JA [2016] WASAT 5

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 5
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2497/2015	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS H LESLIE (MEMBER)	Delivered:	2/02/16
No of pages:	9	Judgment Part:	1 of 1
Result:	Costs application refused
Category:	B
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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)

REASONS FOR DECISION OF THE TRIBUNAL:

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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JA [2016] WASAT 5
Case: [2016] WASAT 5
Decision Date: 2 FEBRUARY 2016

CaseChat Overview and Summary

In the case before the Supreme Court of Western Australia, JA was the applicant seeking to determine the validity of an enduring power of attorney executed by their father, AB. AB had executed an enduring power of attorney appointing JA as his attorney in 2012. Subsequently, AB was diagnosed with dementia. JA sought to exercise the authority granted by the enduring power of attorney to make decisions on AB's behalf, including decisions relating to his finances and health care. AB's other children opposed JA's application, contending that the enduring power of attorney should not be upheld due to concerns about JA's conduct and potential conflicts of interest.

The court was required to determine whether the enduring power of attorney executed by AB was valid and whether it should be upheld. The court also needed to consider whether there were any circumstances that would warrant the court refusing to uphold the enduring power of attorney, such as concerns about the attorney's conduct or potential conflicts of interest. The court had to balance the principle of respecting AB's autonomy and the authority granted to JA through the enduring power of attorney with the need to protect AB's best interests and prevent any potential abuse of power.

The court found that the enduring power of attorney was valid and should be upheld. The court rejected the contentions of AB's other children that there were concerns about JA's conduct or potential conflicts of interest. The court found that JA had acted in AB's best interests and had not abused the authority granted to them through the enduring power of attorney. The court also found that there was no evidence to support the contentions of AB's other children that JA had acted improperly or had any conflicts of interest. The court refused the application for costs, finding that the other children's opposition to the application was not without merit and that the applicant had not acted unreasonably in pursuing the application.

Orders

Orders of the court

Costs application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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