KSLQ (Costs) - [2007] TASGAB 15

GUARDIANSHIP AND ADMINISTRATION BOARD

HOBART

MR KSLQ, on the application of MR SKT

Neutral Citation: KSLQ (Costs) [2007] TASGAB 15

REASONS FOR DECISION ON COSTS APPLICATION

Malcolm Schyvens   (Chair)
  Lindi Wall   (Board Member)
  Elizabeth Love   (Board Member)

20 December 2007

Application for costs following review of enduring power of attorney and enduring guardianships – effect of inquisitorial process on normal rules of ‘winners and losers’

Guardianship and Administration Act 1995 (Tas), s 80

Latoudis v Casey (1990) 170 CLR 534,
Hardman v Ward [2004] TASSC 74,
Oshlack v Richmond River Council (1998) 193 CLR 72

Background

Mr SKT, “the Applicant”, lodged a request for an emergency order pursuant to section 65 of the Guardianship and Administration Act 1995 (“the Act”) dated 23 May 2007 and as a result of such application the President of the Board on 25 May 2007 issued an order that registered Power of Attorney no. PAXXXXX given by Mr KSLQ to Ms SC be suspended for a period of 28 days.

Mr SKT made application to the Board by application dated 24 May 2007 for the Board to determine the need for ongoing guardianship and administration arrangements for Mr KSLQ to determine whether to revoke or otherwise declare invalid any and all powers of attorney and appointments of enduring guardianship in respect of Mr KSLQ.

A division of the Board conducted a hearing into the matter on 19 July 2007. The participants in that hearing were as follows:

Mr KSLQ – proposed Represented Person
Mr SKT – Applicant
Ms SC – partner of proposed Represented Person
Mrs TQ – relative
Mr QQ – relative
Ms HQ – friend
Mr HB (by phone) – Donee of Power of Attorney
Max McMullen (previous) – Solicitor for proposed Represented Person
Mr BK – relative of proposed Represented Person
Dr Paul Sheehan – Psychiatrist
Kevin Clarke – Public Trustee
Lisa Warner – Office of the Public Guardian
Brendan McManus – Solicitor Public Trustee
Beth Sharman – Solicitor for proposed Represented Person
Dr Trevor Hatten - Psychologist

At the commencement of the hearing on 19 July 2007, the Board indicated that the process of an application is determined by a hearing before the Division[1], and in accordance with the usual procedure of the Board, the Division had determined that proceedings would be inquisitorial and informal. By that determination, the Board altered the usual expectations from other forums of there being a ‘winner’ and a ‘loser’ in the proceedings as to the matter of costs.

[1] Schedule 2 Clause 2(3) – Section 11(3) Guardianship and Administration Act 1995

Upon conclusion of the hearing, the Board made the following declarations and orders:
(a)that the Enduring Power of Attorney registered no. PAXXXX dated 30 May 2005 made by Mr KSLQ appointing Mr HB as his attorney be revoked in all the circumstances in that it was determined not in Mr KSLQ’s bests interests for such Power of Attorney to be continued;
(b)that the Enduring Power of Attorney registered no. PAXXXX dated 19…

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 KSLQ (Costs)

Details

AGLC: KSLQ (Costs) [2007] TASGAB 15
Case: [2007] TASGAB 15
Decision Date: 20 December 2007

CaseChat Overview and Summary

This case involved an application for costs following a review of enduring power of attorney and enduring guardianships in the context of the Guardianship and Administration Board in Hobart. The case was brought by Mr SKT, the Applicant, against Mr KSLQ, the proposed represented person, who was represented by Mr HB, Donee of Power of Attorney. The dispute involved the revocation of certain powers of attorney and enduring guardianships, as well as the appointment of the Public Trustee as Administrator of the Estate of Mr KSLQ.

The legal issues before the court were whether the Board should make an order for costs under section 80 of the Guardianship and Administration Act 1995 and, if so, to whom such costs should be awarded. The court considered the inquisitorial nature of the Board's process and the principles of natural justice, as well as the fact that the Applicant had achieved the outcome sought at the hearing.

In reaching its decision, the court considered the nature of the Board's process and the inquisitorial role it played in the hearing. The court noted that the Board does not operate under the traditional adversarial model and that its primary consideration is to act in the best interests of the represented person. The court also noted that the Applicant had achieved the outcome sought at the hearing, but that the Board's inquisitorial role and its focus on the best interests of the represented person meant that it was unjust to award costs to the Applicant. The court concluded that the circumstances did not justify an award of costs in favour of any party or witness or against any party or witness, and that the witnesses and parties who were represented should bear their own costs.

This decision highlights the unique nature of the Guardianship and Administration Board and the importance of considering the best interests of the represented person when making decisions about costs. The court's decision not to award costs to the Applicant, despite the fact that the Applicant achieved the outcome sought at the hearing, demonstrates the importance of considering the inquisitorial role of the Board and the principles of natural justice in the context of this particular jurisdiction.

Orders