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

MB is an 82 year old woman. She has two children, a son IB and a daughter MM.
In early 2016, MM made four applications under the Guardianship and Administration Act 1990 (WA) (GA Act) 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…

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 MB and MM

Details

AGLC: MB and MM [2017] WASAT 51
Case: [2017] WASAT 51
Decision Date: 24 MARCH 2017

CaseChat Overview and Summary

The applicants, MB and MM, sought leave to withdraw their applications made under the Guardianship and Administration Act 1990 (WA) in relation to MB's welfare and affairs. The application was subsequently opposed by the proposed represented person and her attorney. In response, the applicants applied for costs against the opposers under section 87 of the State Administrative Tribunal Act 2004 (WA). The court had to decide whether the departure from the ordinary position of the Tribunal, where parties bear their own costs, was warranted in this case.

The court noted that ordinarily, parties bear their own costs. However, the court recognised that the case involved complex issues of law and fact concerning the welfare of a vulnerable individual. The applicants argued that the opposers' opposition was not genuinely justified, and the court needed to determine whether the opposers had a reasonable prospect of success. The court found that the opposers had a reasonable prospect of success, but the applicants' decision to withdraw their applications was a significant factor in the case.

The court held that the departure from the ordinary position of the Tribunal that parties bear their own costs was not warranted in this case. The court considered that the applicants had acted reasonably in withdrawing their applications, and the opposers' opposition was justified. The court found that the applicants' decision to withdraw their applications was a significant factor in the case, and the opposers' opposition was not frivolous or vexatious. Therefore, the applications for costs were refused.

The court's decision highlights the importance of considering the unique circumstances of each case when deciding whether to depart from the ordinary position that parties bear their own costs. The court found that the applicants' decision to withdraw their applications was a significant factor in the case, and the opposers' opposition was not frivolous or vexatious. The court's decision in this case provides guidance to parties involved in similar cases, and it reinforces the need for careful consideration of the circumstances of each case when deciding whether to depart from the ordinary position of the Tribunal.

Orders