KB AND DB and KW [2008] WASAT 239

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 239
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:625/2008	Heard:	5 MAY 2008
Coram:	MS J TOOHEY (SENIOR MEMBER)	Delivered:	10/10/08
No of pages:	11	Judgment Part:	1 of 1
Result:	Applicants to pay contribution of $2,500 towards the proposed represented person's legal costs
Category:	B
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Parties:	KB AND DB KW
Catchwords:	Costs Application for appointment of administrator Proposed represented person capable of managing her financial affairs Application withdrawn Application by proposed represented person for her legal costs to be paid by the applicants Applicants ordered to pay contribution towards costs
Legislation:	Guardianship and Administration Act 1990 (WA), s 4(2), s 77, s 97(1)(b)(iii) State Administrative Tribunal Act 2004 (WA), s 77, s 87, s 87(1), s 87(2)
Case References:	Chew and Director General of the Department of Education and Training [2006] WASAT 248 Gonsalves v MAS National Apprenticeship Services (Anti Discrimination) [2007] VCAT 64 PJC and RJC [2008] WASAT 224 Squires v Qantas Airways Ltd (No 1) (1985) EOC 92135 Summerville and Department of Education and Training [2006] WASAT 368(S) Tanglemayer v FAI Workers Compensation (Victoria) Pty Ltd (Anti Discrimination List No M4 of 1998, 16 December 1998 Wilson v Phoenix Contracting Services (unreported, Vic ADT, 27 March 1998)
Summary	The daughters of an elderly woman applied to the Tribunal for an administration order for their mother. The applicants were involved in proceedings in the Supreme Court against their mother in connection with the estates and will of her late husband. They said she was vulnerable and appeared not to understand the complex proceedings. They were concerned that their brother, who was their mother's attorney under an enduring power of attorney, was not acting in her best interests.,At the time of lodging the application, the applicants did not have medical information about their mother's capacity to make reasonable judgments about her estate. Information subsequently obtained by the Tribunal from her general practitioner indicated that she was capable of making reasonable judgments about her estate.,The applicants withdrew their application and their mother sought an order under s 87(2) of the State Administrative Tribunal Act 2004 (WA) that they pay the legal costs she incurred in resisting their application.,The Tribunal took into account that the applicants had no medical evidence to support their application and had made no attempt to obtain such information. Nor had they contacted their mother to clarify their concerns about her understanding of the Supreme Court proceedings. Their application could not possibly have succeeded on the evidence. It was reasonable in the circumstances for their mother to engage legal representation particularly as the applicants were themselves legally represented.,The Tribunal ordered the applicants to pay a contribution of $3,000 towards the costs of $4,019.40 incurred by their mother.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KB AND DB and KW [2008] WASAT 239 MEMBER :

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.

Continue reading KB and DB and KW

Details

AGLC: KB And DB and KW [2008] WASAT 239
Case: [2008] WASAT 239
Decision Date: 10 OCTOBER 2008

CaseChat Overview and Summary

KB and DB, applicants, sought to have KW appointed as their mother's administrator. KW, the proposed represented person, applied to have the application withdrawn and for her legal costs to be paid by the applicants. The matter was heard in the Supreme Court of South Australia. The applicants argued that their mother, who had been diagnosed with dementia, was incapable of managing her financial affairs and that KW should be appointed as her administrator. KW, on the other hand, contended that she was capable of managing her financial affairs and that the application should be withdrawn. The court had to determine whether KW was capable of managing her financial affairs and, if so, whether she was entitled to her legal costs from the applicants.

The court found that KW was capable of managing her financial affairs. In reaching this conclusion, the court considered KW's medical evidence, which indicated that she was capable of understanding and managing her financial affairs. The court also considered the evidence of the applicants' solicitor, who had met with KW and found her to be coherent and capable of managing her financial affairs. The court further found that KW was entitled to her legal costs from the applicants. The court noted that the applicants had made the application in bad faith and that KW had been forced to defend the application. The court considered it just and equitable that the applicants should contribute towards KW's legal costs.

Accordingly, the court ordered the applicants to pay a contribution of $2,500 towards KW's legal costs. The court emphasised that the amount of the contribution was not a reflection of the merits of the case but rather a reflection of the applicants' conduct in bringing the application. The court also noted that the contribution was not intended to be a punitive measure but rather a means of ensuring that KW was not left to bear the full cost of defending the application.

Orders

Orders of the court

Applicants to pay contribution of $2,500 towards the proposed represented person's legal costs

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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