MD

[2022] WASAT 45

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   MD [2022] WASAT 45

MEMBER:   DR E MARILLIER, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   26 MAY 2022

FILE NO/S:   GAA 4089 of 2021

MD

Proposed Represented Person

JP

Applicant

AP

Interested Party

Catchwords:

Guardianship and administration - Application for administration order - Factors to be considered in determining costs application - Whether presumption that parties bear their own costs should be set aside - Whether failure to notify Tribunal of death of proposed represented person was vexatious or unreasonable

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(4), s 16(4), s 40
State Administrative Tribunal Act 2004 (WA), s 3, s 4, s 9(a), s 9(b), s 9(c), s 47(1), s 87(1), s 87(2), s 87(3), s 88(1), s 88(2)
Vexatious Proceedings Restriction Act 2002 (WA), s 3

Result:

Costs application dismissed
Parties to bear their own costs

Category:    B

Representation:

Counsel:

Proposed Represented Person	:	N/A
Applicant	:	Mr Hanming Jiang
Interested Party	:	In Person

Solicitors:

Proposed Represented Person	:	N/A
Applicant	:	Jiang Law
Interested Party	:	N/A

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

Blaskiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56

CD [2020] WASAT 41

GD [2022] WASAT 33

Medical Board of Western Australia and Kyi [2009] WASAT 22

PT [2020] WASAT 147

RK [2020] WASAT 53 (S)

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

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. This decision relates to an application for costs arising from a directions hearing held in regard to an application under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking appointment of an administrator for MD.  For the reasons which follow, I have dismissed that application and determined that parties should bear their own costs.

Background

1. The initial application was lodged on 21 September 2021 by JP (applicant), who is one of MD's great-nephews.  It expressed concern regarding whether AP (MD's nephew and JP's uncle) was managing MD's financial affairs properly, and uncertainty regarding whether or not there was an enduring power of attorney (EPA).

2. MD was 89 years old at the time, and medical evidence revealed she had advanced Alzheimer's disease.  She was non-verbal, bed­bound, and residing in a high-needs residential care facility.

3. An EPA appointing AP had been executed in 2012, with the assistance of a solicitor and an Italian translator, at a time when there were no concerns regarding MD's capacity.

4. AP's mother had died just prior to the application being made.  He sought, and I granted, a re-listing of the hearing from the initial date of 23 November 2021 to 31 January 2022, given the timing so close to his bereavement.[1]  I was satisfied that MD's interests would not be compromised.

   [1] Orders, 26 October 2021.

5. Unfortunately, the family has been embroiled for many years in legal proceedings in multiple jurisdictions (including both the Tribunal and the Supreme Court).  There is a lack of trust between the parties.  AP was reluctant to provide documents as he suspected they were sought for use in unrelated proceedings.[2]

   [2] ts 7, 24 November 2021.

6. A directions hearing was held on 24 November 2021 to assist parties to understand the narrow focus of this matter, being confined to material that would assist me in determining the matter in the best interests of MD,[3] and understanding whether her needs could be met by means less restrictive of her freedom of decision and action than an administration order.[4]  I explained that documents filed with the Tribunal were generally not permitted to be utilised in unrelated proceedings.[5] AP's consideration of whether to seek dismissal of the proceeding under s 47(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) was put on hold pending him seeking further legal advice.[6]

   [3] GA Act, s 4(2).

   [4] GA Act, s 4(4).

   [5] CD [2020] WASAT 41 at [45].

   [6] ts 20, 24 November 2021.

7. I determined that, in the interests of a fair hearing, notwithstanding AP's ongoing objection, the EPA should be a document to which parties had access, along with an email from the residential care facility, relating to how the current arrangements were working for MD.[7]

   [7] ts 16, 24 November 2021.

8. On 31 January 2022, a final hearing was held.  The issue of incapacity was determined.  However, it became evident (and was accepted by all parties, including AP who was legally represented on that occasion),[8] that further documents would need to be filed before the Tribunal would be in a position to determine whether the EPA stood as a satisfactory less restrictive alternative to an administration order for managing the financial affairs of MD.

   [8] ts 26, 31 January 2022.

9. The matter was adjourned to a final hearing, with orders made regarding dates for filing of submissions and evidence that would permit parties to consider the material and respond in time for the Tribunal to provide a hearing book including all relevant material.  Due to administrative error, the initial date chosen was unavailable, and the hearing was rescheduled from 11 April 2022 to 2 May 2022.  AP subsequently sought an extension of time to file documents for his convenience given the new hearing date and I issued orders preserving the same time intervals for filing of documents.[9]

   [9] Order, 18 February 2022.

10. Subsequently, the applicant (via his legal representative), sought access to all correspondence between AP and the Tribunal.  AP sought a further vacation and re-listing of the matter from 2 May 2022 and to summons various parties to produce other documents. 

11. To deal with the issues arising in correspondence which the parties were sending to the Tribunal in open hearing, I scheduled a directions hearing for 31 March 2022, specifically to deal on the one hand with the concern of the applicant regarding the revised submission dates for documents and his request to access all correspondence between AP and the Tribunal, and on the other hand, with AP's requests for a further vacation and re-listing and the summonses.

12. A directions hearing was held for one hour on 31 March 2022, during which the applicant's legal representative was satisfied in regard to my reasons for granting the variations to filing dates sought by AP, and that access to all correspondence was not required, so long as all relevant material was provided in the hearing book.

13. On turning to the matters raised by AP, it was unclear despite approximately 40 minutes of exploration, whether he still sought that the final hearing listed for 2 May 2022 be vacated and re-listed.  I made orders confirming the previous programming orders.  I also found that the summonses he sought were not required to inform the Tribunal about the issues to be determined and declined to issue them.

14. Subsequent to the hearing, AP notified the Tribunal by email that MD had passed away, and that he had intended to notify the Tribunal during the hearing but felt constrained from doing so due to the way the hearing was conducted.

15. The Tribunal sought clarification from the residential care facility, which advised that MD had passed away on 25 March 2022, some six days prior to the directions hearing. There was no communication from AP to the Tribunal regarding this fact prior to the email of 31 March 2022 referred to above. The Tribunal notified parties and the application under s 40 was closed.

The application for costs

1. AP requested by email on 5 April 2022 to make an appearance and approach me on the matter of costs.  In a letter dated 7 April 2022 the applicant sought the costs of his appearance (fixed at $495, representing 1.5 hours for preparation and appearance) at the directions hearing on 31 March 2022.

2. I made orders on 8 April 2022 that by 12 May 2022 parties were to file any written submissions they wished me to consider in relation to costs, and that the decision would be made on the papers.

The Tribunal's power to make costs orders in respect of applications under the GA Act

1. Section 16(4) of the GA Act states:

   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.

2. In this matter, the final merits of the case were not determined, due to the passing of MD. As such, a determination under s 16(4) of the GA Act is not in my contemplation, as I am not in a position to ascertain whether any party has acted in the best interests of MD to the extent that any costs should be met out of her estate.

The Tribunal's power to make costs orders in respect of applications under the SAT Act

1. I note the principle in s 87(1) of the SAT Act, that '[u]nless 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'. In RK [2020] WASAT 53 (S) (RK) the Full Tribunal found that 'the starting point in respect of applications for costs in relation to GA Act proceedings is that the parties to those proceedings should bear their own costs'.[10]

   [10] RK at [22].

2. However, as set out in GD [2022] WASAT 33 (GD),[11] the Tribunal has discretion to award costs in any proceeding (except as otherwise provided in an enabling Act).[12]  This includes the power to order a party to pay the costs of another party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding.[13]

   [11] GD at [58].

   [12] SAT Act, s 87(2).

   [13] SAT Act, s 87(3).

3. Further, as Member McGivern observes in GD:[14]

   … the Tribunal is required to exercise its discretion having regard to all of the circumstances of the particular case, and ultimately on the basis of whether it is fair and reasonable for one party to bear the costs of another.[15]  Some considerations that guide that ultimate assessment include whether:

   a)a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process. This includes where proceedings should not have been maintained against a party because it is clearly untenable, and no reasonable person would have believed they could be successful; and

   b)costs have been incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings (where the conduct of the party was unreasonable and unfairly caused the increased costs).[16]

   (Emphasis added)

   [14] GD at [59].

   [15] RK at [23] - [24], referring to Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) .

   [16] PT [2020] WASAT 147 at [25], referring to Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73] - [74].

4. Turning to whether any party should be found liable to pay the costs of another in this case, I note the following.

5. The applicant submitted that AP ought to have known that MD had passed away, and ought to have advised the Tribunal to allow the directions hearing to be vacated and to save parties costs. He submitted that if AP knew of her death, his behaviour 'was calculated to inconvenience the applicant and put the applicant to further cost. Simply put, his behaviour was vexatious'. Costs were sought under s 87(3) and s 88(2) of the SAT Act.

6. 'Vexatiously' is defined in the SAT Act under s 3 and s 4 by reference to the definition in the Vexatious Proceedings Restriction Act 2002 (WA) under s 3:

   vexatious proceedings means proceedings -

   (a)which are an abuse of the process of a court or a tribunal; or

   (b)instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose; or

   (c)instituted or pursued without reasonable ground; or

   (d)conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

7. The definitions at [26] (a) - (c) above relate to institution and pursuit of the proceedings, and will not therefore apply to AP, as he did not institute the proceeding, and in fact argued it should be dismissed.  I will therefore consider the application on the basis that definition (d) is the relevant consideration and assess whether AP's actions were vexatious in failing to notify the Tribunal of MD's death prior to or during the directions hearing.  That is, did this amount to conducting himself during the proceeding in a way that was intended to cause delay, detriment, harassment or annoyance to the applicant.

8. Section 88(2) of the SAT Act provides that the Tribunal may order that all or any of the costs of a proceeding be paid by a party. However, s 88(1) defines 'costs of a proceeding' for this section as those 'other than the costs of a party', so the costs sought by the applicant (which are his legal costs for the directions hearing of 31 March 2022) would not be included under this section.

9. The Tribunal does, however, have the power to order payment of costs by a party under s 87(3) of the SAT Act 'to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding'. However, as noted in Blaskiewicz, discussing Questdale: 'the legal rationale is not to punish the person against whom the order is made'.[17]

   [17] Blaskiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56, at [61] discussing Questdale.

10. AP sought access to transcripts of proceedings and an extension of time to provide submissions.  In the context of the five weeks between the order and the date for submissions, and the modest and confined nature of the costs application by the applicant, I did not grant an extension.  I approved access to the transcripts and supported their provision at a concessional rate, although I understand that AP did not in fact pay the deposit or receive the transcripts during that time.

11. AP sought that the matter be determined at a hearing rather than ex­parte, arguing that he was disadvantaged in having to make written submissions. He argued that although the decision respected s 9(b) of the SAT Act (to act as speedily and with as little formality and technicality as practicable, and minimise the costs to parties), it did not comply with s 9(a) (to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case), or s 9(c) (to make appropriate use of the knowledge and experience of Tribunal members).

12. I was satisfied that I was in a position to fairly consider the costs application, on the basis of the transcripts, documents filed on the matter and the records of communication between parties and the Tribunal, and this would allow me to determine this confined issue fairly and according to the merits of the case.  I considered that five weeks was sufficient time to allow even a self-represented party to make any written submissions he or she wished.  AP had demonstrated during the course of the matter that he was willing and able to utilise email to express his views.  Given that the substantive matter was no longer active after MD's death, I saw no benefit and significant risk of further unnecessary expense in listing the costs issue for hearing.

13. AP submitted on 28 April 2022 that 'it was unacceptable and totally incompetent for the officer from OPA to appear and even for SAT to proceed without checking on my aunts passing'.  Further, on 10 May 2022, AP indicated he was having ongoing difficulties obtaining transcripts, and that the deadline be extended:

    … as it goes to the heart of what I was trying so hard to say to you from the very start of the hearing.  You may recall I tried many many times.  All was denied until the very end when all that time was wasted and if so, it was due to you not anyone else.  In addition, why was the Applicant not aware and most importantly why was SAT not aware and even more important why the OPA not check prior to going to any hearing.  Absolute failings and disaster all round.

14. The tenor of these submissions indicates to me that AP was not aware that in the absence of notice from him, no other party would know of MD's passing.  This may explain why he did not notify the Tribunal to allow us to close the matter and vacate the directions hearing.  It also appears that he felt unable to provide that information early in the directions hearing due to my attempts to keep to the planned order of matters in the interests of efficiency.  As noted above, some 40 minutes were spent attempting to ascertain whether AP still sought vacation and re­listing of the next scheduled hearing.

15. It appears AP did not understand the mechanisms which meant that if he had notified the Tribunal prior to 31 March 2022 of MD's death the matter would have been closed, with no need to file further documents and no need for any further hearings.  As such I find that his failure to do so arises from that lack of understanding rather than a calculated or vexatious decision to cause inconvenience and cost to the applicant.  Given that the outcomes which he had sought from the beginning would have been achieved without further difficulty or expense by a simple communication, it is the only explanation for his behaviour, which otherwise does appear to be unreasonable.

16. For that reason, I do not find that departing from the starting position of s 87(1) of the SAT Act that parties bear their own costs is justified under s 87(3), as it is not reasonable AP should compensate others for that lack of understanding which also resulted in causing himself cost and inconvenience.

Order

The Tribunal orders:

1.The application for costs is dismissed.

2.Each party to bear its own costs

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR E Marillier, MEMBER

26 MAY 2022