MB and MM

[2017] WASAT 51

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   MB and MM [2017] WASAT 51

MEMBER:   MR J MANSVELD (SENIOR MEMBER)

HEARD:   30 AUGUST 2016

DELIVERED          :   24 MARCH 2017

FILE NO/S:   GAA 333 of 2016

BETWEEN:   MB

First Applicant

IB
Second Applicant

AND

MM
Respondent

Catchwords:

Applications made under Guardianship and Administration Act 1990 (WA) - Leave granted to withdraw applications - Proposed represented person and her attorney applied for costs against applicant under s 87 of State Administrative Tribunal Act 2004 (WA) - Departure from ordinary position of Tribunal that parties bear their own costs not warranted - Applications for costs refused

Legislation:

Guardianship and Administration Act 1990 (WA), s 43(1), s 64(1), s 97(1)(b)(iii), s 97(1)(c)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(4)

Result:

Applications for costs refused

Summary of Tribunal's decision:

MB was an 82 year old woman.  She had two children, a son IB and a daughter MM.

In early 2016, MM made four applications under the Guardianship and Administration Act 1990 (WA) in respect to MB (GA applications).

The GA applications were for the appointment of a guardian, the appointment of an administrator of the estate of MB, revocation of an enduring power of attorney and revocation of an enduring power of guardianship both granted by MB to IB.

Upon receipt of reports from medical practitioners containing opinions of MB's capacity to manage her own personal and financial affairs, MM sought leave to withdraw the GA applications and leave was granted by the Tribunal.

Subsequent to the withdrawal of the GA applications, both MB and IB applied for costs against MM pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA).

The Tribunal was not convinced that the GA applications were conducted in such a manner as to warrant a departure from the ordinary position of the Tribunal that the parties bear their own costs.

The cost applications were therefore refused.

Category:    B

Representation:

Counsel:

First Applicant               :     Mr G Cridland

Second Applicant          :     Mr S Blyth

Respondent:     Mr S Lemonis

Solicitors:

First Applicant               :     GC Legal

Second Applicant          :     Lewis Blyth & Hooper

Respondent:     Lemonis & Tantiprasut Lawyers

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

Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50

PHQ and LPQ [2015] WASAT 5

PJC and RJC [2008] WASAT 224

Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. MB is an 82 year old woman.  She has two children, a son IB and a daughter MM.

2. In early 2016, MM made four applications under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect to MB (GA applications).

3. The GA applications were for the appointment of a guardian, the appointment of an administrator of the estate of MB, revocation of an enduring power of attorney and revocation of an enduring power of guardianship both granted by MB to IB.

4. The GA applications were set for final hearing on 18 April 2016.

5. On 14 April 2016, MM sought leave to withdraw the GA applications.  Leave was granted on 15 April 2016 and the GA applications were withdrawn.

6. Subsequent to the withdrawal of the GA applications, applications for costs against MM were made by MB and IB (costs applications).

7. Submissions were received from the parties in respect to the costs applications and oral submissions made on 30 August 2016.

8. The parties were legally represented.

9. The decision on the costs applications was reserved.

Decision

1. I have decided to refuse the costs applications.  My reasons follow.

Relevant legislation

1. Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states:

   (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 other 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.

   (4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal’s review jurisdiction, the Tribunal is to have regard to ­

   (a)whether the party (in bringing or conducting the proceeding before the decision maker in which the decision under review was made) genuinely attempted to enable and assist the decision maker to make a decision on its merits;

   (b)whether the party (being the decision maker) genuinely attempted to make a decision on its merits.

   (5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.

   (6)The Tribunal may order that the representative of a party, rather than the party, in the representative’s own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.

2. The GA applications come within the original jurisdiction of the Tribunal and therefore s 87(4) of the SAT Act does not apply.

The GA applications

1. In the GA applications, MM stated that there had been a breakdown in the relationship between her and IB.

2. MM stated that she had had very little contact with MB since February 2013, when IB applied for a violence restraining order against her in his own right, and on behalf of MB and her late husband, TB.  Although an interim violence restraining order was granted in February 2013, a final order was ultimately not granted and the application was dismissed in about September 2013.

3. MM alleged that the limited contact she and her family had with MB was as a consequence of the actions of IB.  IB is said to have installed video surveillance in MB's home which had alienated MB from her once close knit family.

4. Included with the GA applications, was correspondence from 2012 from the former General Practitioner (former GP) of TB.  In March and April 2012, the former GP wrote to the Tribunal and the Public Advocate advising of his concerns regarding IB and informing the Public Advocate of his belief that IB was not acting in the best interests of TB and MB.  The former GP wrote to MM on 18 April 2012 expressing concern at the alleged poor judgment of IB in dealing with TB's medications.  He enclosed a copy of the complaint IB had made to the Australian Health Practitioner Regulation Agency and copies of the letters he had sent to the Tribunal and the Public Advocate.

5. Also included with the GA applications was a letter from MM's lawyer to IB dated 23 November 2015.  In that letter, IB was asked to provide, inter alia, the purpose of the transactions made by MB and TB by which they transferred real property (including land which contained MB's home) to him and his son in June and July 2015, for no consideration and apparently without a marksman clause on the transfers of land, given that English was said to be MB's second language (property transactions).

6. The purpose of the letter was framed as an enquiry regarding IB's recent dealings with his parents' assets.  The letter went on to state:

   In that respect, our client [MM] asked us to review certain matters and consider whether it is appropriate to apply to the State Administrative Tribunal for the possible appointment of a guardian or administrator for your mother.

7. In the GA applications, MM stated that she held a belief that MB suffered from depression because IB had allegedly given evidence in Court on 31 August 2015, that two doctors had diagnosed MB with depression for which she had been prescribed medication.

8. There were a number of factors which MM contended grounded the GA applications; MB's depression, the alleged oppressive nature of IB's behaviour exerted over MB, the apparent isolation of MB from family and friends, the recent death of TB (26 September 2015), the property transactions; the allegation that IB may have acted with self­interest as attorney and enduring guardian and the significant amount of funds said to be due to MB from a property development.

The involvement of the Public Advocate

1. The GA applications were referred to the Public Advocate pursuant to s 97(1)(b)(iii) of the GA Act.

2. The Public Advocate filed a report with the Tribunal on 4 April 2016.

3. A Senior Investigator of the Public Advocate (Senior Investigator) interviewed MB with an interpreter on 1 April 2016.

4. Relevantly, MB told the Senior Investigator that she believed she had the capacity to make her own decisions, blamed MM for the conflict with IB, did not want a relationship with MM in the current circumstances and only wanted IB to assist her.

5. MB told the Senior Investigator that her relationship with MM had been affected from about four or five years ago.

6. The Senior Investigator also spoke with MB's General Practitioner Dr G, (GP) and was advised that in the view of the GP, IB was attentive towards his parents.

7. The GP was not aware of any capacity assessments of MB conducted by specialist medical practitioners.  At the time of the discussion with the Senior Investigator, the GP said that in the assessments carried out by him, an independent interpreter had not been used.

8. The Senior Investigator stated that the primary language of MB is Croatian and it seemed she had little understanding of the English language.

9. The Senior Investigator stated that at the time of his report he did not have the full details of MB's estate but assumed her estate to be significant.

10. On the medical reports available to the Public Advocate, and in particular reference to the opinion of the GP, the Senior Investigator submitted that 'it may not be appropriate to deem' MB as incapable pursuant to s 43(1) (guardianship) and s 64(1) (administration) of the GA Act.

11. The Senior Investigator raised the possibility of a specialist assessment of MB's capacity which the Public Advocate would not oppose.

Other written submissions

1. Letters were received by way of the Public Advocate from some of MM's children and some of MB's siblings supporting the position put by MM.

The medical reports available to the Tribunal

1. The following reports were filed with the Tribunal.  In chronological order they are:

14 August 2014 GP 'To whom it may concern'

1. The GP stated that MB had depression and anxiety disorders with resultant symptoms of palpitations, headache, feeling irritable and angry and significant insomnia.

2. The opinion of the GP was that MB's anxiety and depression were due to the stress associated with the behaviours of MM.

5 December 2014 Consultant Geriatrician to GP

1. MB was diagnosed with amongst other things, anxiety/depression and a mild cognitive impairment noting a Rowland Universal Dementia Assessment Scale (RUDAS) score of 22/30 in February 2014, a Mini Mental State Examination (MMSE) score of 20/30 in June 2014 and further noting that MB had schooling to Year 3.

2. The Consultant Geriatrician stated that MB had no concerns about her cognition which was therefore not assessed.

3. MB was accompanied by IB and an interpreter.

15 May 2015 Consultant Geriatrician to GP

1. The Consultant Geriatrician noted that the family conflict was escalating.  He observed that MB had trouble recalling her daughter's (MM) name and that he agreed with IB that this might have been due to the family conflict.

2. MB was accompanied by IB and an interpreter.

17 September 2015 Consultant Geriatrician to GP

1. The Consultant Geriatrician stated that MB's memory loss 'which whilst certainly manifest is not greatly impacting on her life'.  MB continued to have trouble recalling MM.

2. MB was accompanied by IB and an interpreter.

8 February 2016 Doctor's Guide by GP

1. The GP stated that MB had a mild cognitive impairment which was stable but probably slowly progressing.  He assessed MB as being capable of making her personal and financial decisions, however, the death of TB and the ongoing fractured relationship with MM was causing her significant distress.

2. The GP noted that MB speaks a language other than English, that being the Croatian language.

10 March 2016 Doctor's Guide by GP

1. Adding to the Doctor's Guide of 8 February 2016, the GP stated that MB was becoming progressively more anxious and agitated at the thought of attending the Tribunal.

6 April 2016 Doctor's Guide and accompanying letter filed by MB's lawyer on 12 April 2016

1. The GP stated that he saw MB on 4 April 2016 with a Croatian interpreter.

2. MB was given the RUDAS test and scored 21/30.  The GP noted that MB had scored 22/30 in February 2014 when tested by the Consultant Geriatrician.

3. MB told the GP that she understood she had given IB the authority to deal with her financial matters.  She said that her late husband had asked for that to be arranged.

4. MB was able to remember going to her bank and signing money over to IB.  She understood she had given her block of land to IB's son and that he would repay her when he had the funds.

5. MB also remembered that she had granted guardianship to IB.

6. MB told the GP she had never been forced to sign any documents or give money to IB.  She had never felt threatened by IB and said that he was a good man.

The costs application by MB

1. MB submits that her costs should be paid by MM for the following reasons.

   •MM provided no evidence and made no investigations into MB's alleged incapacity;

   •Medical evidence obtained by MB supported her contention that she is capable of making her personal decisions;

   •There was no real need for the orders ought by MM;

   •The Tribunal proceedings initiated by MM caused MB loss, inconvenience and mental anguish;

   •MM made no attempt to resolve the matters raised by the GA applications;

   •Most of the evidence produced by MM related to her conflict with IB;

   •MM withdrew the GA applications only two working days prior to the scheduled hearing on 18 April 2016; and

   •MB would not have incurred costs had it not been for the GA applications MM made upon which MB was forced to protect her rights.

2. Costs sought by MB consist of $9,879.30 of solicitor's fees, $500 for counsel fees and disbursements of $612.00, the latter being the costs of the GP, for the appointment with MB and production of the report of 6 April 2016.

3. Counsel for MB submits that although applications for guardianship and administration orders can at times be exploratory in nature, the GA applications made by MM were speculative given that there were reports of the GP already in existence.

4. Counsel further submits that given the reports of the GP already to hand MB should not have been put to the expense of having to attend the GP on 4 April 2016 and have a final report prepared by him.

The costs application by IB

1. By way of background to the GA applications IB submits as follows:

   •The allegations made by MM in the GA applications and in letters offered to the Public Advocate by estranged family members were either fabricated or were gross misrepresentations of actual events;

   •There has been a significant breakdown in the relationship between MM and MB and during his final years, TB;

   •MM has exhibited malevolent behaviour towards IB, MB and TB escalating in late 2010 or early 2011 after MM demanded land from MB and TB;

   •In about 2011 MB and TB decided not to gift land to MM and from then MM's aggression to MB and TB escalated.  Since that time MM has chosen not to engage with MB;

   •Pressure was also exerted upon MB by a daughter of MM to sell significantly discounted land to herself and her siblings;

   •IB has been involved in a number of judicial matters predating the GA applications as a direct result of MM's accusations against his good character and her behaviour towards MB and TB.  These included the interim violence restraining order referred to in the GA applications and a charge of common assault allegedly committed against MM by IB in August 2015, for which he was found not guilty and awarded costs (MM states that the criminal charge was brought by the WA Police and therefore costs were paid by the Police);

   •In regard to the concerns raised by the former GP of TB, IB states that the former GP was cautioned by the Medical Board of Australia because his professional conduct was considered unsatisfactory.  IB submits that the former GP's documents should not have been included with the GA application;

   •IB is of the view that MM's behaviour will not stop and that there is every chance that she will continue to pursue IB;

   •Whilst the position of MM is that she is concerned for MB's welfare her behaviour is such that it has had a detrimental effect on MBs welfare as well as that of TB before his death;

   •On 15 April 2016, subsequent to MM withdrawing the GA applications, she confronted IB and MB at MB's residence and demanded that MB give her $26,000; and

   •On 9 May 2016, MM again confronted MB at a funeral and accused MB of being amongst other things a 'thief'.

   In respect to the costs application, IB submits as follows:

   •MM caused considerable expense, loss, inconvenience and embarrassment to IB which ought to warrant reasonable compensation in favour of him;

   •Based on each of the GP's three reports, the serious nature and sheer number of allegations made by MM, and the inferences she was inviting the Tribunal to draw from such allegations concerning IB's relationship with MB, have been shown to be completely unfounded;

   •Cost orders have been most commonly made in the Tribunal in circumstances where a party has conducted itself unreasonably or inappropriately, particularly where the conduct gives rise to unnecessary costs being incurred by the other party.  MM's conduct could only be described as unreasonable and inappropriate in making the GA applications which gave rise to unnecessary costs being incurred by IB;

   •MM had a responsibility to consider the substance of and intent behind the GA applications before proceeding;

   •A fundamental element in the task for MM was the need to have a reasonable belief, objectively ground, that MB was no longer capable of managing her affairs.  It was not sufficient for MM to simply say that she was concerned about MB's welfare or to simply assert that she lacked capacity to manage her affairs;

   •MM had no entitlement to seek information about MB's financial affairs either from MB or IB as her attorney.  MB had a right to her privacy.  It was not sufficient to base the GA applications on a refusal of MB to provide a rationale for the property transactions;

   •It cannot be simply inferred that the property transactions were suspect, another possibility is that because of the estrangement with MM, MB no longer wanted MM to benefit from her estate;

   •MM did not produce any cogent evidence, medical or otherwise, as to MBs alleged mental incapacity.  She made no real effort whatsoever to corroborate any of her allegations.  MM seemingly focused on embarrassing IB and denigrating his otherwise good character;

   •Each of the three reports produced by the GP in February 2016, March 2016 and April 2016 restated among other things that MB was capable of managing her own affairs, that MB considered IB to be a good person and the fractured relationship between MM and MB was causing distress to MB;

   •MM could not have had a reasonable and objectively grounded belief that MB was not capable of managing her own affairs.  The GA applications were entirely speculative;

   •It was reasonable for IB to obtain legal representation given the various serious allegations made by MM in the GA applications; and

   •IB hopes that by making the costs application, which he does not make lightly, may serve as a deterrent to MM in the future.

1. The costs claimed by IB to 7 July 2016 are $31,704 plus further costs to prepare for and attend the hearing on 30 August 2016.

The response by MM to the costs applications

1. In the response to the costs applications MM makes further reference to the GA applications as follows:

   •It was sufficient for MM to consider investigating whether MB required protective guardianship and administration orders in light of an inexplicable change in her relationship with MB and the unexplained property transactions;

   •IB did not respond to the enquiry made by MM in November 2015 about the property transactions and MB's general financial affairs and in the knowledge that MB suffered from depression.  This raised a legitimate concern for MM;

   •Certain of MB's grandchildren and siblings raised serious concerns about MB's mental state when responding to an invitation of the Public Advocate for submissions on the GA applications;

   •In the GP's report of 6 April 2016, reference was made to MB's belief that IB's son will eventually pay her for the block transferred to him but this is contrary to what is evidenced on the transfer document;

   •MM submits that MB's solicitor recognised an obvious flaw in the assessment contained in the reports of the GP from 8 February and 10 March 2016 in that MB was not assisted by an independent interpreter and appeared to have been helped by IB.  This was rectified in the assessment and report of the GP of 6 April 2016 and when this was provided to MM she sought leave to withdraw the GA applications on 14 April 2016.

2. MM submits that at all material times she acted in MB's best interests and that she had a reasonable belief, objectively grounded that MB was no longer capable of managing her own affairs.

3. MM submits that she did not deliberately prolong the Tribunal proceedings and was not vexatious or motivated by an improper purpose.  It was not until after the GA applications were made, the matters were investigated by the Public Advocate and the 6 April 2016 report of the GP was received, that it became apparent MB retained her capacity.

4. In response to the submission of IB that the costs application may serve as a deterrent to MM, MM submits that this stated purpose is an abuse of process.

Discussion of the issues

1. The general position of the Tribunal regarding s 87 of the SAT Act is summarised in Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50 at [15]:

   … the discretion conferred by s 82(2) of the SAT Act is informed by the overarching obligation to exercise the discretion judicially and where it is fair and reasonable in all of the circumstances including a consideration of the nature of the jurisdiction exercised by the Tribunal 'but starting from the position that no order for costs will be made'[.]

   (citing Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [9])

2. The GA Act is a protective jurisdiction (see Heenan J in Re TheFull Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44]. The GA Act provides for, amongst other things, the appointment of a guardian and an administrator in situations where a person has impaired cognition and who might therefore be at risk of making decisions contrary to their best interests or be vulnerable to the decision­making of others.

3. The way in which costs are considered by the Tribunal in this protective jurisdiction is summarised in PHQ and LPQ [2015] WASAT 5 at [32] ­ [33] citing PJC and RJC [2008] WASAT 224 at [57] - [59].

   Effectively therefore, in applications brought under the GA Act, there is a need for applicants to proceed cautiously and to be seen to be making the application with a genuine concern held in good faith for the mental health [and] well-being of the proposed represented person.  In circumstances where the applicant is made aware of material in clear and unequivocal terms, which reasonably leads to the conclusion that the application is unlikely to succeed, then the expectation of the Tribunal is that the application ought to be withdrawn, unless contrary, probative medical evidence is able to be produced.

   The Tribunal is likely to consider awarding costs in guardianship and administration applications where it appears that costs were unnecessarily incurred due to the unreasonable actions of the applicant, whether those actions are in pursuing untenable application, unnecessarily prolonging an application, initiating and pursuing an application for an improper purpose and/or generally acting in a way so as to disadvantage the proposed represented person such that they unnecessarily incurred legal and other costs associated with the proceedings.

4. When MM made the GA applications in January 2016, she had, through her lawyers in November 2015, asked IB for an explanation of the property transactions and other financial matters concerning MB.

5. IB had not responded to the request for information.

6. MM had been estranged from MB for some years and it was not practically possible for MM to deal with MB directly.

7. MM was aware that the property transactions were not market based transactions.  She had the earlier opinion of the former GP that he was concerned about whether IB had acted in the best interests of MB and TB.  There were also other family members voicing concerns about the wellbeing of MB.

8. MM was also aware, and it is not in dispute, that MB had suffered from depression and anxiety.

9. MM and IB had been in significant conflict for a long time and did not trust each other.

10. It is correct to say, as IB submits, that neither he nor MB was in the first instance obliged to answer MM's enquiry and this is what occurred.

11. If, therefore, MM wanted to pursue the concerns she says she had for MB, there were a number of options open to her in the jurisdiction of the GA Act which included requesting the Public Advocate to investigate whether MB was in need of a guardian or administrator (s 97(1)(c) of the GA Act) or filing applications with the Tribunal.

12. MM chose the latter.

13. It seems to me that faced with this combination of factors, it was not unreasonable for MM to make the GA applications when she did even though they were somewhat exploratory in nature.  Such applications are not uncommon in the protective jurisdiction of the GA Act particularly in situations where families are estranged and information is difficult to obtain.

14. It was open to MM in my view to seek consideration of how MB's depression and anxiety might be impacting on her decision­making abilities and to be concerned at the potential vulnerability of MB's mental state in the context of managing an estate that on its face had complex elements including an interest in a large property development.

15. Once the applications were made they progressed in the Tribunal in the usual way and in about the standard time frame.

16. The medical evidence subsequently filed with the Tribunal did show that MB had suffered from depression and anxiety and further that she had been diagnosed with a mild cognitive impairment (with attendant memory problems) from as early as December 2014.

17. The consistent opinion of the GP in the three reports before the Tribunal, was that MB was capable of making her personal and financial decisions.  However, there were two matters that in my view might have raised the possibility of further enquiry to a person reading those reports and aware of the intense family conflict.

18. Firstly, the absence of an independent interpreter for MB, as had been available for the assessments undertaken by the Consultant Geriatrician in 2014 and 2015, for the assessments contained in the GP reports of 8 February 2016 and 10 March 2016.

19. This was only remedied in the GP report of 6 April 2016.

20. Secondly, the question of whether the opinion of the GP should be tested in a hearing when considering MB's impairment against her ability to manage and make decisions concerning her actual estate.

21. As it transpired, when MM was given the GP report of 6 April 2016, she soon thereafter, sought leave from the Tribunal to withdraw the GA applications.

22. When I consider all of the above, I am not convinced that the GA applications were conducted in such a manner as to warrant a departure for the ordinary position of the Tribunal that the parties bear their own costs.

23. The cost applications are therefore refused.

Orders

1.The applications for costs made under s 87(2) of the State Administrative Tribunal Act 2004 (WA) are refused.

I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, SENIOR MEMBER