M [2008] WASAT 262 (S)

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 262 (S)
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1454/2008	Heard:	23 MARCH 2009
Coram:	MS J TOOHEY (SENIOR MEMBER) MR J MANSVELD (MEMBER) MS H LESLIE (SENIOR SESSIONAL MEMBER)	Delivered:	6/11/08
Supplementary Delivered:	2/04/09
No of pages:	15	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	G E
Catchwords:	Application for administration Public Trustee appointed plenary administrator for mother Conflict between applicant and brother Application opposed by mother and brother Application for costs under s 87(2) State Administrative Tribunal Act 2004 (WA) and s 16(4) Guardianship and Administration Act 1990 (WA) Factors to be considered in determining costs applications Whether rule that parties bear own costs should be set aside Whether applicant's costs should be paid out of his mother's estate Tribunal not satisfied orders should be made Application for costs dismissed
Legislation:	Guardianship and Administration Act 1990 (WA), s 16(1), s 16(4), s 65, s 97(1)(b)(iii) State Administration Tribunal Act 2004 (WA), s 9, s 32, s 87, s 87(1), s 87(2), s 90 State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 427
Case References:	Chew and Director General of The Department of Education and Training [2006] WASAT 248 LC and JS [2007] WASAT 127 M [2008] WASAT 262 MO and JB [2008] WASAT 228 Re IO; Ex Parte VK [2008] WASAT 8 Summerville and Department of Education & Training [2006] WASAT 368 (S) Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341
Summary	G had lodged applications which led to the appointment of an administrator for his mother, M. G was legally represented throughout the proceedings as were M and G's brother, E, both of whom opposed the applications.,At the conclusion of the proceedings, G sought an order under s 87(2) of the State Administrative Tribunal Act 2004 (WA) that E pay his legal costs. Further, or in the alternative, he sought an order under s 16(4) of the Guardianship and Administration Act 1990 (WA) that his costs be paid out of M's assets. ,The amount of costs sought was $105,426.88.,The Tribunal was not satisfied there was reason to depart from the rule in s 87(1) of the State Administrative Tribunal Act 2004 (WA) that parties to proceedings before the Tribunal bear their own costs. In particular, it did not accept that the issues for determination concerning M were more complex than most matters in the guardianship and administration jurisdiction such that legal representation was necessary in order to bring and conduct the proceedings in a timely and coherent manner. The proceedings became unnecessarily adversarial and protracted mainly because of the brothers' business dealings and the conflict between them, rather than the complexity of their mother's financial affairs. ,The Tribunal was not satisfied that G's legal costs should be paid out of his mother's estate. It was questionable how much he had acted in her interests, as opposed to his…

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.

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Details

AGLC: M [2008] WASAT 262 (S)
Case: [2008] WASAT 262 (S)
Decision Date: 7 NOVEMBER 2008

CaseChat Overview and Summary

In the matter of M, the applicant sought the appointment of a plenary administrator for their mother's estate. The application was opposed by both the mother and the applicant's brother. The case was heard and determined by the State Administrative Tribunal of Western Australia. The central issue before the Tribunal was whether the applicant's costs, incurred in the application for administration, should be paid from the mother's estate. The Tribunal was required to consider the factors relevant to determining costs applications under the State Administrative Tribunal Act 2004 (WA) and the Guardianship and Administration Act 1990 (WA). Additionally, the Tribunal needed to decide whether the general principle that each party bears their own costs should be set aside in this instance.

The Tribunal examined the statutory provisions and the relevant case law to determine the appropriate approach to the costs application. It considered the interests of justice and the specific circumstances of the case, including the conflict between the applicant and his brother. The Tribunal found that while the applicant had acted in good faith, the opposition from the mother and brother, and the outcome of the application, did not warrant departing from the usual rule that parties bear their own costs. The Tribunal concluded that the application for costs should be dismissed as it was not satisfied that the orders should be made in favour of the applicant.

Consequently, the Tribunal dismissed the application for costs. The applicant's request for the Public Trustee to be appointed as the plenary administrator for the mother's estate was not the subject of the costs application and was not addressed in the decision. The Tribunal's decision focused solely on the costs incurred by the applicant in relation to the application for administration. The outcome of the application for administration itself remains separate and is not reflected in the orders made by the Tribunal.

Orders

Orders of the court

Application 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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