| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LA and JCA [2012] WASAT 249 MEMBER : MS F CHILD (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 SEPTEMBER 2012 PUBLISHED : 20 NOVEMBER 2012 FILE NO/S : GAA 2851 of 2012 BETWEEN : LA CJ
Applicants
AND
JCA
Represented Person
Catchwords: Guardianship and administration Applications for appointment of guardian and administrator Application for legal costs of parties to be paid out of estate of represented person Factors to be considered in determining costs application Whether rule that parties bear their own costs should be set aside Represented person ordered to pay a contribution to parties' legal costs
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Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 16(1), s 16(4), s 72(3)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 78, s 87 Result: Contribution to costs orders
Summary of Tribunal's decision: The nieces of the represented person applied for the payment of their legal costs relative to the proceedings before the Tribunal to be paid from her estate. Proceedings under the Guardianship and Administration Act 1990 (WA) in relation to their aunt were initiated by applications made by a hospital social worker seeking the appointment of a guardian and an administrator. The applications before the Tribunal were made against a background of family conflict and allegations of financial abuse of the represented person. The final orders made by the Tribunal appointed the choices of the represented person as her administrator and guardian and these orders were not opposed by the nieces. The nieces participated in the hearing by telephone as they lived in another State. A fuller picture of the family conflict was provided to the Tribunal by their participation. Although initially opposed to the appointments made, they withdrew their opposition to the choices made by the represented person of the guardian and administrator finally appointed. In this sense, the Tribunal determined they had acted in the best interests of the represented person, which is required for the costs order sought. The Tribunal determined that, although, generally, parties to proceedings before the Tribunal should expect to pay their own costs, a contribution to the niece's legal costs for representation at the hearing could be ordered to be paid from the estate of the represented person.
Category: B
Representation: Counsel:
Applicants : Tan
Represented Person : Self-represented
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Solicitors:
Applicants : Robertson Hayles Lawyers
Represented Person : N/A
Case(s) referred to in decision(s):
A and ES [2005] WASAT 279
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
J & P Metals Pty Ltd and Shire of Dardenup [2006] WASAT 282 (S)
LC and JS [2007] WASAT 127
Pearce & Anor and Germain [2007] WASAT 291
Re JCA; Ex Parte RD [2012] WASAT 123
Re ML; Ex Parte WW [2009] WASAT 5
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REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 This is an application by LA and CJ, the nieces of JCA (represented person), which arises out of proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) reported as Re JCA; Ex Parte RD [2012] WASAT 123, determined by the Tribunal in March 2012. 2 The applications for the appointment of a guardian and an administrator for the represented person were made by a hospital social worker while the represented person was an inpatient in hospital. Although the applications were made against a background of family conflict, there was no real challenge, other than by the represented person herself, to the findings of incapacity to manage her own personal and financial affairs. The question of the represented person's capacity to make an enduring power of attorney (EPA) and, if capable thereby, avoid the restriction on substantial gifts of money made to family members inherent in an administrator order by operation of s 72(3) of the GA Act, was also in issue. The Tribunal determined that the represented person was not capable of managing her own affairs or of making an EPA and, as she was vulnerable, was in need of orders. The Tribunal appointed the represented person's financial advisor as the administrator of her estate and a relative of her choice as her limited guardian to make personal decisions for her. 3 By letter dated 12 June 2012, LA and CJ sought payment of their legal costs arising from the proceedings before the Tribunal. It is argued for the applicants for costs that they properly incurred legal fees because they were responding to concerns by social workers at the hospital regarding the represented person. It is also argued that LA together with her late mother were given an EPA by the represented person in 2007 and, in light of the purported execution of a new EPA by the represented person sometime in 2010, she had an interest in the outcome of the application. Also it is argued that LA together with her late mother were appointed executors of the will of the represented person. Finally, it is argued that both LA and CJ reside outside Western Australia and therefore appointed legal representatives to represent them in order to participate in the hearing of the applications. 4 It is argued that the applicants act in the best interests of the represented person by giving her moral support, and that they supported the appointment of a guardian and an administrator. It is submitted (Page 5)
that they participated in the process properly and sensitively, taking into account the best interests of the represented person and her need for a guardian and an administrator. It is submitted that s 16(4) of the GA Act allows the Tribunal to order costs, as the costs claimed were properly incurred by them in protecting the represented person's interests in light of concerns expressed by hospital staff. 5 Invoices are submitted that relate to work done up to and including the hearing on 2 March 2012 and a further invoice for work done following the hearing until the orders were made, including examining the terms of the order and ascertaining the basis of the application by the administrator for 'ongoing payments to various parties'. 6 The applicants seek to recover their costs totalling $11,225.50. 7 It is submitted on behalf of the applicants that the charges may be higher than otherwise, due to the applicants living outside Western Australia and that there were two separate clients. A further invoice relates to work done in January 2012 following the first directions hearing on 6 January 2012at which the applicants for costs attended by telephone but were not represented. 8 By letter dated 14 September 2012, the representative of the applicants for costs wrote to the Tribunal seeking clarification of the order made on 31 August 2012 ordering a proportion of their costs be paid from the estate of the represented person. The letter essentially takes issue with the amount allowed. This letter is being treated as a request for written reasons pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). It is noted that a decision made pursuant to s 16(4) of the GA Act is not a 'determination' within the meaning of the GA Act: see s 3 of the GA Act. It is, nonetheless, a final decision of the Tribunal.
Relevant legislation 9 Section 87 of the SAT Act 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. … 10 The approach to costs in the Tribunal is wellestablished. For example, in Pearce & Anor and Germain [2007] WASAT 291, (Page 6)
it was confirmed that the Tribunal is, at its heart, a no costs jurisdiction and that parties should expect to pay their own costs. 11 In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282, the Tribunal determined that costs applications are to be considered in the context of the obligation of the Tribunal to act speedily and with as little formality as is practical, and to minimise costs to the parties consistent with the obligations and objectives of the Tribunal as set out in s 9 of the SAT Act. 12 Section 16(4) of the GA Act provides: The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person. 13 The approach to costs in respect of GA Act proceedings was considered in Re ML; Ex Parte WW [2009] WASAT 5, where it was confirmed that s 87 of the SAT Act applies to all matters before the Tribunal, and there is nothing in s 16(4) of the GA Act which is inconsistent with it. The Tribunal found that the intention must be that s 87 of the SAT Act is read together with s 16(4) of the GA Act when dealing with an application under that section. This must be the case because s 16(1) of the GA Act, which provided for parties bearing their own costs, was repealed when the amendments to the GA Act were made on the passage of the legislation to transfer the jurisdiction to the Tribunal: see State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). 14 That LA and CJ, the applicants for costs, were entitled to legal representation before the Tribunal is not in issue; the question is, having chosen to be represented, why should the represented person pay their costs? 15 In A and ES [2005] WASAT 279 (A and ES), the Tribunal held that applicants and participants in hearings generally act in such a way as to assist the Tribunal and with the best interests of the proposed represented person as their focus. (Page 7)
16 It is not challenged that LA and CJ are concerned for the best interests of the represented person and, by their participation in the hearings before the Tribunal and in submissions made, attempted to advance those interests as they saw them. 17 The entitlement to costs under s 16(4) of the GA Act has been treated by the Tribunal more narrowly than simply a recognition that a party has acted in the best interests of the represented person, because this is 'not a difficult threshold to cross': see LC and JS [2007] WASAT 127. 18 In the case of the represented person, the applicant bringing the application for the appointment of a guardian and an administrator for the represented person was the hospital social worker, against a background of conflict between the branches of the family and allegations of financial abuse on both sides. 19 It is accepted that the applicants supported the applications for the appointment of a guardian and an administrator and the making of orders, eventually withdrawing their opposition to the choice of guardian and administrator made by the represented person. Counsel for the applicants assisted in providing advice to them in relation to this point. The participation through counsel by the applicants did assist the Tribunal; he was present in the hearing room and it was possible for him to question the proposed administrator directly regarding his appreciation of that role. Following this, the applicants' opposition to the proposed appointee's appointment as administrator of the estate was withdrawn, thereby reducing the hearing time. 20 The submission that the applicants had interests in the outcome of the proceedings in respect of their roles as former donees of the EPA or as executors of the will of the represented person is not relevant to the consideration of their application under s 16(4) of the GA Act. 21 The ability of the represented person to meet the legal costs is also not relevant: see A and ES. 22 In this case, the quantum of costs sought is excessive. Although the social worker's applications were brought against a background of family conflict, this is not unusual. 23 The matters to be determined by the Tribunal: whether the represented person was a person for whom orders could and should be made were not in issue between the parties, but were strongly opposed by the represented person who was herself legally represented. (Page 8)
The determinations of who should be appointed in the roles of guardian and administrator conformed with the wishes of the represented person and, having regard to all the material before the Tribunal, were not controversial. 24 The approach to costs orders and the obligation under s 9 of the SAT Act was considered by his Honour Judge Chaney, as he then was, in J & P Metals Pty Ltd and Shire of Dardenup [2006] WASAT 282 (S) at [38]: The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. The Tribunal strives to ensure that its procedures are proportionate to the nature of the matters in issue. On occasions, matters before the Tribunal are difficult and complex, sometimes involving lengthy hearings. This is not such a matter. In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceedings in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order. 25 Part of the costs claimed is not relative to the proceedings before the Tribunal, being costs claimed for work done after the applications had been determined, and so is outside the scope of s 16(4) of the GA Act. 26 However, as noted above, there was assistance in the role played in the hearing by the representative of the applicants. In all the circumstances, contribution from the represented person's estate to the costs of representation at the hearing on 3 March 2012 is warranted.
Order 27 The Tribunal orders as follows: (Page 9)
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