MD - [2022] WASAT 45 | CaseChat AU

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

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

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).
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.
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.
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.
Unfortunately, the family has been embroiled for many years in legal proceedings in multiple jurisdictions (including…

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: MD [2022] WASAT 45
Case: [2022] WASAT 45
Decision Date

CaseChat Overview and Summary

The decision in MD [2022] WASAT 45 concerns an application for costs arising from a directions hearing held in regard to an application under section 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking appointment of an administrator for MD. The initial application was lodged on 21 September 2021 by JP, one of MD's great-nephews, who 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). MD was 89 years old at the time, and medical evidence revealed she had advanced Alzheimer's disease. 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.

The court was required to decide whether the presumption that parties bear their own costs should be set aside and whether the failure to notify the Tribunal of MD's death was vexatious or unreasonable. The court noted that the Tribunal's power to make costs orders in respect of applications under the GA Act is limited as the final merits of the case were not determined due to MD's passing. The court also noted that the Tribunal has discretion to award costs in any proceeding under section 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and must exercise this discretion having regard to all of the circumstances of the particular case. The court considered whether AP's failure to notify the Tribunal of MD's death prior to or during the directions hearing amounted to conducting himself during the proceeding in a way that was intended to cause delay, detriment, harassment or annoyance to the applicant.

The court found that AP's failure to notify the Tribunal of MD's death arose from a lack of understanding rather than a calculated or vexatious decision to cause inconvenience and cost to the applicant. The court did not find that departing from the starting position of section 87(1) of the SAT Act that parties bear their own costs was justified under section 87(3) as it was not reasonable AP should compensate others for that lack of understanding which also resulted in causing himself cost and inconvenience. The court dismissed the application for costs and ordered that each party bear its own costs.

The final orders of the court were that the application for costs is dismissed and each party to bear its own costs. The court certified that the preceding paragraphs comprise the reasons for decision of the State Administrative Tribunal.

Orders