MK and GSK

[2009] WASAT 257

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   MK and GSK [2009] WASAT 257

MEMBER:   MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   24 DECEMBER 2009

FILE NO/S:   GAA 2166 of 2009

BETWEEN:   MK

KK
JK
Applicants

AND

GSK
Represented Person

Catchwords:

Guardianship and administration - Application for costs to be paid out of estate of the represented person ­ Factors to be considered in determining costs applications - Whether the rule that parties bear their own costs should be set aside

Legislation:

Guardianship and Administration Act 1990 (WA), s 16(4)
State Administrative Tribunal Act 2004(WA), s 87

Result:

The application for costs is partially allowed

Category:    B

Representation:

Counsel:

Applicants:     Ms S Bruce

Represented Person       :     Self-represented

Solicitors:

Applicants:     Jackson McDonald

Represented Person       :     N/A

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

LC and JS [2007] WASAT 127

M [2008] WASAT 262 (S)

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The son, daughter and daughter-in-law of an elderly man applied for their legal costs to be paid from his estate following the determination of applications made by a third party to have an administrator and guardian appointed for him.

2. The elderly man's circumstances were complicated by issues relating to his living arrangements and by proceedings in the Family Court.

3. The Tribunal found that the son, daughter and daughter-in-law of the elderly man had acted in his best interests in obtaining legal advice and representation, and further, that there was good reason for departing from the rule that parties to proceedings before the Tribunal bear their own costs, but did not accept that all of their legal costs should be paid for from his estate.  It ordered costs of $5,000.00 to be paid from his estate.

Applications

1. This is an application for costs by the son, MK, daughter, KK and daughter-in-law, JK of an elderly man, GSK (represented person), and arises out of proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) that were heard and determined by the Tribunal on 9 October 2009. In submissions lodged prior to the hearing, the parties sought an order for payment of their costs from GSK's estate, which has been treated as an application under s 16(4) of the GA Act. Written submissions concerning costs were filed with the Tribunal on 15 October 2009.

Previous Orders

1. Applications for guardianship and administration were heard on 9 October 2009 and the Tribunal appointed GSK's daughter as his plenary administrator and his limited guardian for the period of five years, and one year respectively, and made an order revoking the enduring power of attorney (EPA) made by GSK in favour of his estranged wife (RK).

Background

1. The application seeking the appointment of a guardian and an administrator for GSK was lodged by a specialist medical practitioner on 18 August 2009.  The applicant submitted that GSK had dementia and that he lacked the capacity to make informed decisions concerning both his financial affairs and personal and lifestyle decisions.  Concern was expressed by the applicant that GSK's circumstances were complicated by RK's decision to initiate divorce proceedings, the conflicting interests arising from RK's role as GSK's attorney and the complexities associated with living separated under the one roof, given GSK's need for support and the particular family dynamics.

2. The Tribunal received written submissions on behalf of MK, KK and JK, prepared by their solicitor, which supported the need for both guardianship and administration orders and which proposed that KK be appointed as GSK's guardian and administrator and that the EPA in favour of RK be revoked.  Further advice was provided that application was being made for KK to be appointed case guardian to represent GSK in the Family Court proceedings.

3. A letter prepared by RK's solicitor, set out her general support for the need for both guardianship and administration orders for GSK, but opposed the suggested appointment of KK as administrator and guardian.  It further stated that RK did not intend to be involved in the proceedings before the Tribunal and that the EPA was not being used.

4. The hearing was attended by the applicants, Dr S, MK, KK and JK with their legal representative from Jackson McDonald; GSK, his son­in­law, JR, and a representative of the Public Advocate.  In addition, the hearing was observed by two other allied health professionals.  The Tribunal did not refer the applications to the Public Advocate for investigation, however, a brief report was prepared by her office.

5. Prior to the hearing, MK, KK and JK, through their legal representative, were provided access to inspect the application, the report prepared by the Public Advocate and the letter submitted by RK's solicitor.

6. GSK indicated at the hearing initially that he believed that he was able to look after his own affairs, but he later stated that he wished his daughter, KK, to be the person to make decisions on his behalf.

7. The parties present at the hearing concurred with the opinion provided by Dr S that GSK lacked the capacity to make informed decisions and it was not disputed that he was someone for whom both guardianship and administration orders could be made.

8. Other than the proposed appointment of KK as administrator and guardian, no­one else was proposed and there were no submissions at the hearing that an independent appointment be made.  GSK's estate was advised to be substantial and to include unencumbered property, shares and an interest in a family trust.

9. The Tribunal made orders revoking the EPA in favour of RK, and appointing KK as GSK's plenary administrator and limited guardian with authority to consent to medical treatment, to determine the services to which GSK should have access, and to decide where and with whom GSK should reside.  The administration order was made for review in five years' time and the guardianship order was made for review in one year.  The Tribunal considered that it was likely that personal and lifestyle decisions could be made informally by GSK's family once he is living elsewhere, away from his wife and his family law matters are resolved.

Legislation

1. Section 16(4) of the GA Act provides that, if the Tribunal is satisfied that a party to the proceedings commenced under the GA Act has acted in the best interests of the represented person, it may order that such costs relative to those proceedings as it sees fit, to be paid to that party out of the assets of the represented person.

2. Section 87 of the State Administrative Tribunal Act 2004 (WA) (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.

   …

The applicant's case

1. The applicants seek to recover all of their legal costs of $8,321.88 incurred for the period 24 August 2009 to 13 October 2009.

2. The applicants submit that good reasons exist for departing from the general principle that each party should bear their own legal costs due to the complexity of GSK's circumstances.  Whilst the submissions made by the applicants were wide-ranging, the Tribunal found the following factors to be most persuasive:

   •the nature of the relationship between GSK and his wife RK, had become increasingly tense and volatile over the months leading up to the hearing during which time GSK and RK were living separated under the one roof and RK had initiated family law proceedings for property settlement and interim spousal maintenance.  RK had ceased providing practical support to GSK and had refused to allow alternate support services into the home.  RK had prevented GSK's secretary from coming to the house and had refused to allow JK and KK to enter the house to provide care to GSK;

   •the relationship between GSK and RK remained volatile with GSK advising of a brief reconciliation in August 2009 during which period, he wrote cheques in RK's favour.  GSK remained vulnerable to influence by RK and in the period leading up to the hearing, RK technically remained GSK's next of kin, principal beneficiary under his will and held his power of attorney;

   •the concern that RK was behaving in a negative and hostile manner towards KK and MK as evidenced by the unfounded allegations in June 2009 that; KK and MK had unduly influenced GSK into making a new will, RK's stated opposition to the proposal that KK be appointed guardian and administrator, and that RK may have sought to prevent the appointment of a family member; and

   •the applicants sought to protect GSK's interests both in respect to the application before the Tribunal and in respect to matters relating to the family law proceedings.  Prior to the hearing, they could not determine the extent to which RK would be involved in the Tribunal process and in particular, whether she would attend or be represented at the hearing.

The Tribunal's decision and reasons

1. The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs. However, s 16(4) should not be read independently of the costs regime in the SAT Act and the starting position that parties bear their own costs. (see M [2008] WASAT 262 (S) at [66]). Thus, for an application for a costs order under s 16(4) to succeed, more than simply acting in the best interests of the person will be required.

2. In LC and JS [2007] WASAT 127 at [34] to [57], the Tribunal explores in what circumstances an order under s 16(4) may be made. The circumstances described are not exhaustive.

3. The Tribunal is satisfied in this case that an order for costs should be made under s 16(4) of the GA Act.

4. Whilst it is the Tribunal's view that legal representation at the hearing was not required, given that RK did not participate and was not represented in these proceedings; the complexity of GSK's particular circumstances and his vulnerability to influence were such that the Tribunal accepts that it was reasonable for the applicants to seek legal advice in respect to the applications for guardianship and administration. The Tribunal accepts that GSK's living arrangements, the concurrent family law proceedings, the volatility of his relationship with RK and the deteriorating relationship between RK and the applicants (MK, KK and JK), create an unusual and complex set of circumstances that justifies the exercise of its discretion under s 16(4) of the GA Act.

5. The Tribunal further accepts that it was reasonable for the applicants to arrange for legal representation at the hearing particularly as they could not predict whether RK would participate or be represented.

6. The legal representative's itemised accounts for the claimed costs of $8,321.88 set out hourly rates which exceed the rates shown in the Legal Practitioners (State Administrative Tribunal) Determination 2008 ­ Schedule.

7. Given an adjustment to the legal costs in accordance with the above Schedule and given that it was not necessary for the applicants' legal representative to attend the hearing, the Tribunal considers a costs order of $5,000 is appropriate in the circumstances.

Order

The administrator of the estate of GSK is to pay the applicants the sum of $5,000 as a contribution to their legal costs incurred in respect to the application heard and determined by the Tribunal on 9 October 2009.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS S GILLETT, SENIOR SESSIONAL MEMBER