GM
[2018] WASAT 18
•9 MARCH 2018
GM [2018] WASAT 18
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2018] WASAT 18 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1275/2017 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS F CHILD (MEMBER) | 9/03/18 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Costs order made | ||
| B | |||
| PDF Version |
| Parties: | GM |
Catchwords: | Guardianship and Administration Application under Guardianship and Administration Act 1990 (WA) for the filing of accounts by attorneys appointed under an enduring power of attorney Donor deceased Application by the attorneys for their costs under s 87 of the State Administrative Tribunal Act 2004 (WA) Conduct of applicant unreasonable in the circumstances Application made for ulterior purpose Costs order made |
Legislation: | Administration Act 1903 (WA) Guardianship and Administration Act 1990 (WA), s 16, s 16(5), s 109 State Administrative Tribunal Act 2004 (WA), s 60, s 87, s 87(1), s 87(2) |
Case References: | BFO & ORS and KPW [2014] WASAT 68 EW [2010] WASAT 91 GA and EA and GS [2013] WASAT 175 J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242 JB and KH [2014] WASAT 152 KS [2008] WASAT 29 KS No (2) [2008] WASAT 167 MB and MM [2017] WASAT 51 Medical Board of Western Australia and Kyi [2009] WASAT 22 PHQ and LPQ [2015] WASAT 5 VT [2015] WASAT 147 Winterbourn and Western Australian Planning Commission [2013] WASAT 72 |
Orders | |
Summary | The applicant commenced proceedings in the Tribunal on 4 May 2017 pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) for an order requiring attorneys appointed under an enduring power of attorney (EPA) to file financial records of the donor kept by them as attorneys. The donor of the EPA had died in 2016.,The applicant withdrew his application four days prior to the final hearing. ,Orders had been made by the Tribunal for the filing of affidavits and written submissions by the parties and much if not most of the legal work had been completed at the time of the withdrawal of the application.,The attorneys submitted that the application had no reasonable prospect of success, that it was made for an ulterior purpose and that the applicant acted unreasonably in maintaining the application and then withdrawing it only four days prior to the final hearing. In these circumstances they argued that a costs order should be made against the applicant pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).,Costs were awarded. The Tribunal found that the allegation made by the applicant of possible misappropriation of funds of the donor by the attorneys justified the attorneys seeking legal representation but that the evidence provided by the applicant in the form of his affidavits filed in the course of the proceeding did not support or refer to that allegation. ,The Tribunal found that the applicant had unreasonably refused an offer made by the attorneys to inspect financial records of the donor prior to commencing proceedings when such an inspection may have addressed his stated concerns of a lack of transparency on the part of the attorneys in their management of the affairs of the donor.,The Tribunal found that it could be inferred from the material filed by the applicant that the application to the Tribunal was made for a ulterior purpose being the dissatisfaction of the applicant with the execution of and the terms of a will of the donor which the applicant regarded as unfair. ,In all these circumstances the Tribunal determined that a costs order would be made and ordered part of the costs incurred by the attorneys be paid by the applicant. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : GM [2018] WASAT 18 MEMBER : MS F CHILD (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 9 MARCH 2018 FILE NO/S : GAA 1275 of 2017 BETWEEN : GM
- Represented Person
Catchwords:
Guardianship and Administration - Application under Guardianship and Administration Act 1990 (WA) for the filing of accounts by attorneys appointed under an enduring power of attorney - Donor deceased - Application by the attorneys for their costs under s 87 of the State Administrative Tribunal Act 2004 (WA) - Conduct of applicant unreasonable in the circumstances - Application made for ulterior purpose - Costs order made
Legislation:
Administration Act 1903 (WA)
Guardianship and Administration Act 1990 (WA), s 16, s 16(5), s 109
State Administrative Tribunal Act 2004 (WA), s 60, s 87, s 87(1), s 87(2)
Result:
Costs order made
Summary of Tribunal's decision:
The applicant commenced proceedings in the Tribunal on 4 May 2017 pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) for an order requiring attorneys appointed under an enduring power of attorney (EPA) to file financial records of the donor kept by them as attorneys. The donor of the EPA had died in 2016.
The applicant withdrew his application four days prior to the final hearing.
Orders had been made by the Tribunal for the filing of affidavits and written submissions by the parties and much if not most of the legal work had been completed at the time of the withdrawal of the application.
The attorneys submitted that the application had no reasonable prospect of success, that it was made for an ulterior purpose and that the applicant acted unreasonably in maintaining the application and then withdrawing it only four days prior to the final hearing. In these circumstances they argued that a costs order should be made against the applicant pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).
Costs were awarded. The Tribunal found that the allegation made by the applicant of possible misappropriation of funds of the donor by the attorneys justified the attorneys seeking legal representation but that the evidence provided by the applicant in the form of his affidavits filed in the course of the proceeding did not support or refer to that allegation.
The Tribunal found that the applicant had unreasonably refused an offer made by the attorneys to inspect financial records of the donor prior to commencing proceedings when such an inspection may have addressed his stated concerns of a lack of transparency on the part of the attorneys in their management of the affairs of the donor.
The Tribunal found that it could be inferred from the material filed by the applicant that the application to the Tribunal was made for a ulterior purpose being the dissatisfaction of the applicant with the execution of and the terms of a will of the donor which the applicant regarded as unfair.
In all these circumstances the Tribunal determined that a costs order would be made and ordered part of the costs incurred by the attorneys be paid by the applicant.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
BFO & ORS and KPW [2014] WASAT 68
EW [2010] WASAT 91
GA and EA and GS [2013] WASAT 175
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242
JB and KH [2014] WASAT 152
KS [2008] WASAT 29
KS No (2) [2008] WASAT 167
MB and MM [2017] WASAT 51
Medical Board of Western Australia and Kyi [2009] WASAT 22
PHQ and LPQ [2015] WASAT 5
VT [2015] WASAT 147
Winterbourn and Western Australian Planning Commission [2013] WASAT 72
Background
1 These are the reasons for the decision of the Tribunal on an application by JP and GP (respondents) seeking a costs order against WG (applicant) pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
2 The application for costs followed the withdrawal of the applicant's application made pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) four days prior to the final hearing of that application.
3 The respondents were appointed jointly and severally under an enduring power of attorney (EPA) executed by GM (donor) on 26 September 2011. The donor died on 26 November 2016. The applicant is the brother of the donor. One of the respondents, JP, is the niece of the donor (and of the applicant) and the second respondent is JP's spouse.
Proceeding before the Tribunal
4 On 4 May 2017 the applicant filed an application pursuant to s 109(1)(a) of the GA Act in respect of an EPA of the donor. The following reasons are set out in the application filed:
Despite requests from various family members, Mr [name suppressed], in his capacity as Enduring Attorney of the late [donor], failed to provide details of the Deceased's finances to other family members. There is a concern that items of [jewellery] belonging to the Deceased were distributed prior to her death and without her consent, and that some of the Deceased's funds may have been misappropriated.
5 The application seeks an order for the filing of records and accounts kept by the attorneys for the entire period that (the second respondent) was the enduring attorney for the deceased.
6 The applicant states his interest in making the application is that he is the brother of the deceased and is a beneficiary of her estate either pursuant to the terms of a will dated 23 May 2012 or pursuant to the terms of the Administration Act1903 (WA).
7 The application was listed for directions on 6 June 2017 following which the applicant was ordered to file and serve affidavits outlining the applicant's concerns in relation to the management of the estate of the donor during the time the respondents acted as attorneys. The applicant filed an affidavit on 3 July 2017 and affidavits were also filed by SG (the daughter of the applicant) and DW (a niece of the applicant).
8 On 19 July 2017 at a further directions hearing the respondents were ordered to file and serve responsive affidavits. The respondents each filed an affidavit and in addition there were further affidavits filed in support by other family members.
9 On 23 August 2017 at a further directions hearing both parties were ordered to file and serve submissions and the matter was listed for final hearing on 23 October 2017.
10 On 18 October 2017 the applicant sought the leave of the Tribunal to withdraw his application as he was elderly and did not want to pursue the matter because of the stress caused to him.
11 Leave to withdraw was granted by order dated 19 October 2017.
12 On 23 October 2017, following advice that the respondents intended to seek their costs, the Tribunal made orders for the filing of submissions by the parties and ordered that the costs application be determined on the papers pursuant to s 60(2) of the SAT Act.
The application for costs
13 On 15 November 2017 the respondents' solicitors filed submissions in support of a costs order being made against the applicant.
14 The applicant filed a responsive submission on 5 December 2017.
15 On 11 December 2017 in response to a request from the Tribunal a 'summary bill of costs for assessment' was filed on behalf of the respondents.
16 An amount of $23,609.95 is claimed made up of the following:
Getting up $ 5,272.30
Written submissions $ 6,427.95
Affidavits (5 affidavits) $ 3,483.05
Conferrals with the applicant's lawyers $ 2,811.60
Notices drafting and perusing $ 1,047.85
Costs submissions $ 3,696.00
Hearings $ 871.20
Total (itemised as subtotal) $23,609.95
Costs under s 87 of the SAT Act
17 Section 87 of the SAT Act 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.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(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.
18 Section 16 of the GA Act deals with costs of proceedings before the Tribunal commenced under the GA Act. Section 16(5) of the GA Act provides that nothing in the GA Act limits any other power of the Tribunal under the SAT Act.
19 The starting position in respect of legal costs for proceedings before the Tribunal is therefore that parties bear their own costs. There is however a discretion under s 87(2) of the SAT Act to make an order for costs in some circumstances.
20 The respondents submit that the principles to be applied by the Tribunal to determine whether costs ought be awarded under s 87(2) of the SAT Act are set out in Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73] [74].
… if 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, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation 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[.]
Thus the Tribunal's discretion to award costs extends to ordering the payment of costs incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings. … [I]t will usually be necessary to show that the conduct of the party was unreasonable and unfairly caused the increased costs.
21 In support of their application for a costs order, the respondents submit that:
a) The applicant made broad allegations of impropriety against them however affidavits filed in support of his application do not establish that any allegations of impropriety or requests for financial documents of the donor were made prior to October 2015.
b) The applicant has not put forward any evidence of misappropriation of funds by them.
c) Affidavits filed in support of the application by the applicant and by other family members include numerous paragraphs which relate to the making of wills by the donor or the distribution of assets pursuant to the will of the deceased donor. It is submitted that the Tribunal does not have jurisdiction to determine the validity of a will or the administration of the deceased estate and as such the applicant's evidence is directed at matters which are outside the scope of the application and that the inference ought to be drawn that the application has been made for ulterior purpose; as an information gathering exercise to subsequently challenge the validity of the donor's will or the distribution of her deceased estate pursuant to the will.
d) The applicant failed to take up offers by or on behalf of the respondents:
i) to inspect accounts of the donor made in October 2016;
ii) to inspect the donor's records at the office of an accountant after her death; and
iii) for mediation of the dispute.
It is argued that by the failure of the applicant to take up these offers, and proceeding to lodge the s 109(1) of the GA Act application, he acted unreasonably and caused the donees to incur increased costs in responding to the application.
e) Finally, the withdrawal of the application by the applicant for the reasons that he is elderly and did not want to take the matter further only four days before the listed hearing is unreasonable in the circumstances.
22 In response the applicant says:
a) the onus is on the respondents to establish the claim for costs is reasonable;
b) there is no clear evidence of an ulterior purpose on the part of the applicant for bringing the application in the material filed. The validity of the donor's will is a separate issue; and
c) it is asserted that there were genuine attempts to resolve the dispute and the withdrawal prior to the hearing was reasonable because of the obstructive behaviour of the respondents and not a recognition of the weakness of the applicant's case.
23 The applicant submits and the Tribunal accepts that the Tribunal needs to be satisfied the costs incurred are reasonable and not excessive (PHQ and LPQ [2015] WASAT 5 (PHQ) at [42]).
24 The respondents' application for costs is asserted on three main grounds:
1) the application was always untenable and lacking in substance;
2) the conduct of the applicant in commencing the application was unreasonable in the circumstances; and
3) the application was commenced for an ulterior purpose.
Was the application lacking in substance?
25 It is argued by the respondents that the application was untenable however the possibility, even the probability, that orders would not be made does not of itself support the making of the costs order against the applicant. This is particularly so in the context of s 87(1) of the SAT Act and the protective jurisdiction of the GA legislation (see MB and MM [2017] WASAT 51 at [63]).
26 It is necessary to canvass some of the law in relation to applications made under s 109(1) of the GA Act to contextualize the application made by the applicant in this case.
27 Pursuant to s 109(1)(a) of the GA Act, the Tribunal may make an order requiring the donee of an EPA to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made in connection with the power.
28 The general supervisory jurisdiction of the Tribunal to make such an order requiring the filing of records kept by attorneys has been held to continue after the death of the donor of the EPA (KS [2008] WASAT 29).
29 To make the order sought under s 109(1)(a) of the GA Act the Tribunal must be satisfied that the applicant has:
1) a proper interest in the matter (the matter being the conduct of the EPA by the attorneys); and
2) there is something which requires an inquiry (EW [2010] WASAT 91) (EW).
30 In EW three factors were considered to give the applicant a proper interest for orders under s 109(1) of the GA Act; that the applicant had a close relationship with the donor, he was a beneficiary under the donor's will and allegations had been made that there was a 'shortfall' in the deceased estate.
31 In KS (2) [2008] WASAT 167 (KS No 2), where the applicant's son, who was a beneficiary of the donor's deceased estate but was estranged from the donor, the Tribunal accepted that the schedule of assets submitted for probate by the executor (who was also the attorney acting under an EPA) did not reflect what the applicant believed to be the value of the estate of the donor. In the circumstances that there had been a transfer of significant funds of the donor to the attorney in the lifetime of the donor, the Tribunal made the orders sought.
32 In this case, the applicant is a brother of the donor. During the lifetime of the donor, the applicant states he expressed concerns to the attorney whether the donor had sufficient funds to meet her needs and in his affidavit refers to a family meeting at which the cost of her nursing home fees were discussed.
33 Although not directly addressed in his affidavit dated 3 July 2017 it appears the applicant maintained a relationship with the donor up until her death. However, (at paragraph 28 of his affidavit) the applicant states that he had 'very limited involvement' in the donor's financial affairs.
34 The applicant states that the respondents did not discuss the (financial and legal) arrangements of the donor with him. In particular, they did not discuss the sale of her home in Victoria (which is understood to have occurred in 2011), the purchase of the unit in Western Australia (2011), the making of the second will in 2012 and the dealings with the donor's share portfolio.
35 The applicant said that when he became aware of the 'second' will made by the donor in 2012 he took the decision not to ask her about it. In the affidavits filed the applicant does not refer to the donor discussing her financial affairs with him.
36 In the affidavit of DW (a niece of the donor) dated 30 June 2017, she states that when she raised her concerns about a lack of transparency on the part of the respondents in respect of the donor's financial affairs with the donor, the donor is reported to have said 'I have nothing to hide, I want all of the information to be made available to the family'.
37 It is not clear when this conversation is said to have taken place but likely after 2014 when communication between DW and the respondents was said to be limited and the relationship was reported to be strained.
38 If the sharing of her financial information with all members of the family was the expressed wish of the donor it is unclear whether any action was taken to give effect to this wish. There is no reference in DW's affidavit or any of the other material before the Tribunal to this wish being conveyed to anyone on behalf of the donor.
39 Whatever the position, I consider that it can be inferred from all of this material that the donor had not had the practice of discussing financial matters with the applicant.
40 The applicant refers to unwillingness on the part of the respondents as attorneys to share information with him in the donor's lifetime. This submission is made despite an offer in 2016 to provide access to inspect financial records of the donor through his daughter. That the offer was made is acknowledged by the applicant on his affidavit at paragraph 69 and in his daughter (SG's) affidavit at paragraph 39 and 40.
41 Perceived lack of transparency on the part of attorneys operating under an EPA giving rise to suspicions of misconduct in the minds of others is a common complaint in this jurisdiction. Greater transparency on the part of persons managing the affairs of others might in some cases reduce such suspicions. However, even if it was the case that these attorneys did not provide the requested information, the question must be asked, does it follow that the financial affairs of a donor of an EPA should be discussed with others, even with family members, where the donor herself has not had the practice of sharing information with the person seeking the information. In VT [2015] WASAT 147 at [66] the Tribunal found that there was 'no inherent obligation for an attorney to disclose information'.
42 In the context of an application pursuant to s 109(1) of the GA Act the Tribunal has identified the general supervisory role of the Tribunal in respect of EPAs and the protective nature of the jurisdiction and it is 'likely that any person raising a genuine, reasonably based, allegation that an attorney has misappropriated funds or otherwise failed to comply with his/her obligations will have a "proper interest"' (BFO & ORS and KPW [2014] WASAT 68 (BFO) at [28].
43 However, the 'mere fact that an applicant is a relative of the donor of an EPA' (BFO at [26]) or is a beneficiary of the deceased estate of the donor (KS No 2 at [46]) has not on its own been found to be sufficient to give that person a proper interest under s 109 of the GA Act.
44 In the application filed, the applicant stated that his interest, (in addition to his relationship as a brother of the donor and his entitlement in her deceased estate) is that 'items of [jewellery] belonging to the Deceased were distributed prior to her death and without her consent, and that some of the Deceased's funds may have been misappropriated'.
45 The serious allegation of 'possible misappropriation' by the attorneys is not referred to again in the affidavits and subsequent material filed by the applicant.
46 In respect of allegation that jewellery of the donor was distributed prior to her death without her consent: a string of pearls is said to have been given to one of the respondents. It is argued by the respondents that this occurred prior to the execution of the EPA and so is not a transaction caught by s 109 of the GA Act. The affidavit of DW appears to support this and refers to the timing of this gift as occurring in early 2011 after the donor's move from Victoria.
47 In respect of the distribution of rings, it appears to be common ground that rings of the donor were distributed to nieces of the donor; the daughters of the applicant, SG and her sister W and to DW a sister of one of the donees in or around October 2016. The gift to SG is acknowledged in SG's affidavit (but not referred to in the affidavit of DW). The allegation in the original application that the gift of the rings was made without the consent of the donor is not supported in the affidavits filed.
48 Although in the affidavits and other material filed by family members in support of the applicants make reference to ill health, depression, memory problems (as far back as 2008) and frailty of the donor, there is no medical or other evidence before the Tribunal which directly puts in issue the capacity of the donor to direct her attorneys regarding the gifting of the rings (or other matters) at the time these gifts were made.
49 Even if the Tribunal determines that an applicant for orders under s 109 of the GA Act has a 'proper interest' it does not mean that the Tribunal will necessarily exercise its discretion to make the orders sought. As set out in GA and EA and GS [2013] WASAT 175 (GA and EA andGS) (citing EW) to exercise that discretion, the Tribunal must determine there is some reason to warrant an enquiry into the operation of the EPA.
50 Since the application was withdrawn these questions do not have to be finally determined. However, the bare allegation of a lack of transparency on the part of the attorneys, (even if this was the case) in the circumstances and the lack of evidence provided by the applicant to support his allegation of a 'possible misappropriation' of funds of the donor and distribution of her jewellery without her consent, on a preliminary view of the material filed, does not support an exercise of that discretion. However, as there was no final hearing to determine all the relevant facts in the case, the Tribunal would be unwilling to find that the application was untenable. The Tribunal should not lightly award costs where it is simply a weak case as this would be counter to the objectives of the Tribunal to ensure access to persons bringing matters to the Tribunal.
Was the application commenced unreasonably?
51 Costs orders have been made in the past where the applicant has acted unreasonably, where the applicant had an ulterior purpose in commencing the proceedings or where the proceedings were maintained unreasonably and this caused the other party to incur costs unnecessarily.
52 The applicant asserts that the proceeding in the Tribunal was only commenced as the attorneys were obstructive to the efforts of the applicant to obtain financial information of the donor.
53 In an email addressed to the applicant dated 17 February 2017, prior to the proceedings being commenced in the Tribunal, the attorneys said:
We note that you have given instructions to file a SAT application for [the donor's] financial records.
We have always been open to an appropriate process to examine these records.
At no time prior to this have we received a clear formal request for information regarding [the donors] finances.
However, as you should be aware, we spoke to [S - the applicant's daughter] 6 months ago and offered to give her (accompanied by you if desired) access to [the donor's] records if you required reassurance that her affairs were being handled competently and honestly.
She declined this offer stating she didn't want to be responsible for answering anyone's queries at a later date.
We are more than happy to give all records to your accountant, [name deleted] (whom we also use), so you can obtain an independent, professional assessment.
54 If it was the case, that the applicant wished to satisfy himself that the respondents had dealt with the donor's estate in an appropriate manner during the period they acted as her attorneys it may have been a starting point to take up the offer to view the records at the office of an accountant as offered by the respondents. The rejection of this offer and an insistence on the delivery of the documents to the offices of the applicant's solicitor for the period of the operation of the EPA, that is from 2011 appears to be a uncompromising position to adopt and unreasonable in the context of the offer made.
55 Had the applicant taken up the offer of inspection of the records at the accountant's office he may have been better informed about the conduct of the affairs of the donor and may have been reassured that there was no misappropriation of the donor's funds. On the other hand, if he remained dissatisfied with the information provided as it was incomplete or he had been alerted to some anomaly in the accounts inspected he could then have proceeded with the application to the Tribunal for the filing by the attorneys of the records kept by them.
56 On 21 March 2017 the sister of the donor (and of the applicant) and her spouse wrote to the applicant and indicated that the matter could be:
… adequately handled by mediation assisted by an independent mediator. This would obviate the potential of incurring extremely high legal fees, something that I am sure you would agree that that [the donor] would have been vehemently opposed[.]
57 In light of these exchanges the Tribunal does not accept there was a genuine attempt to resolve the matter by the applicant prior to commencement of proceedings or that the respondents were obstructive to him accessing the donor's records.
58 Considering the correspondence submitted by the parties regarding the proposed mediation it seems to the Tribunal that each of the representatives of the parties blame the other for the offer of mediation not being advanced and it appears that there was not a concerted effort on either side to progress the possibility of mediation in an effort to settle the dispute and minimise the legal costs to all the parties. The Tribunal considers this factor should be taken into account in determining the amount of costs recoverable by the respondents.
Was the application made for an ulterior purpose?
59 The respondents' submission is that the application was made for an ulterior purpose, that is, the application relates to the making of the donor's wills and or the distribution of assets pursuant to her will and not the conduct of the affairs of the donor in her lifetime pursuant to the EPA.
60 In support of this assertion, reference is made to the affidavits of the applicant (and of other family members filed in support of his application), which it is argued focus on the wills of the donor. There is also reference to the original letter from the applicant's solicitors to the respondents dated 15 February 2017, which refers to the grant of probate of a will of the donor dated 23 May 2012. The letter advises that the applicant has instructed his solicitors to conduct an investigation of the making of wills of the donor including her testamentary capacity and to file an application to the Tribunal under s 109(1)(a) of the GA Act.
61 In the affidavit of the applicant dated 3 July 2017 he expresses concern about the distribution of the deceased estate according to the second will. At paragraph 53 he deposes that he asked one of the attorneys whether she 'got special treatment in the Second Will'. A copy of the will is annexed to the affidavit.
62 The affidavit of DW (paragraph 42) refers to the 'imbalance' in provision in the will of the donor between the two sides of the family.
63 In his affidavit dated 4 December 2017 in response to the respondents seeking their costs, the applicant deposes that he is 82 years of age and that he was unaware of the 'second will' dated 23 May 2012 until late 2012 and only became aware of its terms after the death of the donor.
64 He says:
… I had initially intended to instruct [solicitors] to investigate the facts and circumstances surrounding [the deceased's] making the 2012 Will. I am of limited funds and I formed the view that I could not afford to fund the enquiries that would be necessary to ascertain the facts and circumstances surrounding [the deceased] making the 2012 Will.
However, I still had concerns in relation to the respondents' dealing whilst acting as the joint Enduring Attorneys of [the deceased]
…
As [they] were unwilling to produce the records to me voluntarily, I instructed [the solicitors] to file the application[.]
The application has caused me considerable stress and I remain disappointed at what I perceived to be the lack of transparency … in relation to their acting as Enduring Attorneys for [the deceased][.]
65 This present case can be distinguished from EW and KS No 2 where the interest asserted was that of a beneficiary of the deceased estate. In both of these cases the matter raised was the extent of the deceased estate of the donor at death and not the terms of its distribution. In both cases cited the applicant asserted that the estate had been diminished during the period of the existence and/or operation of an EPA.
66 In this case the applicant does not make any such assertion but rather says that the bequests in the second will of the donor are very different to those provided for in her earlier will and that they greatly favour his sister's side of the family, his sister being the mother of one of the joint attorneys.
67 From the affidavits of the applicant it appears to the Tribunal that the application for intervention in the EPA was only initiated after the death of the donor and only after the applicant became fully aware of the terms of the donor's will.
68 The point is made on behalf of the respondents that any challenge to the validity of the will of the donor or distribution of her deceased estate according to the will is the jurisdiction of the Supreme Court not that of the Tribunal. The applicant's own statement is that he lacked funds to initiate an investigation which taken to its conclusion would have meant that proceedings would need to be initiated in the Court. The inference can be drawn from this and the other material filed that the proceedings were commenced in the Tribunal to address his concerns about the second will of the donor.
69 In GA and EA and GS the Tribunal, constituted by the Deputy President and two other members determined that a costs order would be made against unrepresented applicants in a proceeding under s 109(1)(a) and s 109(1)(b) of the GA Act when the Tribunal found that the applications had been maintained for an ulterior purpose, 'outside the scope' of the provisions and maintained for an information gathering exercise in other proceedings.
70 As noted above when making an order for costs the Tribunal must consider the intent of s 87 of the SAT Act and the need to preserve access of persons to bring proceedings in the Tribunal without fear of a costs order. However there is an obligation for parties to act reasonably and not to invoke the Tribunal's processes for an ulterior purpose (GA and EA and GS at [48])
71 In respect of this matter the commencement of the proceeding for orders under s 109(1)(a) and s 109(1)(b) was unreasonable as the applicant had, prior to that commencement, been offered access to inspect the donor's accounts. It is more likely than not that the proceeding was brought and maintained for a purpose outside the scope of s 109(1)(a) and s 109(1)(b) of the GA Act; that being the dissatisfaction of the applicant with the distribution of the donor's deceased estate according to the donor's will.
Quantum of costs
72 Although the bill of costs is styled as summary bill of costs for assessment and reference is made to an assessment of costs pursuant to s 89 of the SAT Act, as said in JB and KH [2014] WASAT 152 at [91] and PHQ at [41], the Tribunal does not tax costs in the way that courts do. The Tribunal confirmed in those cases that the Tribunal 'approaches the task of fixing costs to be awarded in a broad and relatively robust fashion; see Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)'.
73 In respect of the costs claimed this is not a novel type of matter and did not involve any legal complexity. However bearing in mind the allegation made of possible misappropriation by the attorneys the applicant being legally represented and apparently unwilling to respond to their efforts to resolve the matter less formally.
74 Although the matter was withdrawn prior to the final hearing, given the lateness of the withdrawal it is accepted that the work was largely done which is evidenced by the submission filed with the application for costs.
75 It has always been the position that an award of costs is not intended to be a full indemnity for the actual expense incurred by a party to a proceeding. Further as noted earlier, the Tribunal must be satisfied that the claim is reasonable.
76 In Winterbourn and Western Australian Planning Commission [2013] WASAT 72 (Winterbourn) at [44], Parry J citing J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242 at [38]:
… the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach … proceedings in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order.
77 At [45] in Winterbourn, Parry J further stated:
In Medical Board of Australia and Costley [2013] WASAT 2 the Tribunal said the following at [66] in relation to costs assessments:
… In our view, in matters of this nature, 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[.]
79 The respondents' solicitor was advised of the intention to withdraw the application by the solicitor for the applicant on 17 October 2017, the day the written submissions were to be filed and four working days before the hearing listed on Monday 23 October 2017.
80 Leave was granted to withdraw by order dated 19 October 2017.
81 The late application for withdrawal of the application did unnecessarily add to the respondents' costs. However, the quantum of costs claimed, is, in light of the nature of the application and the jurisdiction, excessive.
82 The Tribunal finds an appropriate and fair amount of legal costs to be paid by the applicant to the respondents is $8,314.25.
83 This is a calculation based on the hourly rate of the senior practitioner ($396 per hour inclusive of GST) $3,960 (allowing 10 hours for the getting up, written submissions and conduct of the matter) $3,483.05 for the preparation of the affidavits ordered to be filed by the Tribunal; and $871.20 for attendance at the directions hearings. h
84 This assessment is calculated by allowing for what the Tribunal considers a reasonable fee for the work required in this type of matter.
Order
It is ordered that:
1. By 23 May 2018 the applicant shall pay to the respondents the sum of $8,314.25 as a contribution to their legal costs.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER
15
3