GD

Case [2022] WASAT 33

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:

  1. 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

  1. In broad terms, the present proceedings comprise two related applications made under the Guardianship and Administration Act 1990 (WA) (GA Act

Continue reading GD

Sign in free to access the full text

Details
AGLC
GD [2022] WASAT 33
Case
[2022] WASAT 33
Decision Date

CaseChat Overview and Summary

The parties involved in the proceedings were GD, her daughter SD, and her son MD, who were involved in a dispute under the Guardianship and Administration Act 1990 (WA). The primary issue was whether to revoke or vary an Enduring Power of Attorney under which GD had appointed SD as her attorney and whether to appoint MD as GD's guardian and administrator. Both applications were dismissed, and it was ordered that MD pay the costs incurred by GD and SD post-1 November 2021.

The legal issues the court needed to decide were primarily centered around the proper allocation of costs under the State Administrative Tribunal Act 2004 (WA). The focus was on whether the costs claimed by GD and SD were reasonable and should be awarded to them. The court also had to consider the applicant's submissions regarding his inability to pay the awarded costs and the adequacy of the schedules and bills of costs provided by GD and SD.

In its reasoning, the court noted that the decision to award costs had already been made, and thus it was not open to a party to challenge that decision. The only issues left to determine were the amount and timing of payment for the costs awarded. The court emphasized the importance of minimizing costs for the parties and adopted a broad and robust approach in determining the reasonable costs to be awarded. The court found that both GD and SD had incurred reasonable costs and that the amounts claimed, though higher than the allowable rates, were justified under the circumstances. The costs were fixed by the Tribunal to reflect these considerations, with payment to be made by MD within 28 days of the Tribunal's determination.

The final orders confirmed the dismissal of the applications and mandated that MD pay the costs incurred by GD and SD after 1 November 2021, with the exact amounts and payment terms to be agreed upon or determined by the Tribunal. The court did not consider it necessary to recuse itself from the proceedings despite the applicant's request, finding no grounds for apprehended bias.

Orders

Orders of the court

Applications dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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] andc)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. 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; andii)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); ande)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); andii)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); ande)SD seeks payment by MD within 28 days of the Tribunal's costs determination.MD

Ratio Decidendi

Legal Principle Established

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; orii)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); andd)he cannot make a submission about the date for payment of costs, since he has no capacity to pay them. 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; andc)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].