JW - [2024] WASAT 38 | CaseChat AU

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.…

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: JW [2024] WASAT 38
Case: [2024] WASAT 38
Decision Date: 30 APRIL 2024

CaseChat Overview and Summary

The case involved JW, who applied for the production of accounts and records from the Office of the Public Trustee, who held a guardianship and administration order over JW. The application was dismissed by the Supreme Court of New South Wales. JW argued that the previous similar applications by the Public Trustee were vexatious and that the application should be dismissed on that basis. The Public Trustee sought costs for the application, arguing that it was an abuse of process.

The court had to decide whether JW's application was vexatious and, if so, whether it was appropriate to award costs. The court also had to determine whether costs should be awarded to the Public Trustee, regardless of whether the application was vexatious. The court considered the previous similar applications and the circumstances surrounding them to determine whether JW's application was vexatious. The court also considered whether the application was an abuse of process.

The court found that JW's application was not vexatious, as it was not made in bad faith or for an improper purpose. However, the court found that the application was an abuse of process, as it was not made in good faith. The court also found that the Public Trustee was entitled to costs, regardless of whether the application was vexatious. The court ordered that JW pay the Public Trustee's costs of the application.

The court ordered that JW pay the Public Trustee's costs of the application, which included costs on an indemnity basis. The court also ordered that JW pay the Public Trustee's costs of a previous application, which was also an abuse of process. The court found that the Public Trustee was entitled to costs on an indemnity basis for both applications, as they were made in bad faith and for an improper purpose.

Orders