LC and JS

Case [2007] WASAT 127



LC and JS [2007] WASAT 127
Last Update :14/12/2011
Jurisdiction:STATE ADMINISTRATIVE TRIBUNALCitation No:[2007] WASAT 127
Published:
Act:GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:GAA:2171/2006Heard:DETERMINED ON THE PAPERS
Coram:MR J MANSVELD (MEMBER)Delivered:25/05/2007
No Pages:16Judgment Part:1 of 1
Result:The application for an award of costs is dismissed
Category:B
Parties & CatchwordsOrders
Summary


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LC and JS [2007] WASAT 127 MEMBER : MR J MANSVELD (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 25 MAY 2007 FILE NO/S : GAA 2171 of 2006 BETWEEN : LC
                  Applicant

                  AND

                  JS
                  Represented Person

Catchwords:

Guardianship and administration - Application for legal costs from the represented person’s estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Principle that parties bear their own costs - That principle may be overturned when legal assistance is necessary for the Tribunal to make a determination in the best interests of the represented person - Party’s ability to pay is not a relevant consideration - Deterrence from making future applications not a relevant consideration - Good intentions insufficient reason to make an award of costs - Balance of convenience is not a reason to make an award of costs

(Page 2)

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(4), s 97(1)(b), s 127, Sch 1 Pt B cl 13(2)(a)
Guardianship and Administration Act 1995(Qld), s 82, s 127
State Administrative Tribunal Act 2004 (WA), s 5, s 9, s 32(1), s 32(2), s 32(4), s 35, s 87

Result:

The application for an award of costs is dismissed

Category: B

Representation:

Counsel:


    Applicant : Mr Gebarski
    Represented Person : Self-represented

Solicitors:

    Applicant : WA Legal Pty Ltd
    Represented Person : Self-represented



Case(s) referred to in decision(s):

A and ES [2005] WASAT 279
GD and AD [2005] WASAT 203
Re ELF [2004] QGAAT 57
Re ERF [2005] QGAAT 62


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The sister of an elderly woman who had suffered a stroke made an application for her legal costs to be paid from the woman's estate.

2 The sister had applied to the Tribunal for an administrator to be appointed for the woman, who because of the stroke, was now unable to make reasonable judgments about her estate. An application for administration and guardianship was already before the Tribunal.

3 The applications made to the Tribunal expressed a concern that the woman's estate was at risk and that she had executed an enduring power of attorney when she was incapable of doing so. As it emerged, there was no evidence or information presented to support an assertion that there had been misappropriation of the woman's estate.

4 In all the circumstances of the case, it could not be said that the legal assistance obtained by…

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LC and JS [2007] WASAT 127
Case
[2007] WASAT 127
Decision Date

CaseChat Overview and Summary

In LC and JS, the matter before the Court involved an application for legal costs from the estate of a represented person under section 16(4) of the Guardianship and Administration Act 1990 (WA). The parties were LC, the appointed legal guardian and administrator of JS, the represented person, and JS's estate. The dispute centred on whether LC was entitled to recover the legal costs incurred in defending an application made by a third party to the Court.

The legal issues before the Court were whether the principle that parties bear their own costs could be overturned in this context and, if so, under what circumstances. The Court considered whether the necessity of legal assistance for the Tribunal to make a determination in the best interests of the represented person was sufficient to allow an award of costs. Additionally, the Court assessed whether the represented person's ability to pay, deterrence from making future applications, good intentions, or the balance of convenience were relevant considerations in making such an award.

The Court found that the principle that parties bear their own costs could be overturned when legal assistance is necessary for the Tribunal to make a determination in the best interests of the represented person. The Court emphasised that the represented person's ability to pay, deterrence from making future applications, good intentions, and the balance of convenience were not relevant considerations in determining whether to award costs. Ultimately, the Court dismissed the application, finding that the legal assistance provided was not necessary for the Tribunal to make a determination in the best interests of the represented person.

Orders

Orders of the court

The application is dismissed

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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