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

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

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

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

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…

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 MK and GSK

Details

AGLC: MK and GSK [2009] WASAT 257
Case: [2009] WASAT 257
Decision Date: 24 DECEMBER 2009

CaseChat Overview and Summary

In the case of MK and GSK, the matter was before the Federal Circuit and Family Court of Australia. The dispute involved an application for costs to be paid out of the estate of the represented person. The applicant, who had been the litigation guardian of the represented person, MK, sought that the costs of the proceedings be paid from the estate of MK. The case centred on the legal principles and factors that the court must consider when deciding whether to allow costs to be paid out of the estate of a represented person.

The court was required to determine whether the general rule that parties bear their own costs should be set aside in the circumstances of this case. The court considered the nature of the application, the merits of the case, the conduct of the parties, and the effect of the decision on the represented person. The court also had to assess whether the applicant had acted in the best interests of MK and whether the costs were reasonable and necessary.

The court found that the application for costs to be paid out of the estate should be granted. The court held that it was appropriate to set aside the general rule that parties bear their own costs where it would be in the best interests of the represented person. The court noted that the applicant had acted in the best interests of MK and that the costs were reasonable and necessary. The court concluded that the applicant had demonstrated exceptional circumstances that warranted departing from the usual rule.

The court made an order that the costs of the proceedings be paid out of the estate of MK. The court also directed that the costs be assessed and paid within a specified timeframe. The decision provides guidance to practitioners on the factors to be considered in determining applications for costs to be paid out of the estate of a represented person.

Orders