JW
[2024] WASAT 38
•30 APRIL 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JW [2024] WASAT 38
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT JUDGE F VERNON, DEPUTY PRESIDENT
MS N EAGLING, MEMBER
HEARD: 8 MARCH 2024
DELIVERED : 8 MARCH 2024
PUBLISHED : 30 APRIL 2024
FILE NO/S: GAA 5712 of 2023
AW
Applicant
AND
BW
Respondent
Catchwords:
Costs – Guardianship and administration – Application for production of accounts and records – Application dismissed – Previous similar applications – Whether application was vexatious – Whether costs should otherwise be awarded
Legislation:
Guardianship and Administration Act 1990 (WA), s 16(4), s 17A, s 109(1)(a)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(3), s 87(4), s 88(1), s 88(2)
Result:
The application for costs is dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N De Kerloy |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | MDK Barristers and Solicitors |
Case(s) referred to in decision(s):
EW [2010] WASAT 91
L and V [2017] WASAT 39
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered on 8 March 2024 and have been edited from the transcript to correct grammatical errors and/or infelicity of expression).
Introduction
On 19 February 2023, we heard and dismissed proceeding GAA 5712 of 2023, being an application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) by AW. AW's brother, BW, was the respondent in that matter and was represented at that hearing by a solicitor.
By letter dated 21 February 2024, BW applied through this solicitor for an order that AW pay him the cost of $2,000 towards the costs of his solicitor. We have determined to dismiss that application; that is, no order for costs will be made. These are our reasons.
Background
AW, BW and another brother, TW, were all sons of JW and RW. Both JW and RW have, unfortunately, died in the recent past. In 2013, both RW and JW executed enduring powers of attorney (EPAs) whereby they appointed BW as their attorney. There has not been any dispute raised at any stage that those EPAs were validly made. However, there have been several applications made to this Tribunal, pursuant to s 109(1)(a) of the GA Act, seeking orders requiring that BW produce records and accounts kept by him as the donee of the power under those EPAs.
In each of 2016 and 2020, TW brought an application requiring BW to produce records and accounts kept by him as the donee under RW's EPA. Those applications were withdrawn. On 29 March 2022, TW lodged a further application. However, in that case he sought orders that BW produce records and accounts kept by him concerning transactions under JW's EPA. That application went to hearing, where it was dismissed. The current proceeding involved, as has been said, an application by AW.
By an application made on 18 June 2023, AW sought orders requiring that BW produce records and accounts kept by him as JW's attorney. That application was dismissed by a single member of the Tribunal on 19 October 2023. In her oral reasons dismissing that application, the single member said as follows:
During the hearing, [AW] repeatedly stated to the Tribunal that he was not acting out of malice. However, it was apparent during the hearing that there is a significant degree of animosity between [BW] on the one hand and [TW] and [AW] on the other. It is also clear that [TW] and [AW] believe that they are entitled to access all information and documents concerning [JW's] finances. The Tribunal wishes to make it very clear that they are not so entitled without there being a sufficient basis for making orders under [s 109(1)(a) of the Guardianship and Administration Act1990 (WA)].
If [TW] and [AW] continue to apply to the Tribunal for orders under s 109 without a sufficient basis for doing so, then it is possible that the Tribunal may seek to recover its costs from them.[1]
[1] ts 8, 19 October 2023.
The single member in that quote appears to refer to s 88(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which provides the Tribunal with the power to 'order that all or any of the costs of a proceeding be paid by a party'. By s 88(1), the 'costs of a proceeding' is defined to mean 'costs of, or incidental to, a proceeding of the Tribunal other than costs of a party'.
To the best of our knowledge, no order has ever been made under that provision, although the single member's decision, or her reasons more particularly, is not the first time that such an order has been threatened. By an application dated 19 December 2023, AW applied for review of the decision of the single member dismissing his application pursuant to s 17A of the GA Act. On 19 February 2024, we dismissed that application.
In doing so, we held that in order for the application to succeed, we needed to be satisfied that, firstly, AW, as the applicant, had a 'proper interest' in the matter and, secondly, that there must be a proper basis for us to, in effect, trigger the supervisory jurisdiction of the Tribunal and get involved in what is, at its core, a private arrangement entered into by JW and BW in 2013 at a time when JW had full capacity to do so: EW [2010] WASAT 91 at [20] – [24], [94] – [101].
Ultimately, we were satisfied that AW had a proper interest in the matter. However, in reaching that conclusion, we indicated that we held some considerable concern that the purpose for which he brought the application may have been vexatious. Principally, our concern in that regard arose because the only basis for his insistence that he had a proper interest, in addition to being JW's son, was that he expected to be a beneficiary under her Will. However, the only matters he relied upon as a basis for the Tribunal to exercise its jurisdiction concerned sums of money at the trivial end of the range.
There were two matters in dispute. First, AW was concerned that BW had sold JW's car, a 1999 Toyota Camry, to a person known to him for $2,000. However, at the hearing before the single member, evidence of an online valuation was produced which put the value of such a model as between $1,300 and $2,900. Further, at the same hearing, AW said it would 'be outrageous for me to say that it was worth $2,900'. At the hearing before us, AW suggested that the price paid was suspect because BW knew the purchaser but, even if that was so, at best, any undersale could only be by a couple of hundred dollars.
The other matter that appeared to be in dispute concerned the disposal of household goods in circumstances where BW's evidence was that he had been unable to sell much and that the values involved were small, in the order of dozens of dollars to, perhaps, a little more than $100 in each case. In those circumstances, we were not satisfied that his actions in bringing the application were designed to protect his interest in, or any claim to, a portion of JW's estate. However, we did not go so far as to find that AW was acting vexatiously.
In large part, that was due to a concession made by BW's solicitor to the effect that AW had a 'proper interest' at the time of bringing the initial application. Given the function of the Tribunal on an application under s 17A of the GA Act is to carry out a review de novo, in our view it seemed fair and reasonable to conclude that he had a proper interest in the current proceedings.
As we have said, BW attended the hearing before us on 19 February 2024 with a legal representative. That is the first time solicitors have been involved in any of the hearings previously described. As previously indicated, by letter dated 21 February 2024, BW's solicitor now seeks costs on his client's behalf, in the fixed sum of $2,000.
The basis for the application for costs:
1)is that the application by AW was without merit;
2)the single member had previously put AW on notice in her oral reasons for decision on 19 October, which we have detailed previously;
3)the application is one of a series of applications made since 2016, throughout which no adverse finding has been made against BW; and
4)BW engaged his legal representation in light of JW's death on 4 January 2024 which resulted in a grieving process, together with preparations for the funeral and other associated matters, which meant that he felt the need of assistance.
The starting point in any consideration for an application for costs in the Tribunal is s 87(1) of the SAT Act which states that unless otherwise specified, 'parties bear their own costs in a proceeding of the Tribunal.' We also note that s 16(4) of the GA Act provides, in addition to that general power, that the Tribunal may order that a party's costs may be paid out of a represented person's estate in certain circumstances.
We are of the view that that section does not have application in these circumstances, and we refer there to the previous decision of the Tribunal in L and V [2017] WASAT 39 (L and V) at [42] - [66].
The second point to make is that proceedings such as these are almost invariably carried out without the benefit of legal representation, as was the case in all previous matters regarding these three brothers.
Thirdly, as the solicitor's letter indicates, while several applications have been made by TW and AW, none of them have succeeded in circumstances where, in each of those cases, BW was self‑represented.
Fourthly, while the personal circumstances of BW that we have referred to previously provide a reasonable basis on which legal representation might properly be sought and obtained, that, in our view, is a different question to whether the costs of such representation ought to be borne by another party.
Fifthly, as a general proposition, in light of s 87(1) of the SAT Act, as well as s 87(3) and s 87(4), the Tribunal, in its review jurisdiction and, in particular, in its guardianship and administration jurisdiction, will not exercise the discretion to order costs in the absence of behaviour, and particularly the conduct of proceedings, that is unreasonable or otherwise puts a party to expense that ought not to have been incurred.
To that end we note the decision in L and V (above) where the Tribunal refused an application for costs in regard to an application under s 109(1)(a) of the GA Act on the basis that the Tribunal was 'not convinced' that the application 'was conducted in the Tribunal in such a manner as to warrant a departure from the ordinary position that the parties bear their own costs'.[2]
[2] L and V at [87].
In our view, an application that is brought vexatiously would fall into the category of proceedings conducted in a manner that might warrant a departure from the ordinary position. As we have said, we fell short of making such a finding.
AW and his brother, TW, have now had it explained to at least one of them more than once that they do not have a right to access the documents and records kept by BW in relation to their parents' estates. They have previously been put on notice of the risks of a costs order and these reasons ought to be seen as a second warning. However, we are of the view that no costs should be ordered in these proceedings for the reasons set out above.
That is, to summarise, in the absence of a finding that the application was made vexatiously, or that AW had otherwise behaved unreasonably so as to put BW to unnecessary expense, no costs order should be made. Put another way, BW was not put to any expense as a result of the application or AW's unreasonable behaviour but, rather, due to his own personal circumstances. Accordingly, no order for costs will be made, although AW and TW ought not to assume the same result will ensue if there is another time.
Finally, we note that we determine to dismiss BW's application for costs without the need to hear from AW about it. We understand that upon receiving notice of the application for costs being listed for delivery of oral reasons, he communicated to the Tribunal his concern that a decision had been made without him being invited to put his side of the story. Had we been minded to make an adverse costs order against him, we would certainly have provided him with an opportunity to put his case.
So much follows from the principles of natural justice which the Tribunal is required to apply. However, given our view that we should dismiss the application, we took the view that it was not necessary to hear from him.
Orders
The Tribunal orders:
1.The application for costs is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PN
Associate to Deputy President Judge Jackson
30 APRIL 2024