

Applicant's grounds and contentions
[30] GA Act, s 4(3).
[31] GA Act, s 43(1)(b). As to the operation of, and relationship between, s 4(3) and s 43(1)(b), see GG at [52][63].

[32] GA Act, s 4(3).
[33] GA Act, s 64(1)(a). As to the operation of, and relationship between, s 4(3) and s 64(1)(a), see GG at [46][50]; FY [2019] WASAT 118; (2019) 98 SR (WA) 190 (FY).
[34] GA Act, s 3.

In relation to the First Application, MD contends he is a person with a 'proper interest in the matter'[35] because he:
a)is GD's biological son;
b)believes he is a beneficiary under GD's will;
c)has a genuine desire to act in GD's best interests, and is concerned about GD's welfare and her estate; and
d)is willing and suitable to act as GD's guardian and administrator and would act in her best interests.
[35] Which is necessary for all applications made under s 109 of the GA Act.
In the First Statement, MD contends that:
a)GD is delusional, pointing to the fact that she took out a restraining order against him;
b)GD's 'behaviour gets very erratic if she does not take her medication';
c)GD's 'last psychiatrist' is no longer practising but she has 'previously expressed an interest' in another psychiatrist, Dr MC;
d)GD visits WD in his nursing home frequently and 'feeds them information about [WD's] condition and makes decisions about him and, 'due to [her] condition', she has 'fed the doctors much distorted and false information about [WD] and made very poor decisions about him'; and
e)SD, who MD suspects is the donee under an EPA made by GD, has 'lost control' over GD and so the current arrangement is not working.
In his written statement dated 17 January 2022, MD states that:
The applications I have had to bring have been necessary on account of mal-a-fides, dereliction of duty and very likely criminal behaviour by [SD] and my mother and have included them:
-allowing doctors to administer dangerous and stupefying drugs without consent (this is assault);
-allowing dad to be used for medical experimentation;
-engaging doctors that habitually ignore TGA approvals and professional guidelines;
-engaging doctors that practice outside their competency and training;
-providing false, misleading and incomplete information to doctors;
-providing false, misleading and incomplete information to me and other people;
-allowing mum to act as guardian for dad to [Dr PS] and others when she was not the appointed guardian;
-cutting dad off from physical contact with his son for several months at a time and not allowing him to leave the aged care home (this is 'family violence' and false imprisonment);
-lying under oath and making false statement to the Tribunal;
-preventing me from being involved in consultation with dad's doctors in line with standard medical practice and dad's expressed wishes;
-various breaches of the GAA notably: s 51 (d) in such a way as to protect the represented person from neglect, abuse or exploitation; (e) taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions; (f) in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person; (g) in such a way as to maintain any supportive relationships the represented person has;
-failure to give me discovery as is standard in most litigation;
-rejection of less adversarial means of resolving disputed issues such as Family Case Conference & Mediation;
-'Elder Abuse' as defined by the World Health Organisation;
The applications have been necessary to protect dad and his estate from further harm and mum's estate.
In his written statement dated 22 November 2021, MD contends that:
a)GD is a person for whom a declaration should be made under s 64(1)(a);
b)it is necessary to make immediate provision for GD's estate;
c)GD has:
… used her right to commence legal action to commit 'family violence' against [WD] by wrongfully using a restraining order and threats of further legal action against [MD] to deprive him of contact with his son. The legal action contained false and misleading information including the false claim that she was [WD's] guardian[.]
d)GD's estate is 'likely being depleted' at a rate of $20,000 per year;
e)SD has engaged 'expensive professional advice' to assist GD which is unnecessary; and
f)MD has a degree in accounting and has assisted his parents with their financial affairs in the past.
Additionally, in his Second Statement, MD contends that:
a)GD 'likely has a mental illness' which 'puts her estate at significant risk';
b)GD was previously a patient of psychiatrists, Dr TT and Dr PM;
c)as GD ages, 'her decision-making placing looks over safety and cost is likely to get worse';
d)'from time to time [GD] doesn't take her medication and gets very aggressive', and that:
[S]he experiences stress as her family and friends become aware that she has been using doctors to put dad on extreme dosages of medications. High levels of drinking alcohol combined with likely high levels prescription and non prescription drugs add to her stress level. Mum's adversarial approach to resolving differences with me could result in ongoing disputation for years adding to her stress. This is likely to adversely impact on her mental health.
e)the Medical Letter and opinion of Dr TF should not be relied upon because:
This is a relatively recently appointed doctor of mum's that likely knows little if any of mum's psychiatric history. No information is provided that this report is based on any accredited type of mental health assessment. No information is provided that [Dr TF] has any specific mental health training or accreditation.
f)GD needs to distance herself from 'her adversarial close friend'[36] whose involvement in a restraining order application by GD against MD he described as 'very unhelpful in causing our family harmony to be severely damaged and get out of hand'.
[36] GD's counsel in these proceedings.
MD also submitted that:
a)'relevant information' from the WD Proceedings should be 'used to assist the Tribunal in this case'; but
b)the investigation and report of a delegate of the Public Advocate (who was appointed to investigate, report and attend to advance the best interests of WD in the WD Proceedings) could not be relied upon because:
[The] report gave the perception she was heavily swayed by all the people she met that had been given glowing information about [GD] and [SD] because of their ability to interact with them and negative information about me because I was cut off from them and [WD].
…
[The] report could not in all fairness be called an investigation.[37]
GD's contentions
[37] Second Statement, page 6.
GD's contentions may be summarised as follows:
a)the present proceedings are:
i)'inextricably linked' with the WD Proceedings; and
ii)unsupported by evidence other than 'unsubstantiated allegations and personal attacks' by MD on his mother, GD;
b)MD's allegations about GD, which include contentions that she has a psychiatric condition and is mentally unstable and allegations of criminal behaviour, have been made repeatedly to various authorities in various complaints and other proceedings (including in the WD Proceedings) and have been 'systematically dismissed';
c)GD denies that she has been or is being treated for a psychiatric condition;
d)there is no independent evidence that is capable of rebutting the presumption that GD is capable of making decisions about her own personal welfare and/or in relation to her estate;
e)on the contrary, there is evidence from GD's treating medical practitioner that she has capacity. Furthermore, the investigations of the delegate of the Public Advocate undertaken for and in the course of the WD Proceedings, found no evidence of and expressed no concerns regarding GD's ability to manage and to make reasonable judgments about her own affairs and the joint affairs of her and her husband;
f)the applications made by MD are vexatious, in that they are:
i)without substance and have no prospect of success;
ii)made by MD for the improper and/or collateral purposes[38] of controlling his parents' financial affairs and to obtain information about GD's financial and personal affairs (including her medical information); and
iii)instituted with the intention of annoying or embarrassing GD;[39]
g)in the circumstances:
i)the applications constitute an abuse of process;[40]
ii)the applications should be dismissed; and
iii)the costs incurred by GD in the proceedings should be paid by MD.
SD's contentions
[38] Citing Legal Profession Complaints Committee and Khosa [2019] WASAT 143 at [20].
[39] Citing Re Rules of the Supreme Court 1971(WA);Ex Parte Gates [2018] WASC 213 at [31]-[33].
[40] MS [2020] WASAT 66 (MS) at [41]-[42], [53].
SD's contentions may be summarised as follows:
a)noting the evidence of Dr FT in the Medical Letter:
i)there is no evidence to rebut the presumption that GD has capacity to make her own decisions;
ii)MD has failed to identify a clear or cogent reason that his applications should be entertained;
iii)the proceedings were not brought for a proper purpose by a person with a proper interest; and
iv)MD's applications are unsupported by corroborative or independent evidence and are fundamentally flawed and should be dismissed;
b)MD fails to identify or allege any misconduct or other matter in relation to the operation of an EPA which would justify an enquiry or orders to be made under s 109;
c)the private nature of any EPA made by GD should be respected;
d)MD is using the Tribunal process for an improper purpose, that purpose being to control his parents' financial affairs, and to cause GD distress;
e)MD's contentions concerning GD's mental health and wellbeing are false and mischievous - GD is not being treated for a psychiatric illness and does not require a carer;
f)in the circumstances:
i)the applications should be dismissed; and
ii)SD has incurred costs in seeking advice and representation, which she seeks to recover from MD on an indemnity basis.
In support of her contentions, SD cited and relies upon the decisions of the Tribunal in PT [2020] WASAT 147 (PT); GA and EA and GS [2013] WASAT 175 (GA); and EW [2010] WASAT 91(EW).

Disposition of the Dismissal Application

As noted above, both SD and GD opposed the First and Second Applications.
GD applied to have the First Application dismissed under s 47 of the SAT Act, which provides that if the Tribunal believes that a proceeding is:
a)frivolous, vexatious, misconceived or lacking in substance; or
b)being used for an improper purpose; or
c)otherwise an abuse of process.[41]
then it may determine that the proceeding be dismissed or struck out and make 'any appropriate orders'.[42]
[41] SAT Act, s 47(1).
[42] SAT Act, s 47(2).
If the Tribunal makes such an order then, pursuant to s 49 of the SAT Act, 'another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member'.
As I noted in WD:[43]
…
a)the exercise of discretion to strike out or dismiss an application summarily sits uncomfortably with the protective nature of the jurisdiction exercised by the Tribunal under the GA Act;
b)although there are certainly some instances in which such a step may be warranted, the exercise of such a discretion should be approached with a greater degree of caution than in nonprotective proceedings; and
c)such caution is especially warranted where the proceedings involve a first instance application in the Tribunal and where findings about the capacity of a proposed represented person need to be made.
[43] WD at [82].
I also observed in WD[44] that the Tribunal has only rarely made such orders in proceedings under the GA Act, and has done so largely in the context of applications for the production and audit of financial records under s 109(1)(a) and s 109(1)(b).
[44] WD at [83], citing by way of example PT. See also MS, which involved dismissal of an application for leave to review orders, following multiple previous applications for review.
Notwithstanding that I was ultimately satisfied that both the First and Second Applications should be dismissed,[45] I determined both applications substantively. I declined to exercise my discretion to dismiss the First Application under s 47 of the SAT Act because:
a)the proceedings were the first (in this jurisdiction) to be brought in relation to GD;[46] and
b)the question of GD's capacity is central to the issues to be determined.

Disposition of the Summons Applications

[45] As to which, see 'Disposition of the First Application and Second Application' below.

[46] See contra: MS.

In relation to the Summons Applications, MD contended that the evidence the subject of the Summons Applications was necessary to determine the First and Second Applications.
In support of that position, MD:
a)stated that:
This case is about my mother being unable due to a mental disability to make reasonable judgements in respect of her estate as specified in s 64 GAA. It is appropriate that I am seeking evidence from Psychiatrists to bolster the case to protect my mother's estate.
b)filed an affidavit[47] containing statements about a number of matters which he argues demonstrate that GD is incapable of making reasonable judgments about her own or her husband's affairs;
[47] Affidavit of MD sworn 17 January 2022.
c)stated that his own medical practitioner had 'indicated that it would be appropriate for Mum to be tested for a personality disorder by a mental health professional';[48]
[48] ts 4, 31 January 2022. See also, Affidavit of MD sworn 17 January 2022, para 4.
d)contended that the Medical Letter should not be relied upon because, in addition to the matters raised at [27](e) above:
i)the letter was not in the form of the pro forma Medical Report issued by the Tribunal for use in GA Act proceedings;[49]
ii)Dr TF would only have been able to form a view based on information given to her by GD and 'the quality of information that the doctor received is the question';[50]
iii)he was unable to ask Dr TF questions to properly test the opinion she expressed in the Medical Letter;[51] and
e)referred in support to S v State Administrative Tribunal of Western Australia [No 2][52] where Heenan J determined that, in that case:
The decisions of the SAT must be set aside for several independent reasons [which included, amongst other things] … the failure to exercise powers necessary to obtain evidence from a suitably qualified medical expert; the failure to observe a procedure which allowed witnesses to be called and made available for cross-examination; the failure to adopt any process by which the 'evidence' of those who had provided information could be formally verified or assured by way of oath, affirmation or affidavit[.][53]
[49] ts 10, 31 January 2022.
[50] ts 15, 31 January 2022.
[51] MD cited, for example: 'Did she look into the history of Mum? What sort of things did she look at? Where is the test? What are the results? Explaining it. Has she got any special qualifications in mental health, that sort of thing?': ts 13, 31 January 2022.
[52] [2012] WASC 306 (S v SAT).
[53] S v SAT at [218].
I refused the Summons Applications for the reasons that follow.
Relevant principles
The Tribunal may by summons require a person to give or produce evidence.[54] That power may be exercised at the request of a party or on the Tribunal's own initiative, and is discretionary.
[54] SAT Act, s 66.
The forensic weight of the proposed evidence (that is, whether the evidence is relevant and necessary to determine the issues in the proceeding) is the principal basis for issuing a summons. However, as the Family Court noted regarding the exercise of discretion (in that case, in relation to inspecting subpoenaed documents) in proceedings where the best interests of children was the Court's paramount concern:
The issue as to whether the documents produced have apparent relevance to the issues in the proceedings is clearly a relevant consideration to the proper exercise of the Court's discretion ... It is not, however, the only relevant consideration. The discretion must be exercised in the context of the Act and the Rules.[55]
[55] Riemann & Riemann [2017] FamCA 318 at [99] and, as to factors considered relevant to the exercise of the Court's discretion in that case, see [100].
Similarly, in addition to the forensic weight of the proposed evidence, the factors that I consider to be relevant to the exercise of the Tribunal's discretion to issue a summons at the request of a party include:
a)the statutory framework in which the discretion is sought to be applied;
b)the nature of the proceedings and the complexity or otherwise of the issues to be determined; and
c)other factors such as the timing of the application, the burden of complying with the proposed summons and any prejudice that might arise from granting the request.
Those factors are inexhaustive, non-limiting and may overlap.
As to the broad statutory context in this case, the following are relevant:
a)First, as noted above, in all proceedings under the GA Act, the primary concern of the Tribunal must be the best interests of the person in respect of whom protective orders are sought.[56]
b)Second, pursuant to s 9 of the SAT Act, the objectives of the Tribunal in dealing with matters within its jurisdiction include:
i)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
ii)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties.
c)Third, pursuant to s 32 of the SAT Act, the Tribunal may inform itself on any matter as it sees fit.[57]
[56] GA Act, s 4(2). In this case, that person is GD.
[57] SAT Act, s 32.
More specifically, these proceedings concern questions of whether there is a need and a basis to intervene in the financial and personal decisions of GD. The issues raised in the proceedings are founded upon the threshold question of whether GD has the requisite capacity to make those decisions for herself. Further, she is presumed to have that capacity.
As to the circumstances and nature of the Summons Applications, they:
a)were filed on 18 January 2022, being:
i)over three months from the commencement of the First Application;
ii)two and a half months after the Directions Hearing (where the Medical Letter and its contents were put to MD)[58] and the grant of orders permitting MD to access all documents filed in the proceeding;
[58] ts 5 and 8, 1 November 2021.
iii)almost two months after 29 November 2021, which was the last day for filing materials without leave or further order of the Tribunal; and
iv)two weeks before the final hearing;
b)were filed together with a statement of MD,[59] including to the effect that:
i)unknown to MD, a document was filed by GD on 22 November 2021;[60]
ii)MD 'did not have the chance' to see that document until 7 December 2021;
iii)that document required a 'substantial response', which MD had not had the time to attend to previously; and
iv)the Medical Letter should not be relied upon (for the same reasons and in the same terms as identified in [27](e) above).
Disposition
[59] That statement is dated 17 January 2021, as to which see [16](b) above.
[60] Which I note refers to the submissions filed by GD in support of the Dismissal Application.

Insofar as the Summons Applications applied to:
a)the production of any EPA made by GD; and
b)Dr TF attending to give oral evidence,
there was some forensic weight in the proposed evidence proposed because:
c)the existence and terms of an EPA are relevant to any application to revoke or vary it; and
d)a finding in relation GD's capacity was pivotal to the determination of issues raised in the First and Second Applications, and Dr TF's opinion contained in the Medical Letter was key evidence in relation to that finding.
Nevertheless, I considered that proposed evidence to be of limited forensic value because:
a)Dr TF's opinion as stated in the Medical Letter was:
i)expressed clearly and in specific contemplation of its use in Tribunal proceedings;
ii)given by GD's current general practitioner, having been her treating practitioner since 2019 and with the benefit of GD having been a patient of the same practice previously;
iii)expressed in the form of a clinical assessment, supported by cognitive testing (the results of which were stated);
iv)consistent with, rather than derogating from, the statutory presumption of GD's capacity;[61]
[61] And in this regard is clearly distinguishable from the evidence the subject of Heenan J's comments in S v SAT, at [99] (extracted at [39](e) above).
iv)consistent with other collateral evidence, including that GD was able to instruct a solicitor in the proceedings, and the submissions and evidence of SD; and
b)further, to the extent that MD addressed the adequacy and basis of the opinion in the Medical Letter in his affidavit and submissions, he had not raised a sufficient basis to:
i)challenge the qualifications of Dr TF; or
ii)warrant concern about the opinion she had formed as GD's treating medical practitioner about the current capacity of GD;[62]
c)accordingly, I felt able to be satisfied that I had sufficiently probative evidence upon which to make a finding in relation to GD's capacity; and
d)in relation to the EPA, GD states in her submissions that she has made 'administration arrangements', with documents lodged with Landgate.[63] Accordingly, the existence of an EPA appointing SD is not contentious, and the production of the document would be of limited forensic value in the circumstances.
[62] To the extent that he refers to GD having been under the care of specialist medical practitioners, including psychiatrists, his evidence is, at its highest (that is, even if that evidence were to be accepted at face value, as to which I make no finding), that she was under their care a number of years ago.
[63] Submission of GD dated 29 November 2021, paras 5.0 - 6.0.
More broadly, MD had, from 1 November 2021, been aware of the nature and contents of the Medical Letter and had inspected the Tribunal file on 7 December 2021. He had ample opportunity to raise concerns about the adequacy, form and contents of the Medical Letter well before 18 January 2021 and had not done so.
Finally:
a)insofar as the Summons Applications extended to evidence other than the matters described in [47] above, they were in my assessment:
i)in the nature of 'fishing' (meaning that their scope was broad and not clearly directed to issues central to the proceedings); and
ii)burdensome and intrusive in nature; and
b)insofar as the documents filed by MD on 18 January 2022 were responsive to the Dismissal Application:
i)the proposed evidence the subject of the Summons Applications was not needed to resist the Dismissal Application; and
ii)the remaining responsive submissions made by MD are unaffected by the determination of the Summons Application and have been taken into account in the disposition of the proceedings.
In the circumstances, I declined to exercise my discretion in favour of issuing summonses as proposed in the Summons Applications.

Disposition of the First Application and Second Application

Based on the unequivocal assessment provided by GD's current treating general practitioner in the Medical Letter which (as I have noted above) is:
a)consistent with the statutory presumption of capacity; and
b)supported by:
i)the stated results of a cognitive function test; and
ii)collateral evidence,
I am satisfied and find that GD does not meet the threshold criteria in either of s 43(1)(b) or s 64(1)(a) and is therefore not a person for whom guardianship or administration orders could be made.[64]
[64] It follows that the issues identified at [4](c) do not need to be determined.
Further, to the extent that GD might have required a substitute decisionmaker, she has put her own arrangements in place, including under an EPA.[65] Such instruments have been described by the Tribunal as comprising 'essentially a private agreement between the donor and the donee'.[66] Before the Tribunal would scrutinise[67] or interfere with[68] that arrangement, it should be satisfied that:
a)the application for revocation or variation of the instrument is made by a person with a proper interest in the matter;[69] and
b)the circumstances justify[70] such orders.
[65] Submission of GD dated 29 November 2021, paras 5.0 - 6.0; see [48](d) above.
[66] EW at [94].
[67] By making such orders as are contemplated by s 109(1)(a) and s 109(b) of the GA Act, which in any event is not in issue in these proceedings.
[68] By making such orders as are contemplated by s 109(1)(c) and s 110N of the GA Act.
[69] GA Act, s109(1) and s 110J.
[70] See KS at [49] and EW at [94].
Whether or not MD, has a 'proper interest in the matter' (which, for the reasons that follow, is unnecessary for me to decide):
a)section 109 responds only to an exercise of power by a donee 'in connection with' an EPA,[71] and there is no evidence of SD exercising authority under an EPA made by GD in a manner that would give rise to any concern (or at all);
b)in any event, given that I have found that GD retains capacity to manage her own affairs, if GD considers that her EPA no longer meets her needs or is no longer operating in her interests, she has the ability to amend or revoke it herself (noting that EPAs are inherently revocable); and
c)accordingly, the circumstances do not give rise to any reason or any proper basis for the Tribunal to make orders revoking or varying the terms of the instrument.
[71] EW at [81]-[86].
It follows from the findings above that each of the First and Second Applications is dismissed.

Costs

As noted above, each of GD and SD have applied to recover from MD the costs they have incurred in responding to the First Application.
In opposition to GD and SD's application for costs, MD has argued (in summary) that:
a)the First Application was made in good faith;
b)SD and GD's claims for costs are 'totally out of order' because:
i)the Tribunal is a no-costs jurisdiction;
ii)litigants before the Tribunal do not need a lawyer;
iii)specifically, neither GD nor SD had any need to engage legal representation because:
1)SD has a university degree and has no need to engage a legal representative;
2)GD is articulate and well read - with the only impediment to her representing herself being her 'unstable mental state' which could be overcome with the assistance of SD,
c)it is 'grossly unfair that if someone chooses to use a lawyer and have the benefit of it that the other person should have to pay';
d)MD has made attempts to mediate and to settle the issues in dispute; and
e)the legal representative of GD:
i)is a personal friend of hers which makes it inappropriate for her to act; and
ii)has engaged in a range of conduct that is misleading, threatening and unreasonable or improper.
In relation to the submission at [57](a)-(c):
a)the Tribunal has (except as otherwise provided in an enabling Act) the discretion to award costs in any proceeding before it;[72]
[72] SAT Act, s 87(2)-s 87(3).
b)although the starting position is that the Tribunal is a no-costs jurisdiction, that position is expressly subject to variation, relevantly as follows:
87. Costs of parties and others
…
(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 … the Tribunal is to have regard to -
(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 decisionmaker to make a decision on its merits[;]
and
c)there is no prohibition against awarding costs, and there are numerous instances in which costs have been awarded, in proceedings under the GA Act.[73]
[73] See, for example: GA; PT; PHQ and LPQ [2015] WASAT 5; GB [2020] WASAT 61 (S).
In general, the Tribunal is required to exercise its discretion having regard to all of the circumstances of the particular case, and ultimately on the basis of whether it is fair and reasonable for one party to bear the costs of another.[74] Some considerations that guide that ultimate assessment include whether:
a)a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process. This includes where proceedings should not have been maintained against a party because it is clearly untenable, and no reasonable person would have believed they could be successful; and
b)costs have been incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings (where the conduct of the party was unreasonable and unfairly caused the increased costs).[75]
[74] RK [2020] WASAT 53 (S) at [23]-[24], referring to Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32.
[75] PT at [25], referring to Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73]-[74].
In GA,[76] for example, the Tribunal observed that:
47… the proceeding was maintained, certainly after the directions hearing, for what has been substantially an ulterior purpose ... That was clear from the scope of the issues that the applicant and her brother and sister in law sought to raise and also clear from their statements that they have wider intentions in terms of bringing proceedings.
48People should have the right to bring proceedings in the Tribunal, acting properly and reasonably, and exercise those rights without fear that any costs order might be made against them. However, they have an obligation to act reasonably and not to invoke the Tribunal's processes for an ulterior purpose.
[76] GA at [47]-[48].
In this case, I am satisfied that there are grounds to order that MD pay SD and GD's costs of the First Application from 1 November 2021 (being the date of the Directions Hearing). Those grounds follow.
I find that, from 1 November 2021 at the latest, MD:
a)knew, in that he was informed precisely of, the contents of the Medical Letter;
b)was in a position to understand that the Medical Letter cast real doubt as to the substantive merits of the proceeding;
c)knew that GD and SD were legally presented and would incur costs in responding to the application, and would seek to recover those costs; and
d)had an opportunity to consider his position in relation to raising further evidence and/or continuing to press the First Application in circumstances where the significance of the opinion in the Medical Letter to the proceeding was known to him.
Notwithstanding the above, MD:
a)did not withdraw the First Application, and produced no independent evidence in answer to the Medical Letter;
b)to the extent that he sought, by the Summons Applications, to introduce further evidence, those applications were brought:
i)out of time and without leave;
ii)two weeks before the final hearing; and
iii)in relation to documentary and oral evidence that was of limited forensic weight, a deal of which amounted to 'fishing' (in the sense described at [50](a) above);
c)filed, on the day of the final hearing, the Second Application in circumstances where:
i)the substance of the Second Application was so closely related to the First Application that the proceedings could not sensibly be heard and determined separately;
ii)filing the application on the day listed for a final hearing of the First Application could reasonably have been expected to result in the delay of the First Application; and
iii)to MD's knowledge, the evidence available to the Tribunal did not reasonably support the application (and the evidence proposed by the Summons Applications was of limited forensic weight); and
d)otherwise engaged in conduct in connection with the First Application that was unreasonable or likely to cause disadvantage and embarrassment to GD and SD. That conduct included making and sustaining allegations of a serious nature against SD and, more particularly, GD (including but not limited to the allegations set out at [25] and [27] above) many of which were:
i)not supported by (and in a number of instances, contradicted by) the evidence; and
ii)not squarely addressed to the issues to be determined (despite repeated attempts to advise and redirect the applicant in respect of those issues).
MD's repeated reference throughout the proceedings to GD's role in the decision-making for, and care of, WD gives rise to an inference that the applications were made, substantially or in part, for a collateral or ulterior purpose (being to influence the decisions and arrangements being made for WD, rather than to promote the best interests of GD).
In relation to the submissions at [57](b)(ii)-(iii) and [57](d)-(e):
a)in the circumstances, particularly given the potential consequences for GD of the proceedings, and the nature of the contentions made by MD about both GD and SD, it was plainly reasonable for them to seek legal advice about and to be legally represented in the proceedings;
b)in the circumstances, these proceedings did not lend themselves to 'settlement' between the parties; and
c)it is the conduct of MD in connection with the proceedings that is central to the question of whether a costs order should be made against him.[77]
[77] PT at [33].
In the premises, I consider it appropriate that MD pay the costs incurred after 1 November 2021 by each of GD and SD in connection with the First Application (those costs to be determined if they cannot be agreed).
By reason of GD's consent to the Second Application being heard and determined together with the First Application on 31 January 2022, any further costs in dealing with that proceeding were avoided. Accordingly, no costs were awarded in relation to the Second Application.

Orders

On 31 January 2022, the Tribunal made the following orders:
GAA 4305/2021
The Tribunal orders:
1.The application is dismissed.
2.Pursuant to s 87(2) of the State Administrative Tribunal Act (WA) MD is to pay GD's costs of the proceeding incurred after 1 November 2021, in an amount and by a time to be agreed or determined.
3.Pursuant to s 87(2) of the State Administrative Tribunal Act (WA) MD is to pay SD's costs of the proceeding incurred after 1 November 2021, in an amount and by a time to be agreed or determined.
4.If, by 9 February 2022, the parties do not agree both the amount and the time for payment of the costs the subject of orders 2 and 3 above, then:
(a)each of GD and SD may, by no later than 2 March 2022, apply to the Tribunal for those matters to be determined by filing with the Tribunal and giving to MD the following documents:
(i)a schedule of the costs claimed in sufficient detail to enable the Tribunal to assess and fix any costs which might be awarded, together with any supporting documents upon which the party applying wishes to rely; and
(ii)any written submissions addressing the quantum of costs claimed upon which the party applying wishes to rely;
(b)by no later than fourteen (14) days after any application is made under order 4(a) above, MD may file with the Tribunal, and if so, give to the party who made the application, written submissions in relation to the costs claimed and the date for payment; and
(c)after fourteen (14) days from the date of any application made under order 4 (a) above:
(i)no party may file any further documents; and
(ii)the Tribunal will determine the application on the documents.
GAA 463/2022
The Tribunal orders:
Administration
1.The administration application is dismissed.
Guardianship
2.The guardianship application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR B MCGIVERN, MEMBER

27 APRIL 2022

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GD [2022] WASAT 33 (S)
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   19 MAY 2022
FILE NO/S:   GAA 4305 of 2021

MD
Applicant
SD
First Interested Party
GD
Proposed Represented Person

Catchwords:

Costs allowed in guardianship and administration proceedings - Costs to be determined - Fixed costs - Principles to be applied

Legislation:

Guardianship and Administration Act 1990 (WA), s 40, s 109(1)(c),
Legal Profession (State Administrative Tribunal) Determination 2020 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1)

Result:

Costs determined

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Interested Party	:	Mr L Barry
Proposed Represented Person	:	Ms Jillian Saint

Solicitors:

Applicant	:	N/A
First Interested Party	:	Vibe Legal Pty Ltd
Proposed Represented Person	:	Ms Jillian Saint

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

Electricity Networks Corporation t/as Western Power and Bombara [2021] WASAT 3
GB [2020] WASAT 61 (S)
GD [2022] WASAT 33
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Medical Board of Australia and Costley [2013] WASAT 2
WD [2022] WASAT 12
WD [2022] WASAT 12 (S)
Winterbourn and Western Australian Planning Commission [2013] WASAT 72

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 31 January 2022, I made orders dismissing the application in this (and a related) proceeding, and ordered the applicant to pay certain of the costs incurred by the proposed represented person, GD, and the first interested party, SD. The reasons for that decision are set out in GD [2022] WASAT 33 (Decision).
The proceedings the subject of the Decision:
a)comprised two related applications made under the Guardianship and Administration Act 1990 (WA) (GA Act) concerning GD, the mother of the applicant, MD. They were also tangentially related to a series of applications made by MD in relation to his father, WD (WD Proceedings);[78]
b)concerned:
i)an application in the present proceeding to vary or revoke any Enduring Power of Attorney (EPA) pursuant to which GD had appointed her daughter (and MD's sister) SD as her attorney;[79] and
ii)and application for orders appointing MD as the guardian and administrator of GD;[80] and
c)were both dismissed, with orders that MD is to pay the costs of each of SD and GD incurred after 1 November 2021 in the present proceeding, the amount and time for payment of those costs to be agreed or determined.[81]
[78] As to which, see WD [2022] WASAT 12.
[79] Made pursuant to s 109(1)(c) of the GA Act.
[80] GAA 463 of 2022 made pursuant to s 40 of the GA Act.
[81] Similar costs order were made, in the WD Proceedings and the determination relating to those costs is set out in WD [2022] WASAT 12 (S) (WD(S)) .

The parties have been unable to reach agreement as to the amount and time for payment of GD and SD's costs, and each of GD and SD have applied to the Tribunal for those matters to be determined. That determination and associated reasons follow.

Parties' positions

GD

On 28 February 2022, GD filed written submissions, together with a schedule of costs, in support of the costs she claims. Those materials are to the effect that:
a)following 1 November 2021, GD incurred costs associated with work (GD Work):
i)undertaken by her legal representative in advising her in relation to, preparing for (including by reviewing a large volume of documents), drafting submissions for and attending the final hearing of the application (which was a one hour contested hearing), as well as reading the resulting judgment and orders and conferring with GD; and
ii)totalling 33 hours by a senior practitioner;
b)the GD Work was reasonable in the circumstances;
c)in accordance with the Legal Profession (State Administrative Tribunal) Determination 2020 (WA) (SAT Determination), GD claims $14,044.80 in respect of the GD Work;
d)the actual costs incurred by GD in connection with the GD Work are in excess of the amount claimed (having been billed at a rate higher than allowed under the SAT Determination); and
e)GD seeks payment by MD within 28 days of the Tribunal's costs determination.
SD
On 1 March 2022, SD filed written submissions, together with a bill of costs (and supporting schedule), in support of the costs she claims. Those materials are to the effect that:
a)following 1 November 2021, SD incurred costs associated with work (SD Work):
i)undertaken by her legal representatives in advising her in relation to, preparing for, drafting submissions for and attending the final hearing of the applications (which was a one hour contested hearing); and
ii)totalling 8.6 hours by a senior practitioner and 0.4 hours by a paralegal;
b)the SD Work was reasonable in the circumstances;
c)in accordance with the SAT Determination, SD claims $3,656.40 in respect of the SD Work;
d)the actual costs incurred by SD in connection with the SD Work are in excess of the amount claimed (having been billed at a rate higher than allowed under the SAT Determination); and
e)SD seeks payment by MD within 28 days of the Tribunal's costs determination.
MD
Following the Decision, MD filed written submissions and an affidavit, both dated 21 February 2022.[82] On 14 March 2022, he filed further submissions (with a further copy of his affidavit dated 21 February 2022) in response to the submissions and materials filed by each of SD and GD.[83]
[82] That initial set of submissions was directed to the issue of costs in the present proceeding and the WD Proceedings.
[83] MD's submissions were in substantially the same, or very similar, terms as those made in connection with costs in the WD Proceedings.
Many, indeed most, of the submissions made by MD go to the underlying merits of the decision to award costs against him. They include submissions to the effect that that decision:
a)gives rise to an apprehension of bias against MD;
b)was unfair, taking account of the relative positions and conduct of the parties;
c)is inconsistent with the best interests of WD;
d)will act as a deterrent for people considering raising concerns about vulnerable people in the Tribunal;
e)is inconsistent with the Tribunal being a 'no costs jurisdiction'[84] and with natural justice; and
f)should be reversed.
[84] State Administrative Tribunal Act 2004 (WA), s 87(1); as to which, see GD [2022] WASAT 33 at [58].
Those submissions are not properly dealt with here.[85] That is because the decision to award costs has been made.
a)It is not open in this forum for a party to challenge or re-agitate arguments in relation to the underlying decision.
b)The only issues to be determined now are the amount and time for payment of the costs the subject of the orders made on 31 January 2022.
[85] Save, perhaps, in relation to the issue of apprehended bias, in respect of which the applicant has sought that I be removed from further decision-making in these proceedings. The Tribunal has not acceded to that request. I note, for completeness, that I do not consider it necessary or appropriate to recuse myself, taking account of the principles and approach articulated in (for example) Electricity Networks Corporation t/as Western Power and Bombara [2021] WASAT 3 at [12] - [23].
As to those issues, MD's submissions are to the effect that:
a)he does not have capacity to pay costs;
b)neither SD nor GD have complied with the orders of the Tribunal in relation to their claim for costs, in that they have not provided:
i)an adequate or sufficiently detailed schedule of costs; or
ii)a bill of costs;
c)the costs claimed by GD are excessive (noting the disparity between the costs claimed by her and those claimed on behalf of SD); and
d)he cannot make a submission about the date for payment of costs, since he has no capacity to pay them.

Disposition

Principles and approach

As I noted in WD(S) [86] Senior Member Aitken has previously observed that:
26One of the main objectives of the Tribunal in dealing with matters within its jurisdiction is to minimise the costs to the parties: s 9(b) of the SAT Act.
27When an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs awarded, to reflect an expectation that the legal representatives of the parties will approach proceedings in a way that minimises costs to their clients.
…
29The Tribunal is empowered to fix the amount of costs to be paid and if it does not fix the amount of costs then the amount is to be assessed; s 89 of the SAT Act. The usual approach of the Tribunal is to fix costs, rather than assess them.[87]
[86] WD(S) at [10].
[87] PT [2020] WASAT 147 (S) (PT) at [26] - [29], citing J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [38].
The Tribunal's approach to fixing costs has been explained[88] in the following way:
a)the Tribunal approaches the task of fixing costs to be awarded in a 'broad and relatively robust fashion';
b)the Tribunal must be satisfied that the claim is reasonable having regard to the matter before it; and
c)an award of costs is not intended to be a full indemnity for the actual expense incurred by a party to a proceeding, but rather:
[The] preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion.[89]
[88] PT at [30], citing GB [2020] WASAT 61 (S) at [58] - [61] (GB).
[89] Winterbourn and Western Australian Planning Commission [2013] WASAT 72 at [45], citing Medical Board of Australia and Costley [2013] WASAT 2 at [66].
That approach is relevant to the objections raised by MD as to the level of detail in the schedules of costs provided by SD and GD, and to the non-production of the underlying costs agreements.[90]
a)As to the latter, SD and GD have claimed costs at the rates reflected in the SAT Determination (with each submitting that the actual charge-out rates were higher). I am satisfied that that is an adequate and reasonable basis upon which costs can be determined.
b)As to the former, I am satisfied that the schedules of costs provided by each of GD and SD are sufficient for the purposes of fixing rather than assessing costs.
[90] See [9] b) above.
Finally, noting MD's submissions in relation to his ability to meet a costs order,[91] I would add that the subjective capacity of a party to pay costs is not a relevant consideration to the question of the sum to be fixed.
a)Once a costs order is made fixing the sum that is payable, those costs become a judgment debt. The capacity to pay that debt may well be relevant to any enforcement proceedings, but it is not to my mind material to the question of what sum is reasonable to allow.
b)Rather, once the Tribunal has determined that one party should pay another party's costs, the focus must turn to fixing a sum that is reasonable having regard to the nature and complexity of the matter, and the work reasonably associated with it.
Costs fixed
[91] See [9] a) and d) above.
Taking account of the above, I have determined to fix the costs to be paid by MD as follows.
As to the nature and complexity of the matter, I note that:
a)in accordance with orders made on 1 November 2021,[92] the parties all filed fairly detailed submissions in relation to:
i)GD's application to have the application dismissed; and
ii)otherwise, the merits of the application (including whether or not MD was a person with a 'proper interest' in the matter);
b)the evidence at the final hearing was largely confined in the present proceeding to a report from the treating practitioner of GD, in relation to her capacity;
c)although both MD and GD referred to the extensive bundle of materials filed by MD in the WD Proceedings as being relevant to the present proceeding, allowance was made in the WD Proceedings for costs associated with reviewing and considering those materials. Accordingly, I am not persuaded that reference to those materials would have been productive of material additional costs in this proceeding.
[92] See GD at [12].
More specifically, as to the costs claimed by GD:
a)I note that the consequences for GD of the application were significant, and that a number of personal allegations were made by MD against and about GD which reasonably required a response;
b)in relation to the submissions of MD at [9] c) above, it is not surprising or unreasonable in the circumstances that GD's costs in relation to this application exceed those incurred by SD;
c)nevertheless, taking account of the relatively confined nature and complexity of the matter, I consider the claim for 33 hours of professional time to be excessive;[93]
d)I consider that an allowance of 15 hours of professional time (of a senior practitioner) to be reasonable; and
e)I fix the amount of costs to be paid by MD at $6,270.
[93] And to this extent, I accept the submission of MD at [9] c) above.
As to the costs claimed by SD:
a)I consider that the nature of the work and the time allowed for it in the schedule of costs submitted by SD to be reasonable, taking account of the nature of the matter, the length of the hearing, and the materials to be reviewed; and
b)I fix the amount of costs to be paid by MD at $3,656.
I consider that a period of 28 days following the date of the orders that follow to be a reasonable period to allow for MD to pay the costs awarded to each of SD and GD.

Orders

The Tribunal orders:
1.MD must, by no later than 4.00 pm on 16 June 2022, pay the costs of SD fixed in the amount of $3,656.
2.MD must, by no later than 4.00 pm on 16 June 2022, pay the costs of GD fixed in the amount of $6,270.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR B MCGIVERN, MEMBER

19 MAY 2022