JB and KH [2014] WASAT 152

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 152
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2164/2014	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR D AITKEN (MEMBER)	Delivered:	11/11/14
No of pages:	25	Judgment Part:	1 of 1
Result:	Costs order made
Category:	B
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Parties:	JB CB KH SB
Catchwords:	Guardianship and administration Applications for orders for guardianship, administration and intervention in an enduring power of attorney Applications withdrawn at hearing Application for costs under s 87(2) of the State Administrative Tribunal Act 2004 (WA) Factors to be considered in determining a costs application under the Guardianship and Administration Act 1990 (WA) Costs ordered to be paid Whether a costs order can be made under s 87(2) of the State Administrative Tribunal Act 2004 (WA) against a party other than an applicant in a proceeding under the Guardianship and Administration Act 1990 (WA)
Legislation:	Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA), s 17, s 18 Guardianship and Administration Act 1990 (WA), s 3(1), s 4(3), s 16, s 40, s 40(1), s 43(1), s 64(1), s 64(1)(a), s 97(1), s 109, s 109(1)(c), s 112(4) State Administrative Tribunal Act 2004 (WA), s 5, s 9(b), s 32(7), s 34, s 36, s 37(3), s 87(1), s 87(2)
Case References:	Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (s) Pearce & Anor and Germain [2007] WASAT 291 (S) Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 PJC and RJC [2008] WASAT 224 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Summary	JB and CB sought payment of their legal costs incurred in respect of applications made to the Tribunal by KH seeking the appointment of a guardian for an administrator of the estate of JB (who is the mother of KH and CB) and intervention in an enduring power of attorney made by JB, which appointed CB as her attorney.,JB had instituted proceedings in the Supreme Court of Western Australia, through a lawyer, seeking the appointment of an independent trustee of two family trusts of which she is a beneficiary and the payment of monies which JB claims are owed to her by the family trusts. Those proceedings are being contested by four of JB's five children, with only CB supporting her claims.,In statements filed with the Tribunal, KH and her brother, SB made serious allegations regarding the capacity of JB and the conduct of both JB and CB. Both JB and CB were legally represented in the proceedings.,A Doctor's Guide from JB's long standing GP, was provided to the Tribunal, which stated that JB has full decisionmaking capacity and KH withdrew the applications. JB and CB applied for costs to be awarded to them against both KH and SB. ,The Tribunal considered the principles applicable to an application for costs under s 87(2) of the State Administrative Tribunal…

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: JB and KH [2014] WASAT 152
Case: [2014] WASAT 152
Decision Date: 11 NOVEMBER 2014

CaseChat Overview and Summary

In the case of JB and KH, the dispute involved applications for orders regarding guardianship, administration, and intervention under an enduring power of attorney. The matter was before the Supreme Court of Western Australia. The applicants had initiated proceedings seeking to establish guardianship and administration over the respondent's affairs. However, these applications were withdrawn at the hearing, and the applicants subsequently applied for costs under section 87(2) of the State Administrative Tribunal Act 2004 (WA). The court was tasked with determining the appropriate factors to consider in making a costs order under the Guardianship and Administration Act 1990 (WA) and whether such an order could be made against a party other than the applicant in a proceeding.

The court examined the relevant statutory provisions and the circumstances of the case to address the legal issues. It considered whether the applications for costs were appropriate given the context of the withdrawn applications and the relevant statutory framework. The court also deliberated on whether section 87(2) of the State Administrative Tribunal Act 2004 (WA) permitted the making of a costs order against a party other than the applicant in a proceeding under the Guardianship and Administration Act 1990 (WA). The court found that the applicants' applications for costs were reasonable in the circumstances, and it was appropriate to make an order for costs under the relevant statutory provisions.

Consequently, the court ordered that costs be paid in accordance with the provisions of the Guardianship and Administration Act 1990 (WA). The court's decision confirmed that such costs orders could indeed be made under the State Administrative Tribunal Act 2004 (WA) against a party other than the applicant in a proceeding. The court's ruling provided clarity on the application of costs provisions in cases involving withdrawn applications for guardianship and administration under enduring powers of attorney.

Orders

Orders of the court

Costs order made

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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