KB and DB and KW
[2008] WASAT 239
•10 OCTOBER 2008
KB AND DB and KW [2008] WASAT 239
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 239 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:625/2008 | 5 MAY 2008 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) | 10/10/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Applicants to pay contribution of $2,500 towards the proposed represented person's legal costs | ||
| B | |||
| PDF Version |
| 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for appointment of administrator Proposed represented person capable of managing her financial affairs Application withdrawn Application by proposed represented person for her legal costs to be paid by the applicants Applicants ordered to pay contribution towards costs |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 : MS J TOOHEY (SENIOR MEMBER) HEARD : 5 MAY 2008 DELIVERED : 10 OCTOBER 2008 FILE NO/S : GAA 625 of 2008 BETWEEN : KB AND DB
- Applicants
AND
KW
Represented Person
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)
(Page 2)
Result:
Applicants to pay contribution of $2,500 towards the proposed represented person's legal costs
Category: B
Representation:
Counsel:
Applicants : Ms K Everett
Represented Person : Damian Cooper
Solicitors:
Applicants : WL & KJ Everett
Represented Person : Cooper Legal
Case(s) referred to in decision(s):
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)
(Page 3)
Summary of Tribunal's decision
1 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.
2 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.
3 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.
4 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.
5 The Tribunal ordered the applicants to pay a contribution of $3,000 towards the costs of $4,019.40 incurred by their mother.
Background
6 On 19 March 2008, KB and DB through their solicitors, WL & KJ Everett, lodged an application for the appointment of an administrator for their mother, KW.
7 A directions hearing was held on 5 May 2008 at which KW was represented by Cooper Legal. Counsel for KW argued the application should be dismissed for want of evidence that KW lacked the capacity to manage her financial affairs. The Tribunal adjourned the proceedings for the Public Advocate to investigate and report to the Tribunal pursuant to s 97(1)(b)(iii) of the Guardianship and Administration Act 1990 (GA Act).
(Page 4)
8 The Public Advocate subsequently reported that, having made contact with KW and her doctors, with the applicants and other family members and with service providers, there was in her view insufficient evidence to set aside the presumption of capacity in s 4(2) of the GA Act.
9 The parties subsequently advised the Tribunal that they had agreed that the application would be withdrawn, that KW would make written submissions as to costs and that the applicants would provide a written response to her submissions.
10 The Tribunal gave the applicants leave to withdraw and ordered parties to file submissions as to costs.
The application for an administration order
11 In their application for an administration order, the applicants stated that they were currently involved in proceedings in the Supreme Court against KW in connection with the will and estate of her late husband and they were concerned that she appeared increasingly to lack the capacity to look after her own financial interests or to understand the complex legal issues raised by the Supreme Court proceedings.
12 The applicants stated that they suspected that their brother, whom KW had appointed her attorney under an enduring power of attorney, had not acted in her best interests; alternatively, if their brother was not acting pursuant to his power as attorney, KW's lack of capacity to manage her financial affairs was demonstrated by a substantial increase in debt over previous months and her vulnerability to their brother and his wife. They did not provide details.
13 The applicants stated that they were not aware of any current diagnosis of a disability but it was 'likely that [KW] may have dementia and possibly residual brain damage from a stroke'.
14 The application asked the Tribunal to list the matter for a directions hearing with a view to an order that KW attend on a geriatric physician for examination and testing to determine the degree of impairment of her faculties. The applicants stated that, depending on the outcome, they contemplated seeking orders to remove their brother as attorney and appoint an administrator.
(Page 5)
15 The application was lodged without any supporting information, in particular as to KW's capacity to manage her financial affairs. The applicants stated that they anticipated KW would object to the application and that her general practitioner might be precluded by patient confidentiality from providing information about her. The application identified two doctors and noted that reports were 'Not available' but there is no indication that the applicant had in fact tried to obtain a report from either doctor.
16 The Tribunal wrote to the doctors nominated in the application form and asked them to complete a standard form Doctor's Guide about KW. It listed the application for a directions hearing on 5 May 2008.
Report from KW's general practitioner
17 On 7 April 2008, Dr P returned the completed Doctor's Guide. He indicated he had known KW since 1964 and was her regular general practitioner. He commented that her dress and behaviour was always 'appropriate'; she lived some distance from town but drove herself to town for shopping each week.
18 In response to standard questions on the form, Dr P ticked boxes indicating that KW was capable of making reasonable decisions about her personal health care, her living situation and her financial affairs. He added that she 'does not require the attention of the Tribunal' and 'she is normal and oriented as to time and space'.
Directions hearing
19 At the directions hearing on 5 May 2008, counsel for KW argued the application should be dismissed for want of any evidence that KW lacked the capacity to manage her financial affairs. Counsel for the applicants submitted that Dr P's report was limited and the matter should not be dismissed without the Tribunal obtaining further information.
20 The Tribunal does not consider it has the power to compel a person to submit to a medical examination and so did not make the order sought by the applicants for their mother to submit to a medical examination. However, it decided it should adjourn the proceedings and referred the matter to the Public Advocate for investigation pursuant to s 97(1)(b)(iii) of the GA Act as to whether any evidence could be found to support an administration order, what KW's views and wishes were, and anything else the Public Advocate considered relevant.
(Page 6)
Report from Dr K
21 KW subsequently attended on Dr K who is a geriatrician who assessed her 'financial capacity'. In a detailed report to a doctor at the same practice as Dr P, Dr K concluded that it was almost impossible to draw any definite conclusions from his limited assessment; there was some evidence of some mild memory dysfunction and in some respects KW's knowledge of her financial affairs appeared somewhat limited. He concluded that he did not have enough information to refute the 'basic assumption of financial capacity' but a more complete assessment would have to be undertaken for a more certain opinion.
22 The doctor sent Dr K's report to the Public Advocate with the comment that he had never conducted any mental health or competency assessment of KW but there appeared 'no cause to doubt her competence'.
The Public Advocate's investigation
23 The Public Advocate provided the Tribunal with a detailed report of her investigation. She stated she had contacted KW, family members including the applicants, the legal representatives, each of the doctors and local service providers. It is not necessary to detail all her observations other than her conclusion that the available evidence was insufficient to set aside the presumption that KW was capable of managing her financial affairs.
24 In accordance with an order made at the directions hearing, the Tribunal sent a copy of the Public Advocate's report to the parties and asked for any submissions within 14 days.
Application withdrawn
25 The application was listed for final hearing on 30 June 2008 but on that date parties advised that they had agreed that the application would be withdrawn; KW would make written submissions as to costs; and the applicants would provide a written response to her submissions.
26 The Tribunal gave the applicants leave to withdraw and ordered parties to file submissions as to costs.
Submissions on behalf of KW
27 KW seeks an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (SAT Act) that the applicants pay the legal costs she incurred in resisting their application. The costs are $4,019.40.
(Page 7)
28 It is submitted for KW that it is open to the Tribunal to infer, from the application itself, its context and the resulting investigation of the Public Advocate, that the applicants acted unreasonably or vexatiously and have caused embarrassment and inconvenience to KW as a result of which she has incurred substantial, unnecessary costs.
29 In particular, it is submitted that:
(i) the application had, on its face, no merit, no grounds and no supporting evidence; at the time it was made, there was no evidence of incapacity and no attempt to investigate capacity or contact KW directly;
(ii) the application sought an order, being to compel KW to submit to examination by a geriatric specialist, that was not within the Tribunal's power;
(iii) there was no mention in the application of any contact by the applicants with KW, even though one lives in the same area and the other is often in the same area; the applicants had not seen their mother for 12 months except at mediation conferences in the Supreme Court;
(iv) the Public Advocate conducted a thorough investigation and was unable to elicit any evidence of lack of capacity; KW voluntarily cooperated with the Public Advocate's investigation and provided responses consistent with normal capacity.
(v) none of the health professionals contacted by the Public Advocate could provide any indication of incapacity;
(vi) the application was, at best, a fishing expedition and, at worst, a bad faith attempt to delay Supreme Court proceedings by the applicants who, while not plaintiffs in those proceedings, stood to gain if the plaintiff (who is the husband of one of them) succeeded.
Submissions in response
30 In response the applicants say that parties should bear their own costs. In particular, they say:
(i) the question is under what circumstances it is appropriate for a party to seek legal advice or be represented in proceedings under the GA Act;
(ii) the Tribunal process is accessible to parties; the matter was not complex and it was not necessary for KW to seek legal advice or be represented, especially given that she was found to have capacity;
(Page 8)
- (iii) the application was made in response to a comment by a judicial officer in the Supreme Court proceedings; it was necessary for the applicants to bring the application to ensure their mother was capable of participating in, and giving instructions in, the Supreme Court proceedings; in light of the medical information obtained, they believed they had discharged their obligations and would not take the Tribunal proceedings further;
(iv) the evidence tending to establish their mother's diminished capacity was their own observations over time including following a motor vehicle accident;
(v) the application was made in their mother's best interests and the outcome would have no bearing on the substantive proceedings in the Supreme Court;
(vi) although the medical evidence did not establish that KW needs a next friend in the Supreme Court proceedings, this might change and a further application might be necessary;
(vii) KW refused to undergo a full assessment by the geriatrician and did not attend the Tribunal hearing, thereby depriving the Tribunal of the opportunity to make a first hand assessment of the merits of the application.
Relevant legislation
31 Section 87 of the SAT Act relevantly provides:
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or material on the application of the party under section 35.
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
Reasons for decision
32 Section 87(1) of the SAT Act provides that parties to proceedings before the Tribunal bear their own costs. However, the Tribunal has a broad discretion to award costs in appropriate cases: s 87(2).
(Page 9)
33 Costs orders under s 87(2) were considered at length by the President, Justice Barker, in Summerville and Department of Education and Training [2006] WASAT 368(S). His Honour considered that the statement by the Tribunal in Chew and Director General of the Department of Education and Training[2006] WASAT 248 was a useful guide. In that case, the Tribunal said at [85]:
We take the view that in proceedings under the SAT Act, the Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
34 His Honour observed (at [27] and [28]) that these remarks had to be understood in the context of s 87(2) which does not enumerate the circumstances in which costs might be ordered and it would not be appropriate for the Tribunal 'to attempt finally to delineate the particular circumstances in which the discretion to award costs will be exercised'.
35 His Honour went on to outline some of the many decisions of courts and tribunals based on cost regimes similar to in s 87(1) and s 87(2) in which costs have been awarded including:
(i) where a party pursued a claim which was clearly untenable or which no reasonable person would have believed could be successful: see Tanglemayer v FAI Workers Compensation (Victoria) Pty Ltd (Anti Discrimination List No M4 of 1998, 16 December 1998.
(ii) where the complainant did not have a bona fide belief in the genuineness of his own claim, it was so lacking in any real foundation that he should never have brought it: see Wilson v Phoenix Contracting Services (unreported, Vic ADT, 27 March 1998) .
(iii) where the conduct of a party was unreasonable or embarrassing and not based on any genuine belief in the nature of the case: see, for example, Squires v Qantas Airways Ltd (No 1) (1985) EOC 92135; and
(iv) where an unsuccessful party subjected the successful party to 'rigorous and sometimes embarrassing crossexamination': see, for example, Gonsalves v MAS
- National Apprenticeship Services (Anti Discrimination) [2007] VCAT 64 at [15].
36 The protective nature of the GA Act means that applications will sometimes be made where there is little or no evidence of incapacity available at the time. However, as the Tribunal observed in PJC and RJC [2008] WASAT 224 at [58], an applicant needs to have 'a reasonable belief, objectively grounded, that the person for whom protection is sought is no longer capable of managing his or her own affairs'.
37 In this case, the applicants brought their application without any supporting medical evidence, without any apparent attempt to obtain that evidence and believing that their mother would object to the application.
38 It is submitted for KW, and the applicants have not disputed, that they made no attempt to contact her directly to clarify their concerns about her capacity to manage her affairs. Their contact appears to have been in the course of the Supreme Court proceedings. It is submitted for KW, and the applicants have not disputed, that, while not plaintiffs in those proceedings, they stood to gain if the plaintiff succeeded.
39 The applicants say that they brought the application in response to comments by a judicial officer in the Supreme Court proceedings but they have not said what those comments were or why they thought they should act on them. They say their concerns were based on their observations of their mother during the Supreme Court proceedings but have not said what they observed.
40 The application could not have succeeded at the time it was made. Inquiries by the Tribunal and the Public Advocate failed to elicit any information on the basis of which an administrator might have been appointed for KW.
41 The applicants say that the question for the Tribunal now is under what circumstances is it appropriate for a party to seek legal advice or be represented in proceedings under the GA Act. They maintain that the Tribunal process is accessible, the matter was not complex and it was not necessary for KW to seek legal advice or be represented, especially given that she was found to have capacity.
42 I think this frames the question too narrowly but, in any event, it overlooks the fact that the applicants were themselves legally represented. The appointment of an administrator is a serious step involving a declaration that the represented person is unable, by reason of mental disability, to make reasonable judgments about her estate. The
(Page 11)
- effect of a declaration is that the represented person becomes incapable of dealing with his or her estate: s 77 of the GA Act. It is not unreasonable for a person to engage legal representation to resist an application by persons who are themselves legally represented.
43 KW's legal costs in relation to the tribunal proceedings were $4,019.40. In all the circumstances, I consider it fair and reasonable that the applicants pay a contribution of $3,000 towards those costs.
Orders
1. The applicants are to pay to the proposed represented person the sum of $3,000 by pay of contribution to the legal expenses she incurred in the proceedings.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J TOOHEY, SENIOR MEMBER
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