MGT and NED And Anor

[2008] WASAT 280

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   MGT and NED AND ANOR [2008] WASAT 280

MEMBER:   MS M JORDAN (SENIOR SESSIONAL MEMBER)

HEARD:   ON THE PAPERS

DELIVERED          :   26 NOVEMBER 2008

FILE NO/S:   GAA 2144 of 2007

BETWEEN:   MGT

Applicant

AND

NED AND ANOR
Respondents

Catchwords:

Respondents application for costs to be paid by applicant pursuant to s 87 of State Administrative Tribunal Act 2004 (WA) and an alternative application by applicant that the respondents costs be paid by estate pursuant to s 16 of Guardianship and Administration Act 1990 (WA) - No reason to vary from usual situation that each party bear own costs.

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(1), s 16(4), s 109(1)(a), s 109(1)(b)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), s 427
State Administrative Tribunal Act 2004 (WA), s 87, s 87(2)

Result:

Both costs applications are dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr G Wells, later withdrew

Respondents                 :     Mr N Billington

Solicitors:

Applicant:     Gavin Wells, Mobile Lawyer

Respondents                 :     Cahill Billington

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

Chew and Director General of the Department of Education and Training [2006] WASAT 248

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. An application was made by MGT on 30 October 2007 for an administrator to be appointed for his mother DMT and orders requiring submitting of accounts pursuant to an Enduring Power of Attorney and an audit of accounts.

2. At the time of the application, there was a purported Enduring Power of Attorney in existence, which later was conceded not to be valid; it was replaced by a further Enduring Power of Attorney which was later revoked as it did not specify that the donees were to act jointly and severally and finally, a third Enduring Power of Attorney was executed on 12 March 2008.

3. The application was accompanied by a report from the general practitioner who had been treating DMT for seven years and stated that she had an impairment of her cognitive function and was incapable of making reasonable decisions with regard to her personal health care, her living situation and her financial affairs but further commented that her capacity had not been fully assessed formally.

4. Later, a further report by a specialist geriatrician, filed by the respondents, indicated that upon examination in January 2008, DMT, 'if left to her own devices, would not be able to manage her assets … but understands clearly in an overall sense how she would wish her assets to be managed and appeared to have the capacity to give instruction in that regard'.

5. There is considerable animosity between the applicant and the respondents which appears to be longstanding.

6. Upon the conclusion of the matter, brought about by the applicant seeking to withdraw the proceedings, the respondents sought an order for costs to be paid by the applicant, pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA). The applicant made a counter application that these costs instead be paid by the estate of DMT, pursuant to s 16 of the Guardianship and Administration Act 1990 (WA). Both applications are dismissed.

Background

1. These reasons concern two applications for costs arising out of proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act).

2. On 30 October 2007, the applicant (MGT) who at the time, was unrepresented by solicitors, lodged:

   i)An application pursuant to s 109(1)(b) of the GA Act seeking orders that '[a]ll rental properties payment of rentals vacation & new occupancy of tentant's [sic] ongoing maintenance orders & any other relevant matters concerning these properties be handed to a "real estate agency" management of properties duly appointed by the tribunal'. He stated in the application in brief, the reason he had brought the application was 'the incorrect way in which my mother's financial matters are being handled', and attached a typed 6 page document setting out the history of events leading up to his filing of the application.

   ii)An application seeking the appointment of an Administrator over the affairs of DMT, stating that the reason she needs an administrator is 'I am not happy with the way NED is dealing and the way she is conducting my mother's everyday affairs'.  MGT did not nominate anyone to be appointed as Administrator.

   iii)A further application was filed by MGT on 5 November 2007 pursuant to s 109(1)(a). It was not completed in the section, 'orders sought' except for a notation - 'see earlier submission'. In the section under 'Evidence of Disability', MGT had attached a typed document setting out that he was requesting that SAT make arrangements for his mother to see an independent doctor to record and report as to her medical and mental capacity. He also sought an appointment for a psychologist to make a report as to how her disability would affect her legal capacity. He wanted no family member to accompany his mother to this appointment and he agreed to meet the costs involved. Section 109(1)(a) of the GA Act relates to requiring the donee of an Enduring Power of Attorney (EPA) to file and serve a copy of all accounts kept by the donee of dealings and transactions made in connection with the power.

3. The events leading up to the filing of the applications are as follows:

   1.The proposed represented person [DMT], the mother of both MGT and the respondent, NED is the owner of six real estate properties in South Perth, Carlisle, Cloverdale and Mandurah.  At the time of making the application, four of these properties were rented, DMT lived in one residence and NED and her husband, GCD lived in another rent free.  The South Perth property occupied by NED and GCD is a house on three separate titles. 

   2.MGT had been assisting his mother, DMT, by undertaking the maintenance on the rented properties since his father died in 1980.

   3.At some time in 1999, DMT handed to MGT the duplicate certificates of title to the South Perth property comprising three titles, two other South Perth properties, the Carlisle property, the Cloverdale and the Mandurah property.  DMT asked MGT to hold the titles for her in safe keeping, specifically mentioning that he had a safe in his house.

   4.On 3 August 2006, a document was executed by DMT purporting to be an Enduring Power of Attorney (EPA) granting the donees, NED and GCD to be her attorneys, 'declaring that this Power of Attorney will continue in force notwithstanding my subsequent legal capacity'.  It was later acknowledged by counsel for NED and GCD that this document was ineffective as an EPA but was argued to be a valid ordinary Power of Attorney.

   5.On 9 May 2007 DMT was admitted to Royal Perth Hospital (RPH) with a fractured femur.  Upon discharge on 5 June 2007, DMT went to live with NED and GCD.  She was admitted to Sir Charles Gairdner Hospital on 7 June 2007 until 8 June 2007 with chest pain and on discharge continued to live with NED and GCD.

   6.At some time during the second half of 2007 the relationship between MGT and his sister and brother­in­law deteriorated.  This appears initially to be related to the management of the rental properties in which MGT was still being contacted by the tenants with regard to repairs, although he had no further responsibility for this and became annoyed, in that, he believed his mother's affairs were not properly being dealt with.

   7.In a Statutory Declaration made by NED and GCD on 3 September 2007, in their position as donees of the purported EPA, they stated that on 21 May 2007, NED had asked MGT to return the duplicate certificates of title that he held and he had failed to return the duplicate certificate of titles to her, as requested.

   8.On 24 May 2007, MGT removed some items of furniture and personal effects from the house previously occupied by DMT.  MGT produced to the tribunal a document signed by DMT authorising the removal and categorising these items as gifts.

   9.The Statutory Declaration made by NED and GCD on 3 September 2007 supported an application for caveats to be placed over the properties for which MGT retained the certificates of title.  The application alleged that the respondents had concerns that MGT may attempt to deal with one or more of the properties or have his name registered on one or more of the titles to the properties, and as the duly appointed attorneys for the caveator, they were duty bound to ensure that MGT did not act in any way detrimental to the interests of the caveator.

   10.At some time in September 2007, MGT was told by GCD that DMT was not permitted to travel by car as she became dizzy and this affected her health.  MGT interpreted this stand as interfering with his relationship with his mother and his ability to take her out as had been his previous habit.  He later attested to the Tribunal that his mother suffered no such ill effects.

   11.MGT accompanied DMT on a visit to her general practitioner, Dr Quo, on 2 October 2007 who prepared a report on that date, stating that he had been DMT's general practitioner for over seven years and that she had a diagnosis of mild cognitive impairment which he first recognised in 2007.  He stated that DMT was incapable of making reasonable decisions now in relation to her personal health care, her living situation or her financial affairs.  He made further comment that her capacity had not been fully assessed formally.  This report was filed with the applications on 30 October 2007.

   12.MGT alleged he had a conversation with DMT on 12 October 2007 wherein he asked his mother about his continued retention of the certificates of title and about the caveat.  MGT stated that DMT continued her request that he retain the titles [applicant's submissions with regard to costs].

   13.The evidence in par 6, par 10 and par 12 was not tested at a hearing as the matter was finally resolved without the matter proceeding to a hearing.

   14.The matters were first listed for hearing on 20 December 2007.

   15.Prior to the hearing on 20 December 2007, the respondents filed submissions in answer to the application, provided the Tribunal with a copy of the purported EPA, a medical report and objected to the orders sought in that they lacked specificity as to what the applicant was actually seeking by way of an audit.  Orders were made on 20 December 2007 for:

   i)MGT to deliver up to the Tribunal all of the certificates of title in dispute.

   ii)NED and GCD to file submissions as to the validity of the EPA and whether or not DMT has the capacity to make reasonable decisions with regard to her financial affairs.

   16.The medical report filed by the respondents prior to the hearing on 20 December 2007 was not adequate for consideration of the capacity of DMT given that it was a document prepared for DMT's general practitioner and in reference to her medical condition following her fractured hip.  In the report, a comment was made in reference to the proceedings brought before the State Administrative Tribunal (SAT), in that, in the opinion of the writer, based upon that day's assessment, DMT had the mental capacity to decide upon her general welfare and management of her finances.  The document was signed by Mark D Donaldson, Physician, but he had not been present at the interview held by Dr Elizabeth Wong and a Social Worker on the day, neither of whom had signed the document.

   17.The matter was otherwise adjourned to 14 March 2008 and later to 20 March 2008.

   18.On 26 February 2008, the solicitors for the respondents filed a new EPA executed by DMT on 20 February 2008 replacing the previous EPA executed on 3 August 2006.

   19.On 29 February 2008, the solicitors for the respondents filed a report of Dr Mark Donaldson, Physician dated 29 January 2008 which in summary provided that a Mini Mental State Examination undertaken by DMT in June 2007, during a comprehensive Geriatric Assessment, scored 21 out of 30 points.  It was concluded that she had a cognitive impairment and possible early dementia but that her recent head injury made interpretation uncertain.  Dr Donaldson first saw DMT during her RPH hospitalisation in January 2008 and at that time he observed that:

   [w]hilst it was clear she had poor grasp of the details in relation to her assets and their management, she had a clear determination of what the strategic management of these assets should be and that the current arrangement involving her daughter should continue, stating that she actually did not wish her son to be responsible.

   Dr Donaldson concluded that:

   [L]eft to her own devices, she would not be able to manage her assets and maintenance would be vulnerable but that she understands clearly in an overall sense how she would wish her assets to be managed and appeared to have the capacity to give instruction in that regard.

   20.On 18 March 2008, the solicitors for the respondents filed a further EPA, dated 12 March 2008, following DMT having revoked the EPA signed on 20 February 2008 as it had failed to specify the exercise of the power being joint and several.

   21.At the hearing on 20 March 2008, the applicant was legally represented.  The matter was further adjourned to 4 June 2008 for final determination following orders made for the applicant to clarify what orders he was seeking, witness statements of the evidence he would adduce and his submissions in relation to each of the three applications.  The respondents were ordered to file their response including witness statements and submissions.  The Public Advocate was ordered to provide the Tribunal with a report as to the capacity of DMT to make financial decisions, the suitability of any less restrictive alternative, the need for an administration order and the wishes of DMT as to the appointment of an administrator and her wishes as to the most suitable person to be so appointed.

   22.The hearing on 4 June 2008 did not progress as the Tribunal received a letter from the applicant on 28 April 2008 withdrawing all applications.  He said that he took this action for the following reasons:

   i)My mother should not have been put through the hardship she has endured.

   ii)I blame SAT for not advising my mother of the reason's [sic] of why or how this matter came to be;

   iii)I still believe my mother was enticed into signing documents in which she had no idea waat [sic] was involved e.i. [sic]:

   a)Enduring Power of Attorney

   b)2 Caveats.

   23.The matter was listed for directions on 2 May 2008 and the following orders were made:

   i)The applicant has leave to withdraw his applications.

   ii)The applications are withdrawn.

   iii)The Certificates of Title held by the Tribunal pursuant to an order dated 20 December 2007 be released to either DMT, NED, GCD or the solicitors for the respondents.

   iv)On or before 16 May 2008, the respondents file with the Tribunal and serve on the applicant their submissions with regard to costs; and

   iv)On or before 30 May 2008, the applicant file with the Tribunal and serve on the respondents his response to those submissions.

   24.The respondents (NED and GCD) now seek an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the applicant pay the responding parties costs of each of the applications.

   25.The applicant, MGT, seeks an order that the respondents legal cost be paid pursuant to s 16(4) of the GA Act, that is, out of the assets of DMT.

Relevant legislative provisions:

1. Section 87 of the SAT Act relevantly provides:

   (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.

2. Section 16(4) of the GA Act provides:

   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.

3. Section 16(1) was repealed when the Tribunal commenced in January 2005; State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA); s 427. It had provided, in terms similar to s 87 of the SAT Act, that parties to proceedings under the GA Act bear their own costs.

4. The respondents have directed the Tribunal's attention to the decision in Chew and Director General of the Department of Education and Training [2006] WASAT 248, where the panel said at [85]:

   We take the view that in proceedings under the Act, the Tribunal should not generally make an award for costs unless 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.  The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.

5. The respondents then set out that such exceptional circumstances do exist in this matter, in that:

   1.The applicant did not comply with the Tribunal's rules in failing to support his application with information about two medical professionals who would be able to provide reports.

   2.The applicant did not include any medical reports that established that DMT had a disability and that the disability affected her decision­making ability and therefore the application was defective.

   3.That the orders expressed to be sought by the applicant in the s 109(1)(b) application were not within the power of the Tribunal to make and hence the application was fundamentally flawed.

   4.The orders expressed to be sought by the applicant in the s 109(1)(a) application were not within the power of the Tribunal to make and hence the application was fundamentally flawed.

   5.The applicant failed to clarify the orders that he sought before finally withdrawing the applications.

   6.That the above rendered the applications baseless and the applicant unnecessarily prolonged the hearing.

   7.The applicant made the applications for vexation and improper purposes, constituting an abuse of process in that he:

   i)Did not make the applications out of regard for the welfare of DMT;

   ii)Failed to provide any evidence of any wrongdoing or abuse of power by the respondents.

   iii)Failed to substantiate his claims that DMT was incapable of managing her financial affairs, or provide evidence that DMT required an administrator to be appointed to manage her financial affairs.

   iv)The applicant aired irrelevant personal grievances concerning NED.

   v)The applicant admitted that he made the applications in response to the caveats being lodged.

   vi)The applicant disclosed no reasonable excuse for failing to comply with the lawful request of the respondents to return the certificates of title.

   vii)The applicant was motivated by the desire to see the will made by DMT.

   viii)It was reasonable for the respondents to obtain legal advice and representation given the complexity of the issue of the EPA.

1. The Tribunal received the detailed bill of costs submitted on behalf of NED and GCD on 1 September 2008, totalling the sum of $19,643.80 which appears excessive given that the matter did not proceed to a hearing, but was the subject of three directions hearings.  Given the application by MGT that these costs be paid from DMT's estate rather than by him, the Tribunal sought the assistance of the Office of the Public Advocate to obtain the views of DMT.

2. The Tribunal received a report from Mr Gino Coniglio from the Office of the Public Advocate dated 4 November 2008 in which he provided notes of a meeting he and Ms Denise Fallon, also from the Office of the Public Advocate, held with DMT on 15 October 2008.  Unfortunately, not all of the information provided to DMT by Mr Coniglio was correct, in that there was no request by MGT that his mother meet his expenses, only that she should meet the costs incurred by his sister and brother­in­law that they were asking him to pay.

3. It is clear from the report that DMT was of the view that the expenses should be paid by MGT as he is the one who had 'incurred all the trouble', 'he was responsible'.

Reasons for Decision:

1. The Tribunal dismisses the respondents application for costs pursuant to s 87(2) of the SAT Act. The respondents argue that the applications were an abuse of process, in that, they were motivated by an improper purpose. The Tribunal does not find this to be made out.

2. The applicant, who on his evidence, had played a major role in his mother's affairs since his father's death in 1980 in the management of her many rental properties and who had held his mother's duplicate certificates of title, at her request for safe keeping, found himself in a situation where:

   1.His access to his mother was considerably reduced by her moving to live with his sister NED and her husband, GCD and during the course of the proceedings, all contact with his mother had ceased.

   2.He was asked to hand over the duplicate certificates of title by his sister, NED and upon his evidence sought to confirm his mothers wishes, which he says were contrary to the request of NED.

   3.He was then served with a Statutory Declaration in support of caveats taken out against the titles which set out that there was a belief that he may take action with the titles that would defraud his mother's estate and also alleging that he had removed furniture and goods from his mother's house without her consent.

   4.He then took his mother, DMT, to see her long standing general practitioner on 2 October 2007 who provided a report that DMT lacked capacity to make reasonable decisions in relation to her financial affairs and further that she was incapable of making a valid EPA (albeit that he stated he had not formally assessed DMT).

3. On this basis, the Tribunal accepts that the applications were not filed by motivation of an improper purpose, but were filed out of concern for the continued management of his mother's estate.

4. The Tribunal dismisses the respondent's further allegations concerning the subject matter and conduct of the proceedings as follows.

5. The respondents allege that the applicant did not comply with the Tribunal's rules in failing to support his applications with evidence that DMT had a disability that affected her decision­making capacity.  Clearly the report of Dr Quo dated 2 October 2007, filed with the applications on 30 October 2007, did provide evidence of this nature.

6. The respondents allege that the orders sought by the applicant in the applications made pursuant to s 109(1)(a) and s 109(1)(b) of the SAT Act were not within the power of the Tribunal to make and hence were fundamentally flawed. It is accepted that the application under s 109(1)(b) of the SAT Act was not clear and precise as to what the applicant was seeking, but the Tribunal does not find that this flaw was so great that it affords the respondents costs to be paid by the applicant. The Tribunal accepts that at the time of making the application he was not legally represented and the Tribunal's processes, should the matter have continued, would have ascertained the information required by the respondents by the time of the hearing. In any event, it was clear that he was concerned as to how his mother's estate was being managed under a purported EPA which was later acknowledged by the respondents legal representatives to have been invalid.

7. The orders sought under the s 109(1)(a) application were referred to the previous application. The further orders outlined by the respondents about this application refer to the applicant's concerns about his mother's capacity and the need expressed in the form to provide independent evidence of this.

8. The remaining matters raised by the respondents claiming that the applications were made vexatiously are either not accepted by the Tribunal or considered to be of insufficient nature to justify a costs award against the applicant.

9. The Tribunal accepts that it was reasonable for the respondents to obtain legal advice and representation with regard to the applications. This in itself, however, is not sufficient reason to award costs pursuant to s 87 of the SAT Act, as the usual situation with matters in this Tribunal, is that each party bears their own costs.

10. The Tribunal now turns to consideration of the applicant's request that the respondent's legal fees be met by the estate of DMT pursuant to s 16(4) of the GA Act.

11. The applicant has made no submissions as to why the costs should be paid by his mother's estate.  The GA Act allows the Tribunal to award costs if it is satisfied that a party to proceedings has acted in the best interests of, in this case, a person in respect of whom an application is made.

12. The Tribunal does not wholly accept that such is the case. 

13. It is apparent to the Tribunal that there is a long standing grievance between MGT and his sister, NED, about which the Tribunal received no evidence.  However, it can only be with such a background that matters reached the level of animosity that they did.  Firstly, there was obvious resentment from MGT that his sister and her husband have been, and continue to, reside rent free in a property in South Perth, comprising three separate titles, when his sister has her own property in South Perth that she has rented and from which she receives an income.  The Tribunal was not required to make any findings as to whether to do so is in the best interests of DMT.  It is noted that since May 2007, following a fractured femur, DMT has been residing with NED and GCD at that property.

14. Added to this was the readiness of NED and GCD to place caveats on the titles that were held for safekeeping by MGT.  The wording of the Statutory Declaration could only have caused further offence alleging dishonest motives by MGT.  There was no evidence before the Tribunal, and it is appreciated that the matter did not proceed to hearing, that there was any dishonest motive held by MGT, nor was any attempt to less formally obtain the cooperation of MGT.  For example, MGT appears not to have been provided with a copy of the purported EPA giving rise to the authority to claim the titles.

15. In addition, during the course of the proceedings, there was no willingness expressed by NED to facilitate her brother regaining some access to his mother.  This could not be said to be in the best interests of DMT.

16. It is noted that the matter was resolved due to the following:

    1.The applicant withdrew the proceedings;

    2.The Tribunal permitted the withdrawal of the proceedings given the inference it drew from Dr Donaldson's evidence that DMT had the capacity to make a valid EPA when he examined her in January 2008; and

    3.There was finally in place a valid EPA executed on 12 March 2008.

17. It is noted that DMT was opposed to the payment of the legal fees being met from her estate.

18. The Tribunal therefore finds no reason to vary from the usual course of events in that each party is responsible for their own legal fees.

Orders

1.The application by MGT for costs is dismissed.

2.The application by NED and Anor for costs is dismissed.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS M JORDAN, SENIOR SESSIONAL MEMBER