JA
[2016] WASAT 5
•2 FEBRUARY 2016
JA [2016] WASAT 5
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 5 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2497/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS H LESLIE (MEMBER) | 2/02/16 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Costs application refused | ||
| B | |||
| PDF Version |
| Parties: | JA |
Catchwords: | Guardianship and Administration Act 1990 (WA) Enduring power of attorney Costs Conduct |
Legislation: | Family Provision Act 1972 (WA) Guardianship and Administration Act 1990 (WA), s 16(1), s 107(1)(b), S 109, s 109(1)(a), s 109(1)(b) State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(1), s 87(2) State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 427 |
Case References: | A and J [2006] WASAT 287 Chew and Director General of the Department of Education and Training [2006] WASAT 248 EW [2010] WASAT 91 KS [2008] WASAT 29 Pearce & Anor and Germain [2007] WASAT 291 (S) |
Summary | An application by an attorney under an enduring power of attorney for her costs of defending an application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) was refused on the basis that the applicant's conduct in bringing the application was neither vexatious nor unreasonable in all the circumstances. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JA [2016] WASAT 5 MEMBER : MS H LESLIE (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 2 FEBRUARY 2016 FILE NO/S : GAA 2497 of 2015 BETWEEN : JA
- Donor
Catchwords:
Guardianship and Administration Act 1990 (WA) Enduring power of attorney Costs Conduct
Legislation:
Family Provision Act 1972 (WA)
Guardianship and Administration Act 1990 (WA), s 16(1), s 107(1)(b), S 109, s 109(1)(a), s 109(1)(b)
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(1), s 87(2)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 427
Result:
Costs application refused
Summary of Tribunal's decision:
An application by an attorney under an enduring power of attorney for her costs of defending an application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) was refused on the basis that the applicant's conduct in bringing the application was neither vexatious nor unreasonable in all the circumstances.
Category: B
Representation:
Counsel:
Donor : N/A
Solicitors:
Donor : N/A
Case(s) referred to in decision(s):
A and J [2006] WASAT 287
Chew and Director General of the Department of Education and Training [2006] WASAT 248
EW [2010] WASAT 91
KS [2008] WASAT 29
Pearce & Anor and Germain [2007] WASAT 291 (S)
The application
1 VA, one of the daughters of JA and the holder of her enduring power of attorney (EPA), applies for costs in the sum of $4,422 under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) against her sister, FL, who made the original substantive application to the Tribunal under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act).
2 The application for costs is opposed. Both parties have filed submissions in relation to the application for costs.
The history
3 The history of the matter is as follows. VA was the holder of her late mother's (JA's) EPA and operated in that role (as attorney) for a brief period prior to the death of JA on 26 June 2014.
4 JA died intestate and there is a dispute between the children of JA as to how her estate should be managed and by whom.
5 Further, there is an issue about the actions of VA as attorney. FL sought explanation from VA of certain financial transactions made by her in the exercise of the role of attorney, particularly expenditure of over $60,000 from JA's bank account. No response satisfactory to FL was received regarding these matters.
6 By December 2014, FL had flagged her intention to make an application under the Family Provision Act 1972 (WA) concerning the estate of JA. She continued to request information from VA about the expenditure from the bank account.
7 On 9 April 2015, VA initiated proceedings in the Supreme Court probate jurisdiction to be appointed as sole administrator of JA's estate. FL opposed that action and in May lodged a caveat in those proceedings. She sought time to clarify the expenditure issues in the context of questioning VA's suitability to be the administrator of the estate, and sought time to consider an independent administrator's appointment.
8 By letter dated 21 May 2015 from her lawyers to FL, VA sought to explain the use of funds from JA's account queried by FL. No vouchers were offered or other corroboration extended.
9 On 10 June 2015, FL applied to the Tribunal for an order under s 109(1)(a) of the GA Act seeking disclosure by VA of all records and accounts kept by her during the period that she acted as attorney for JA. FL alleged that her previous requests for the same had not been met.
10 On 15 June 2015, VA made application in the Supreme Court for the removal of the caveat lodged by FL. Her affidavit in support annexed the letter of 21 May 2015 referred to above. The information provided thus became sworn, however no vouchers or other documentation corroborating the expenditure explanation by her were attached.
11 Directions on the s 109 application were issued by the Tribunal on 16 June 2015 and the matter was listed for hearing in August 2015.
12 Notice of this was posted to VA and other parties on 22 June 2015.
13 On 25 June 2015, by email request to the Tribunal, VA foreshadowed an application by her under s 109(1)(b) of the GA Act for an order that the accounts kept under the EPA be audited, it being her desire 'that [the] matter be completely resolved' and it being her view that 'the only way for that to happen is for the accounts relevant to the [EPA] (sic) be audited'.
14 The outcome of the application to the Supreme Court for the removal of the caveat in probate is unknown to the Tribunal.
15 A further related Supreme Court matter between the parties appears to have been commenced in July 2015 (CIV 2146/2015).
16 On 27 July 2015, FL (who is a lawyer) lodged a Notice of Legal Representation by Counsel in the Tribunal.
17 On 5 August 2015, such a notice was lodged on behalf of VA.
18 On 10 August 2015, the s 109(1)(a) application and VA's flagged oral application under s 109(1)(b) for an audit came before the Tribunal. Both parties were represented. After a relatively short hearing, the flagged oral application was held over and the s 109(1)(a) matter was adjourned part heard for further hearing on both matters on 20 October 2015 following a consideration of relevant matters by the lawyers.
19 On 13 October 2015, the parties were directed to advise in writing by midday the day prior to the hearing, that is, 19 October 2015, what orders they sought.
20 On 14October 2015, VA's counsel advised by letter that she was seeking an order that FL's application be dismissed.
21 On 19 October 2015, the day before the further hearing, the applicant indicated by email that in view of the progress of the Supreme Court proceedings commenced in July and the discovery processes available therein, she did not wish to proceed with her application in the Tribunal. Leave to withdraw was granted. As the flagged oral application for an audit had not been formally made on VA's behalf by that time, it did not require to be dealt with.
22 VA now applies for the costs incurred by her in relation to the Tribunal proceedings to be paid by FL under s 87(2) of the SAT Act.
The law
23 Section 87 of the SAT Act relevantly provides:
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(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.
24 Section 16(1) of the GA Act was repealed when the Tribunal commenced in January 2005 (s 427 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). It had provided, in terms similar to s 87 of the SAT Act, that parties to proceedings under the GA Act bear their own costs: A and J[2006] WASAT 287.
25 Section 87(1) of the SAT Act establishes that the starting point in proceedings before the Tribunal is that parties bear their own costs. In decisions of the Tribunal in GA Act matters and in other jurisdictions of the Tribunal, costs applications are considered within the context of the obligations of the Tribunal to act speedily and with as little formality as is practicable, and minimise costs to the parties, consistent with the obligations and objectives of the Tribunal as set out in s 9 of the SAT Act.
26 Although the Tribunal has a broad discretion to award costs, in the appropriate case, under s 87(2) of the SAT Act, it will need a good reason to depart from the general principle in s 87(1) of the Act. There is no statutory (or other) entitlement to costs.
27 In respect of the present application for costs, the first question is: why should the Tribunal depart from the principle in s 87(1) of the SAT Act?
28 In Pearce & Anor and Germain[2007] WASAT 291 (S), Chaney J considered the exercise of the discretion in s 87(2) of the SAT Act at [22]:
In Summerville, Barker J observed that s 87 does not identify factors to be taken into account by the Tribunal in exercising its jurisdiction under s 87(2), and it is not appropriate for the Tribunal to attempt finally to delineate the particular circumstances in which the discretion to award costs will be exercised. Costs orders have most commonly be made [sic] in the Tribunal in circumstances of the type identified by Deputy President Judge Eckert in Chew and DirectorGeneral of the Department of Education and Training [2006] WASAT 248 at [85], being circumstances where a party has conducted itself unreasonably or inappropriately, particularly where that conduct gives rise to unnecessary costs being incurred by the other party.
(Tribunal emphasis)
29 In Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85], the Tribunal stated :
We take the view that in proceedings under the Act, the Tribunal should not generally make an award for costs unless 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. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
30 Other decisions are in a similar vein: there must be a good reason to depart from the usual position.
The applicant's position
31 The applicant submits that she is entitled to her costs. She claims that:
a) given existing Supreme Court proceedings, FL's application to the Tribunal was vexatious;
b) if not vexatious, FL's conduct in bringing the SAT application was unreasonable;
c) FL's late notice of her intention to withdraw her application was unreasonable and inappropriate; and
d) the application was fatally flawed and, in any event, without merit.
FL's position
32 FL opposes the application for costs. She claims that:
a) the Tribunal has been given a general supervisory jurisdiction in relation to EPAs even after the donor has died and therefore the application was not fatally flawed;
b) each party should bear their own costs; and
c) her conduct in bringing the proceedings in the Tribunal was neither vexatious nor unreasonable in all the circumstances.
Decision
33 It is clear to the Tribunal that at the time of the application, there was significant conflict and disagreement between the parties. The sisters were both acting unilaterally in relation to property forming part of JA's estate. They were not communicating. Other family members were involved to differing degrees in the dispute. Contentious probate proceedings had been instituted in the Supreme Court over how JA's estate should be administered. VA had initiated these proceedings. FL then sought to block them, pending explanation of the EPA issues and other questions. Trust between the parties was clearly absent. The atmosphere was not conciliatory.
34 The Tribunal has general supervisory jurisdiction in relation to EPAs even after the donor has died: EW[2010] WASAT 91and KS [2008] WASAT 29. Whether in any particular case that jurisdiction ought be exercised is a matter for decision on a case by case basis.
35 It is accepted that FL, as a daughter and beneficiary of the estate of her late mother, has a proper interest in seeking full and accurate details relating to the actions of VA acting under her mother's EPA inter vivos. FL is entitled to have recourse to the Tribunal in the ordinary way under law to seek the permitted information. The legislation anticipates just such a situation as this. A donee of an EPA is obliged by law to keep accurate records and accounts of all dealings and transactions made under the EPA (s 107(1)(b) of the GA Act). A mechanism has been laid down in the legislation (s 109(1)(a) of the GA Act) permitting a person with a proper interest to apply to the Tribunal for an order requiring the donee to file with the Tribunal and serve on the requesting party copies of those records and accounts.
36 It is accepted that as part of the disputed caveat proceedings in the Supreme Court, some aspects of this issue had been adverted to. FL filed documents pleading inter alia that, despite a number of requests, VA had refused to provide documents clarifying and vouching the expenditure from JA's account made by her under the EPA. It is accepted that VA swore an affidavit in those proceedings in which she sought to explain her actions as attorney. FL acknowledged in her application to the Tribunal that VA 'has sought to write about some transactions' that she (FL) had identified but that VA had 'failed to provide any written records or accounts'. This position continued after the application to SAT. In the view of the Tribunal, the tone of the exchanges between the lawyers and the parties did not disclose a cooperative or conciliatory tone.
37 In the view of the Tribunal, given the significant amount of money that was in issue and the climate of conflict and mistrust, it was reasonable for FL to press her request for further proof of the explanation given by VA and it was reasonable for her to endeavour to use the simpler and faster processes of the Tribunal, tailormade for just this situation, to attempt to resolve this aspect of what was fast becoming a complex multifaceted dispute between the parties.
38 In the view of the Tribunal it is not enough for VA to say that her affidavit in the Supreme Court dealt with the matter sufficiently and that, ultimately, those processes would have led to a process of discovery that would have resulted in the exchange of documents. Clearly, at the point at which the application to the Tribunal was being dealt with, VA had not indicated a willingness to provide access to all relevant written records, trust had evaporated and the mood exhibited by both parties was conflictual and litigious. VA's actions in this regard were, in the view of the Tribunal, not reasonable. Had the information requested simply been provided for verification of VA's actions by FL at an earlier stage, potentially both the Tribunal and the caveat proceedings may have been avoided.
39 The Tribunal rejects the submission that it was FL who was behaving unreasonably.
40 The Tribunal is not satisfied that FL's conduct in bringing the application in the Tribunal, and continuing with it up until 19 October 2015, was either vexatious or unreasonable. Nor was her application 'fatally flawed' or 'without merit'.
41 The Tribunal was clearly seized of jurisdiction in this application. Whether in the circumstances if called upon to do so, the Tribunal would have exercised that jurisdiction is a moot point, since the matter was not proceeded with and the information about the nature and scope of the July Supreme Court proceedings is incomplete. In any event, it is clearly the case that up until 19 October 2015, there remained a further live issue, which was VA's flagged oral application to the Tribunal for an audit order which was to have been further considered by the Tribunal had the matter proceeded.
42 In the circumstances the Tribunal is not satisfied that FL should pay VA's costs. The appropriate outcome is that each party should bear their own costs incurred in relation to these matters.
Order
1. The costs application by [VA] is dismissed.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, MEMBER
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