MM - [2025] WASAT 103

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MM [2025] WASAT 103
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   24 FEBRUARY 2025, 11 APRIL 2025 AND DETERMINED ON THE DOCUMENTS
DELIVERED          :   23 SEPTEMBER 2025
FILE NO/S:   GAA 6673 of 2024

MM
Proposed Represented Person
YY
Applicant
SS
Third Party

Catchwords:

Administration - Allegations of coercive control and elder abuse - Presumption of capacity not displaced - Expert evidence - Briefing expert - Application dismissed - Costs application - Costs sought by Applicant for cost of expert report - Costs sought by Third Party for legal fees - Applications for costs dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 16(4), s 65, s 112(1), s 112(4)
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4), s 34, s 35, s 46, s 64(1), s 64(2), s 64(3), s 66, s 67, s 87, s 87(1), s 87(2), s 87(3)

Result:

Application for administration dismissed
Application for costs dismissed

Category: B

Representation:

Counsel:

Proposed Represented Person	:	In Person
Applicant	:	In Person
Third Party	:	Mr L Palmos on 24 February 2025 and Mr H Playford on 11 April 2025

Solicitors:

Proposed Represented Person	:	N/A
Applicant	:	N/A
Third Party	:	Palmos Legal

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

Briginshaw v Briginshaw (1938) 60 CLR 336
G v K [2007] WASC 319
GC and PC [2014] WASAT 10
GD and AD [2005] WASAT 203
LC and JS [2007] WASAT 127
Legal Services and Complaints Committee and Robertson [2023] WASAT 127
Legal Services and Complaints Committee and Robertson [2023] WASAT 127 (S)
LP [2020] WASAT 25
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Robertson -v- Legal Services and Complaints Committee [2025] WASCA 92
Stender and City of Cockburn [2025] WASAT 44
T [2018] WASAT 128
XYZ (Guardianship) [2007] VCAT 1196

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

MM is aged in her early 80s and has three children. Her daughter YY is the eldest child and the applicant in this matter. MM's second child is her son SS. YY and SS have a highly acrimonious relationship. MM's youngest child, her son VV, is an NDIS participant and lives with MM. MM owns the home where she lives with VV (MM's Home) and an investment property (Property) where SS lives.
YY is seeking to be appointed MM's administrator as she says MM is not capable of making complex financial decisions. YY believes MM is a victim of elder abuse and alleges that SS coerced MM to agree to sell 50% of the Property to him. YY is concerned that MM will not be able to support herself and VV in the future without rental income from the Property. YY also believes that the solicitor that acted for MM when negotiating the terms of the sale had a conflict of interest as he was acting for SS too.
Due to the serious allegations raised, and as the documents to transfer 50% of the Property had been lodged at Landgate, the Tribunal appointed the Public Trustee as MM's emergency administrator to, among other things, lodge a caveat against the title of the Property. The Tribunal also referred the matter to the Public Advocate for investigation and report.
I made orders to dismiss the application in April 2025. SS and YY indicated that they wanted to seek their costs of the proceeding. I allowed them to file submissions in relation to costs and indicated that I would provide my reasons for dismissing the application and my decision in respect of costs at the same time. These are my reasons.

Principles to be observed by the Tribunal

The primary concern of the Tribunal when making decisions under the Guardianship and Administration Act 1990 (WA) (GAAct) is the best interests of the person for whom the application was made, MM. The Tribunal must ascertain MM's views and wishes, as far as possible.
The starting point for the Tribunal is that every person is capable of making their own decisions. This is known as the presumption of capacity which is enshrined in the GA Act as follows:[1]
[1] GA Act, s 4.
…
(3)Every person shall be presumed to be capable of —
(a)looking after [their] own health and safety;
(b)making reasonable judgments in respect of matters relating to [their] person;
(c)managing [their] own affairs; and
(d)making reasonable judgments in respect of matters relating to [their] estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal[.]
The presumption of capacity is a fundamental principle in the GA Act and can only be displaced by clear and cogent evidence of incapacity leading the Tribunal to be actually persuaded that the person in respect of whom the application was made is a person for whom a guardianship and administration order can be made.[2]
[2] Briginshaw v Briginshaw (1938) 60 CLR 336; LP [2020] WASAT 25 at [48]; GC and PC [2014] WASAT 10 at [36].
Considering the seriousness of the consequences for a proposed represented person that flow from a finding by the Tribunal of incapacity, or the consequences of the Tribunal failing to identify an incapable person in need of protection, the Tribunal must make findings of fact about capacity which may be by reference to evidence from a wide variety of sources, including the evidence of medical and allied health professionals and also lay evidence.[3]
[3] XYZ (Guardianship) [2007] VCAT 1196 (XYZ) at [65].
The Tribunal will take all facts and circumstances into account when determining best interests. The Tribunal may inform itself on any matter as it sees fit, and is not bound by the rules of evidence, which ensures, as far as possible, that all relevant information can be considered by the Tribunal to make the correct decision in the person's best interests.[4]
[4] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 32(2) and s 32(4).
I have taken into account the oral evidence given at the hearings of 24 February (First Hearing) and 11 April 2025 (Second Hearing) and the evidence filed in the proceeding. The relevant features are summarised in these reasons.

Issues

When deciding whether to appoint an administrator, the Tribunal must first determine whether MM lacks the capacity to make decisions about her financial matters, which requires the Tribunal to be satisfied that MM has a mental disability that causes her to be unable to manage her finances. If so, the Tribunal will consider whether it needs to make an order, or whether there is another way for decisions to be made that is less restrictive on MM's freedom of decision and action. If the Tribunal needs to make orders, the Tribunal must then decide who the administrator will be, the powers they require and when the order will be reviewed.
The issues the Tribunal needs to decide in this matter are:
(a)has the presumption of capacity been set aside; and
(b)should the Tribunal depart from the usual position that each party bears their own costs?

Findings of fact

The facts set out in [14] to [40] below are not controversial and I make findings in accordance with those facts.

The Family Business

From the early 1990s to 2015, MM, her now-deceased husband HH and SS worked together in the Family Business. Unfortunately, HH suffered from dementia and was a victim of scamming activity. The Family Business also accrued a large taxation debt due to HH's financial mismanagement.
In 2015, SS resigned from the Family Business after 23 years. He was owed for loans he had made to the Family Business, long service leave and wages (Entitlements). YY started running the Family Business in 2015 following SS's resignation.
MM signed an enduring power of attorney in February 2015 to appoint YY as her attorney (2015 EPA). As MM's name was on a number of business bank accounts, it was convenient for YY to be her attorney when taking over the management of the Family Business.
SS mortgaged his home to pay the taxation and other debts incurred by the Family Business so that MM's Home did not have to be mortgaged or sold. Unfortunately, SS was unable to keep up with the repayments and had to sell his home.

2022

MM started negotiating the sale of the whole Property to SS in 2022, taking the Entitlements into account in the purchase price. Mr John Robertson of law firm Williams + Hughes acted for MM in the negotiations.
YY wrote a clause in the offer and acceptance that SS would buy the Property 'as is' due to a number of repairs that were required. However, SS was not able to obtain finance from a bank and the agreement was not finalised.
After living in aged care for several years, HH passed away in 2022.

February 2023 - agreement to sell 50% of the Property to SS

In February 2023, SS and MM reached a number of agreements:
(a)SS would purchase a 50% share of the Property for $550,000;
(b)SS and MM would then co-own the Property as joint tenants;
(c)SS would pay the stamp duty, costs of the transfer and all outgoings on the Property;
(d)around $280,000 of the purchase price would be 'set-off' by the debt the Family Business owed to SS for the Entitlements. In exchange, SS would release MM and the Family Business from any claim in relation to the Entitlements;
(e)SS would pay a cash component of around $270,000 to MM; and
(f)as SS could not obtain finance, MM would give SS vendor finance for the $270,000 (Loan). The Loan would be interest free, unsecured and SS would pay MM $800 per week in repayment of the Loan.
MM and SS signed a deed of settlement (Settlement Deed) and an offer and acceptance (Sales Contract) to record the agreements set out above. The Settlement Deed was drafted by Mr Robertson.

June 2024 - contact with Williams + Hughes

In June, YY became aware that the Settlement Deed had been signed 16 months earlier. YY took MM back to Williams + Hughes to see Mr Robertson to discuss the terms of the Settlement Deed. YY asked Mr Robertson to prepare a deed of variation (Draft Variation) to include a clause requiring SS to pay rent as YY's view was that MM should receive rental income on her 50% share. Mr Robertson said that he would prepare the Draft Variation.
Also in June, Williams + Hughes prepared and lodged a transfer of land document (Transfer) at Landgate to transfer the Property from MM's sole name to MM and SS as joint tenants.

September 2024 - contact with Williams + Hughes and further agreement

In September 2024, YY took MM back to see Mr Robertson to follow up on the Draft Variation, as it had not been signed. MM signed a letter to confirm that she was happy to continue with the sale of the Property.
In the same month, MM and SS reached a further agreement that SS would pay MM's living expenses and the outgoings on MM's Home. SS and MM also hand-wrote and signed an informal agreement to set out the costs SS would pay when purchasing the second half of the Property and how the costs he paid would be reconciled in MM's estate if the Property was paid off prior to MM's death, as SS's intention was to continue to pay MM's living expenses.

October 2024

In October, the Tribunal made findings against Mr Robertson in respect of professional misconduct in matters unrelated to MM. Mr Robertson's practising certificate was suspended on 8 October 2024.[5]

November 2024 - contact with Williams + Hughes and Landgate

[5] Legal Services and Complaints Committee and Robertson [2023] WASAT 127; Legal Services and Complaints Committee and Robertson [2023] WASAT 127 (S) and Robertson -v- Legal Services and Complaints Committee [2025] WASCA 92.

MM met with a new solicitor at Williams + Hughes, Mr Greg Mohen. Mr Mohen prepared a letter to MM dated 8 November (W+H Letter) stating that:
…
When I spoke with you on Wednesday and on Friday 8 November 2024, you told me that you did not want the transfer to proceed until you had negotiated further conditions with [SS] in relation to the transfer.
John Roberston has previously acted on matters which have involved him taking instructions from both you and [SS], including with regard to the settlement deed related to the transfer of [the Property].
It is now apparent to me that you and [SS] are no longer in complete agreement regarding the transfer. In that circumstance Williams & Hughes will not be able to continue to act for either you or [SS] and that you each need to now obtain independent legal advice regarding the settlement and the transfer.
I have also advised [SS] that I consider there to now be a clear conflict of interest which requires him and you to obtain independent legal advice, and I have explained the reasons why we cannot continue to act for him or you …
In late November, YY emailed Landgate to assert that MM was being coercively controlled and abused by SS in relation to the Transfer.

December 2024 - communications with Landgate and application to the Tribunal

In early December, YY contacted MM's general practitioner (GP) Dr L to allege that MM lacked capacity and was being coercively controlled and abused by a family member. Dr L advised YY to seek legal advice.
In mid-December, MM wrote to Landgate to confirm that she wanted the Transfer to proceed.
On 19 December, YY filed the application with the Tribunal seeking to be appointed as MM's administrator. The application form stated that on 18 December, YY requested a capacity assessment for MM from interstate neuropsychologist Dr J.
After making contact with Dr J, YY provided her with 16 documents relating to the Family Business and the agreements reached between MM and SS about the sale of the Property, the Entitlements and payment of MM's expenses.
On 23 December, the Tribunal appointed the Public Trustee as MM's emergency administrator.[6]
[6] GA Act, s 65.
On 23 December, MM signed an enduring power of attorney to appoint SS as her sole attorney (2024 EPA). MM later revoked the 2015 EPA that appointed YY.

January 2025 - assessment by neuropsychologist Dr J

On 20 January, MM's GP Dr L filed a medical report with the Tribunal stating that MM did not have a mental disability.
On 29 and 30 January, MM met with Dr J by videoconference, for a total of 3.5 hours, for the capacity assessment.

February 2025 - Dr J's Opinion and assessment by geriatrician Dr F

Dr J prepared a 'Clinical Neuropsychology Report and Opinion' dated 7 February 2025 (Opinion). Dr J also prepared a standard Tribunal medical report dated 7 February 2025.
Dr J's fee of $5,890.50 (Invoice) needed to be paid before Dr J would file the documents with the Tribunal. YY asked the Public Trustee to pay the Invoice using MM's funds, but MM did not agree. YY decided to pay the Invoice with her own funds so that the Opinion would be available to the Tribunal. The Opinion and medical report were filed with the Tribunal on 7 February 2025.
On 13 February 2025, MM met with geriatrician Dr F, who prepared a detailed letter setting out his assessment of MM's capacity.

Tribunal hearings and procedure

First hearing - 24 February 2025

The evidence available at the First Hearing exposed a difference in the opinions of the health professionals, in particular, between Dr F and Dr L on the one hand who opined that MM did not have a mental disability, and Dr J on the other, who diagnosed a mild cognitive impairment. MM agreed to go back to see Dr F for a further assessment. The matter was adjourned to a Second Hearing to allow the Tribunal to provide documents to Dr F so he could take further information into account in his assessment of MM's capacity.
A lengthy discussion ensued about the documents the Tribunal would send to Dr F to aid in his assessment. I decided to provide Dr F with copies of the following documents:
(a)Opinion and medical report dated 7 February 2025 by Dr J;
(b)medical report of Dr L dated 20 January 2025;
(c)2024 EPA and the revocation of the 2015 EPA;
(d)application form filed with the Tribunal;
(e)W+H Letter; and
(f)Settlement Deed.
MM advised the Tribunal that she had not seen Dr J's Opinion or any of the documents filed with the Tribunal. As SS's solicitor had made an application under s 112(4) of the GA Act on SS's behalf, the solicitor was in possession of a copy of the Opinion. SS's solicitor attempted to provide a copy of the Opinion to MM prior to the commencement of the First Hearing.[7] When a solicitor acting for a party is provided with copies of the documents filed in the matter, the standard Tribunal orders mandate that no copies are to be made and no part of any document or material is to be disclosed to any other person, even the person for whom the application was made.
[7] ts 7, 24 February 2025.
I made an order to ensure that MM could review all documents the Tribunal held about her.[8]
[8] Section 112(1) of the GA Act provides a conditional entitlement for the person for whom the application is made to have access to copies of all documents held by the Tribunal in relation to all proceedings relating to them.
On 26 February 2025, Dr F filed a standard Tribunal medical report which attached his letter of 13 February 2025 and confirmed his view that MM did not have a mental disability and was capable of making her own decisions.

Second Hearing

At the Second Hearing, I made orders to dismiss the proceeding and revoke the order appointing the Public Trustee as MM's administrator. As both YY and SS sought costs, I made further orders for the filing of submissions in relation to costs.

MM's views and wishes

The Tribunal must take MM's views and wishes into account, as expressed, or as gathered from her previous actions. MM's wish, as recorded in the 2015 EPA was that she wanted YY to manage her finances when YY took over the Family Business. However, on 23 December 2024 after YY filed the application with the Tribunal, MM signed the 2024 EPA to appoint SS as her attorney and revoked the 2015 EPA.

Views about Settlement Deed and agreements with SS

MM rejected the allegation that SS coerced her into selling the Property to him and was insulted by YY's suggestion that she was incapable. MM was very clear that she was happy with the agreement reached with SS in relation to the sale of 50% of the Property and the expenses SS would pay on her behalf. She was happy with the level of detail SS had provided about the expenses he had paid on her behalf.
MM's initial view in relation to the Transfer was that SS would pay off the whole of the purchase price before receiving the transfer of 50% of the Property. MM's recollection was that YY insisted that the Sale Contract was signed. However, she was now happy for the transfer of 50% of the Property to be finalised by Landgate.
MM explained that the agreement recorded in the Settlement Deed was her attempt to 'make things right' with SS in terms of what SS had done for MM and HH when he mortgaged his home to pay the debts of the Family Business and then had to sell because he could not keep up with the repayments.

Views about Family Conflict

MM felt that YY made the application to the Tribunal to cause trouble for SS and interfere with decisions MM had made that YY did not agree with. MM believed that YY was not seeking to altruistically look after her, but that YY wanted to become her administrator to 'get at' SS.[9]
[9] Clinical Neuropsychology Report and Opinion prepared by Dr J dated 7 February 2025 (Opinion).
MM explained that she has always had issues with YY wanting everything to be fair and equal, which was always difficult with three children. MM said that YY's clarion call was '[i]t's not fair'.[10] MM stated that she feels pressured to do what YY wants her to, to keep the peace and try to keep YY happy. MM explained that she did not want to go back to see Mr Robertson in June and September 2024, but she did so to placate YY.

Views about the Sale Contract

[10] ts 19, 24 February 2025.

MM said that she reluctantly agreed to sign the Sale Contract and only did so at the insistence of YY, as she had good reasons for not wanting the Property to be transferred immediately, such as the imposition of stamp duty and capital gains tax. SS agreed that YY insisted on the Sale Contract being signed. SS paid stamp duty of around $20,000.
YY denies that she insisted that MM sign the Sale Contract, although she acknowledged that she wrote the clause for the earlier offer and acceptance as mentioned in these reasons.
MM explained that she did change her mind about the Transfer going through due to the other costs that would be triggered. However, as there was a risk SS may not be refunded the stamp duty he had paid if the Transfer was withdrawn, she decided it was best to proceed. MM said she never changed her mind about the substance of the agreements reached with SS; she only changed her mind about the timing of the Transfer.

Views about the Draft Variation

MM explained that YY asked Mr Robertson to prepare the Draft Variation that would require SS to pay interest on the Loan and rent on MM's 50% of the Property. However, as MM did not want SS to pay rent or interest, the Draft Variation was never signed.

Views about the application to the Tribunal

MM was clearly frustrated with YY and referred to the application as 'nonsense'. MM was happy with the agreement reached with SS and she did not want YY to continue to interfere in her life.
I will next discuss the evidence before the Tribunal about MM's capacity.

Does MM lack capacity?

Neuropsychologist Dr J

YY contacted Dr J to ask that she perform a capacity assessment on MM. YY provided Dr J with 16 documents but did not provide all of those documents to the Tribunal. The Tribunal does not have copies of the following documents:[11]
(a)a chronology of the lodgement of the interactions with and in respect of Landgate prepared by YY outlining events from May 2023 to December 2024;
(b)a draft affidavit YY prepared for the Tribunal proceeding dated 15 January 2025 but was not filed;
(c)MM's will dated 2015 and codicil prepared in 2024. The codicil removes YY as executor. SS is appointed as sole executor and an additional gift of $200,000 is made to SS and VV;
(d)a report prepared in 2018 by business consultants about the Entitlements;
(e)a letter from the Government of Western Australia to YY dated 2018 about the Entitlements; and
(f)an email from an accountant to YY dated 18 March 2022 outlining the views of the accountant in respect of, among other things, the transfer of the Property, the structuring of a deed of settlement and the monies owed to SS in unpaid entitlements.
[11] Opinion, page 7.
MM undertook an Addenbrooke's Cognitive Examination - ACEIII and scored 89/100 which is just above the cut-off point of 88 that is taken to be indicative of an underlying neurodegenerative process.[12] Dr J noted that MM's immediate attention span and working memory capacity were within a normal range for her age. MM demonstrated a sound ability to learn and retain new information in the immediate term.
[12] Opinion, page 7.
However, MM was unable to place the hands on a self-drawn clock and mistakenly said the day was Wednesday rather than Thursday. Dr J further noted that MM provided incorrect numeric details without an awareness of having done so. For example, saying $8,000 instead of $80,000, or $30,000 instead of $300,000. MM also provided incorrect names of family members, using the name of HH instead of SS.
Dr J asked MM specific questions about the information contained in documents and MM was unclear of many of the details. On multiple occasions, MM offered to obtain a copy of the documents or to call SS to obtain the information Dr J sought, which Dr J declined.[13]
[13] ts 42, 24 February 2025 and ts 30, 11 April 2025.
Dr J was concerned, based on MM's answers, that MM could not understand various legal concepts, including the conflict of interest between MM and SS allegedly having the same firm of solicitors' act for them when negotiating the Settlement Deed. Dr J also considered that MM was uncertain about the formality and effects of SS paying her living expenses, which were then deducted from the unsecured and interest-free Loan.
Dr J concluded that there was a 'suggestion of some emerging mild cognitive decline' and that MM did not retain 'the requisite conceptual reasoning, self-monitoring ability or judgment and appraisal to allow her to advocate for her own interests in an independent manner entering into the deed of settlement'.[14]
[14] Opinion, page 22.
In the medical report filed with the Tribunal, Dr J stated that MM had a mental disability, which was a mild cognitive impairment. Dr J opined that MM can make decisions about simple financial matters but in terms of complex financial decisions, MM was vulnerable to influence from others and unable to protect her own financial interests.[15] Dr J was unsure whether MM could make decisions about legal matters as it would depend on the complexity of the matter. Dr J was also unsure about whether MM had the cognitive capacity to sign an enduring power of attorney.
[15] Medical Report of Dr J dated 7 February 2025.
Dr J's view was that the major concerns were:
(a)MM's inability to independently advocate in her own interests regarding the Settlement Deed, particularly in the context of significant family conflict; and
(b)MM's high vulnerability to the influence of others.

General practitioner Dr L

Dr L has known MM for two years. Dr L's medical report is brief and simply states that MM does not have a mental disability.[16]

Evidence of geriatrician Dr F

Letter dated 13 February 2025

[16] Medical report of Dr L dated 20 January 2025.

Dr F filed a detailed letter dated 13 February 2025 to record his review of MM. Dr F stated that he did not see any evidence to indicate that MM had any illness affecting her cognition or a functional impairment consistent with a cognitive problem. Dr F summarised as follows:
I conclude that based on today's information, [MM] has testamentary capacity. She certainly had very detailed accounts of her financial situation and based on this combined with a lack of significant cognitive impairment, I conclude that she does currently have capacity to handle complex financial affairs and simple financial affairs. She gave a very clear account of legal papers and I conclude that she does have capacity to sign legal papers including enduring power of attorney, enduring power of guardianship, advanced health directive and will. She demonstrated to me that she had good understanding of health care issues, services and lifestyle matters such as residential care having described these in practice in her family members. Thus, I conclude that she has capacity to make decisions regarding lifestyle matters, health matters and services. Given that she does not demonstrate to me major cognitive impairment, I conclude as well that she has capacity to vote.
I confirm that Dr F's summary of the information MM provided to him about her finances was consistent with the other evidence before the Tribunal about MM's estate. MM scored 30/30 on a mini-mental state exam.

Medical report

Following receipt of the documents set out in [42] above on 25 February, Dr F filed a standard Tribunal medical report dated 26 February 2025 stating that MM does not have a mental disability and is capable of making all decisions relating to her personal and financial matters.

Report from the investigator from the Public Advocate (Investigator)

The Investigator spoke with MM, SS, and YY as part of his investigation.[17] The Investigator noticed inconsistencies between what MM told him and the comments that were ascribed to MM by YY. When the Investigator discussed MM's comments with YY, YY asserted that MM was influenced by SS to make those comments.
[17] Report of the Investigator dated 17 February 2025.
The Investigator's view was, on the basis of all the evidence, the presumption of capacity had not been rebutted by the evidence and the application should be dismissed.

Evidence from the Public Trustee

Report from the Legal Officer from Public Trustee

The Legal Officer Ms P met with MM in late January 2025 and commented that MM provided 'reasonably astute' responses to the questions asked to demonstrate her understanding.[18] The Legal Officer found that MM recounted the following information in sufficient detail:
(a)the terms of the Settlement Deed;
(b)the development and creation of the Settlement Deed and Transfer, including alternative arrangements she had initially considered. MM explained that she did not want to transfer the Property as it would attract stamp duty and a capital gains tax liability. Instead, she intended to formalise the agreement with SS in a deed and keep the Property in her own name. She would then leave the Property to SS in an updated will;
(c)her understanding of being a joint tenant of the Property with SS;
(d)her financial circumstances and the particulars of the financial arrangements with SS;
(e)the debts owed to SS by the Family Business with specificity. MM also acknowledged that while the Family Business owed the Entitlements to SS, the company had no assets to pay him; and
(f)the reasons why she sought to withdraw the Transfer from Landgate.

Report from the Trust Manager

[18] Report from Legal Directorate dated 19 February 2025.

The Trust Manager commented that MM had a good understanding of her finances and she was frustrated that this whole process was costing her money.[19]

Views of YY

[19] Report of Trust Manager from the Public Trustee dated 17 February 2025.

YY's view is that MM is currently unable to make decisions about complex financial matters or understand how her decision to sell 50% of the Property to SS will impact the long-term financial security of MM and VV. YY attempted to show MM a graph to illustrate her concerns in the Second Hearing. YY's intention when making the application to the Tribunal was to delay the Transfer until the Draft Variation could be finalised to create an enforceable obligation for SS to pay certain expenses on MM's behalf.[20]
[20] ts 25, 24 February 2025 and ts 16, 11 April 2025.
YY agrees that MM had capacity in 2023 when she signed the Settlement Deed.[21] However, YY believes the agreement reached is unfavourable to MM and Mr Robertson acted for both MM and SS in conflict (which MM and SS do not accept). YY relies on the Tribunal decision handed down in October 2024 as evidence that Mr Robertson's legal representation in 2023 was not sound.[22]
[21] ts 14 and 21, 11 April 2025.
[22] I confirm that the matters the subject of the decisions referred to in footnote 5 herein are completely unrelated to MM and SS.
YY first suspected that something had changed with MM's capacity when MM was not interested in reading emails from YY which set out her thoughts about the Settlement Deed. YY has discussed the Settlement Deed or a particular clause from the Deed with MM perhaps every fortnight but at least once per month for the last 18 months.[23]
[23] ts 30, 11 April 2025.
YY's view is that because MM was not taking action in relation to YY's suggestions, despite indicating some level of agreement with the matters raised, and then changing her mind about others, that indicated a lack of capacity and inability to understand complex financial decisions.
YY acknowledged that if it was not for VV, she probably would not have made the application, as she was very concerned that she was going to be financially responsible for VV and MM in the future.[24]

Views of SS

[24] ts 27, 24 February 2025 and ts 23, 11 April 2025.

SS commented that, while not strictly relevant to the Tribunal proceeding, part of the reason for the concerns about MM's financial stability is because YY purchased the Family Business at half price and currently owes MM $120,000 in interest.
SS explained that his intention in paying his mother's living expenses is to ensure that she continues to enjoy the same lifestyle in retirement as she has always had, despite the reduction in her wealth due to HH's actions when he became unwell.[25]
[25] ts 18, 11 April 2025.

Consideration of capacity evidence

The capacity evidence before the Tribunal is inconsistent. Specifically, Dr J's evidence is that MM has a mild cognitive impairment and is incapable of making decisions about complex financial matters. YY is the only other person involved in the matter that shares this view.
I acknowledge that the concerns raised by Dr J, such as MM:
(a)making numerical errors;
(b)calling family members the wrong name;
(c)getting the day wrong;
(d)incorrectly drawing a clock face; and
(e)not picking up on and correcting self-made errors,
can be indicators of cognitive decline. However, my observations of MM over the two Hearings and her ability to explain the rationale behind her decisions is more consistent with the evidence of the Legal Officer, the Trust Manager, the Investigator, Dr L (who has known MM for two years) and Dr F. I place particular weight on the evidence of Dr F due to his qualifications and experience as a consultant geriatrician.
I also place weight on the evidence of the Legal Officer. As a solicitor, the Legal Officer was well placed to assess MM's ability to understand and manage real-world legal matters. The Legal Officer had all the relevant documents to hand to discuss with MM and was satisfied with MM's answers.
The Legal Officer stated that MM provided 'minimal answers' to a few issues, mostly relating to the Entitlements owing to SS. However, the events that gave rise to the Entitlements occurred around 10 years ago, so I place little weight on MM not having a clear recollection of those matters.

Conclusion and dismissal of application

From my observation of MM at the Hearings, the behaviour of her family members and the evidence given, I was satisfied that MM understands her estate, understands the agreements reached with SS and she provided sound explanations for the actions she has taken. I make no comment about the quality of MM's decisions, but as YY expressed a clear view that MM's decisions were unwise, I note that:[26]
There is a common maxim in the jurisdiction that people have a right to make bad or unwise decisions. Competent people make them all the time. It will be for the Tribunal in each instance to ensure that any order … is appropriate and that the [legislation] is not simply being used in an attempt to override what are capably made albeit bad or unwise decisions with which others engaged with or close to the proposed represented person simply disagree.
[26] T [2018] WASAT 128 at [35].
I have several concerns about the Opinion which impact on the weight I have attached to it, which I discuss further below. However, the aspect of the Opinion I agree with is that MM has difficulty advocating for herself and she is highly vulnerable to the influence of others.
However, I am satisfied that those issues are not caused by a cognitive impairment but are due to the complex personalities and intertwined financial interests of the family. MM gave evidence that the only person she feels influenced by is YY.
I was persuaded on the balance of the evidence before me that MM is able to manage her own affairs and make reasonable judgments about her estate. I am satisfied, and I find, that the presumption of capacity has not been set aside and MM is not a person for whom an administration order can be made.
Accordingly, on 11 April 2025, I revoked the order that appointed the Public Trustee as the emergency administrator and dismissed the application for administration.

Comments about the Opinion

It is necessary that I make further comments about the Opinion to explain why I have placed less weight on the Opinion than the other evidence in making my findings.
Dr J concluded that MM did not understand the conflict of interest and was therefore unable to advocate for herself when entering into the Settlement Deed. It is necessary to set out further evidence below that was not before Dr J to understand the effect of YY's interactions with Williams + Hughes in respect of the alleged conflict of interest because the conflict of interest issue was critical to Dr J's findings about MM's mild cognitive decline.

MM was not aware of the purpose of the interview by Dr J

MM described feeling 'ambushed' by Dr J. MM recalled that Dr J quizzed her about historical matters and documents that were over two years old and MM was expected to know what was in them.
YY did not discuss with MM the purpose of the interview with Dr J and the preparation of the Opinion. It was clear, in my view, that MM did not know why she was attending, as Dr J noted at the beginning of the interview with MM:[27]
[MM] was quick to question why it was that [YY] was 'going back to historical things that happened in our lives'. She informed me that the taxation office did not want to know anything unless it happened in the last seven years. She went on to tell me that the business was always well looked after and therefore 'I really don't know what [YY] is going on about.
[27] Opinion, page 9.
In my view, from speaking with MM and gaining familiarity with her pattern of speech, and from reading the portions of transcripts included in the Opinion, MM approached the interview as an informal chat or debrief rather than a rigorous assessment of her cognitive capacity. I am satisfied that this was because she was not aware of the purpose of the interview with Dr J.

MM did not review the documents provided to Dr J

YY did not tell MM that she was providing documents and information to Dr J. In addition to the 16 documents provided to Dr J prior to the interview, YY provided further information, at Dr J's request, on the morning of 30 January 2025 prior to the second interview.[28]
[28] ts 45, 24 February 2025.
YY assumed she was not required to give MM the opportunity to review the documents sent to Dr J.[29] YY asserted that MM should have been familiar enough with the terms of the Settlement Deed because of the frequency of their discussions about it, which occurred every fortnight or every month.

Information provided by YY

[29] ts 45, 24 February 2025.

In addition to MM not being made aware of, or able to review, the information provided to Dr J, the views of YY, as a significant person in MM's life, were taken into account by Dr J. Dr J specifically mentioned her concern about 'the discord' between MM's judgment and the 'appraisal of significant others'.[30] However, SS, as the other 'significant' person interested in the relevant historic financial matters, was not given an opportunity to express his views to Dr J.
[30] Opinion, page 22.
After the First Hearing, YY communicated with Dr J by email to discuss the capacity evidence. YY read out portions of their emails at the Second Hearing. In respect of MM not reading the documents in advance, Dr J said:[31]
The fact that [MM] in herself had not read over and familiarised herself with the deed, knowing that I was evaluating her decision-making capacity to enter into the same, I believe is telling in and of itself.
[31] ts 29, 11 April 2025.
Dr J's:
(a)assumption that:
(i)MM was aware of the purpose of the interview;
(ii)MM had been provided with the opportunity to review the relevant documents; and
(iii)she was evaluating MM's ability to enter into the Settlement Deed, which was signed in February 2023; and
(b)reliance on the information provided by YY, some of which is not agreed by MM,
means that I am unable to attach weight to the conclusion reached by Dr J that MM has a mild cognitive impairment that affects her ability to make complex financial decisions. I am satisfied that the process followed by Dr J was not independent or fair to MM.

I will next discuss the alleged conflict of interest with Mr Robertson, which has impacted Dr J's conclusions about MM's capacity.

The alleged conflict of interest with Mr Robertson

YY did not provide an email chain dated 27 January 2022 (2022 Email) to Dr J, which is relevant to what MM says is one of the reasons why Williams + Hughes stopped acting for her.[32] The 2022 Email contains privileged instructions from MM to Mr Robertson about the negotiations occurring at that time for SS to purchase the whole of the Property. In the 2022 Email, noting that YY was MM's attorney at this time, MM said to Mr Robertson:
Please allow [YY] to act on my behalf in dealing with you.
[32] YY provided the 2022 Email to the Tribunal on 9 May 2025 in support of her costs application.
Mr Robertson responded with:
I do not want to deal with [YY]. She is not reasonable and she is not objective.
MM also gave evidence that in June 2024, Mr Robertson told her that he did not want to deal with YY as he found her erratic and she always wanted to change things that were fine.[33]
[33] ts 16, 11 April 2025.
When MM met with Mr Mohen a few weeks after Mr Robertson's practising certificate was suspended, MM recalled that Williams + Hughes:[34]
…had given me a solicitor called Greg, and I was to go and see him on a Thursday morning. [YY] demanded I meet her first, and she had this list of stuff. And, anyhow, she emailed it to him. So by the time I got there at 11 o'clock, he's sitting saying, "I'm sorry, we can't deal with you. There's a conflict", and it was a whole page of things that [YY] had sent him[.]
[34] ts 20, 24 February 2025.
The contents of YY's email are unknown, as it was not before the Tribunal, but the email YY sent to Landgate in late November and to the GP Dr L in early December both allege that MM was being coercively controlled and abused. The email sent to Dr L also stated that MM's telephone and emails were being monitored.[35]
[35] Email from YY to Dr L dated 4 December 2024.
I will next set out the portion of the Opinion where the issue of the alleged conflict of interest and MM's understanding of why Williams + Hughes stopped acting for her is discussed in detail. It is relevant to note that Dr J had only been provided with the W+H Letter and YY's instructions about the alleged conflict of interest. The Opinion states:[36]
[36] Opinion, page 9.
73.[MM] told me 'our last two solicitors have refused to deal with her'. She was referring to [YY]. She attributed this to [YY] being 'erratic and irresponsible and sending non-stop emails'. She informed me that [YY] was responsible for a solicitor by the name of Greg, from William + Hughes Lawyers refusal to see her. When, at a later stage of the conversation, I asked [MM] why the solicitor would no longer work for her, she replied, 'Well, he thought he thought I was maybe the author of this thing. And. Oh, it was something. [YY], when she demanded that I go and see her before I saw the solicitor, she'd she'd already made notes on some. Oh, I can't even remember what it was on or on the deed and other things and they were so erratic, they made no sense at all. And so, I just looked at them, said, oh, yep. So off I went to the appointment. What I didn't know is she'd emailed them to the new solicitor called Greg, also from William Hughes. When I returned to the question of why the solicitor said he could not look after you at a later stage of the interview, [MM] replied, 'Because [YY] had sent him this email'. I asked again if she knew what it said. She replied, 'Oh, I can't remember that. There was a bit of gobbledygook as far as I was concerned. But I can get you a copy of it, if you wish'.
74.[MM] seemed to be quite unclear about the contents of the notes she was referring to. I asked her what the notes said and what they referred to. She replied, 'Look, I can't remember now. I can go and have a look for them if you like. Or I could ring [SS] and ask them to email them to me and I can get them that way'. I asked [MM] if she could recall roughly what points were being made in the note. She replied, 'No, I can't remember any of them, but I will if I get hold of this stuff. I can call [SS] and ask him to email it to me'.
75.It was apparent that she had come to the firm conclusion that the contents of those notes were responsible for her solicitor refusing to continue to act on her behalf and that this was the fault of [YY]. It was equally apparent that [MM] held this belief without having knowledge of the contents of the notes and without being able to bring to mind the reasons that were provided to her by the solicitor as to why he could no longer act for her in relation to the deed of settlement.
…
77.[MM] did not acknowledge or exhibit any insight into the reasons for Greg's refusal to act for her as they are set out in within the letter he addressed to her (dated 8 November 2024). (Original emphasis)
In the context of the 2022 Email and MM's evidence about YY's communications with Mr Mohen prior to the meeting, I am satisfied that MM adequately explained her view to Dr J that YY's interactions with Mr Robertson over a number of years and sending the lengthy email to Mr Mohen prior to the meeting was the cause of Williams + Hughes' decision not to act for her. This was a reasonable view for MM to hold in light of:
(a)her long working relationship with Mr Robertson and his known views of YY;
(b)YY contacting Mr Mohen without discussing same with MM;
(c)the difficulty she experiences in her relationship with YY; and
(d)the understandably cautious approach taken by Williams + Hughes upon receipt of YY's email shortly after Mr Robertson's disciplinary proceedings were finalised.
I am therefore satisfied that the inconsistency between MM's conclusion about why Williams + Hughes stopped acting for her and the contents of the W+H Letter is not evidence of MM lacking the capacity to understand the legal concepts involved with a conflict of interest.

Costs

SS and YY have both made applications for costs. SS has incurred legal fees with Palmos Legal in the amount of $15,716.23. SS is seeking an order that YY pay $15,000 towards his legal costs.
YY is seeking reimbursement of the cost of Dr J's Invoice, although she does not state who she is seeking reimbursement from.
The jurisdiction to make a costs order is found in s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and s 16(4) of the GA Act. The SAT Act sets out the starting point in relation to costs in Tribunal proceeding, which is that each party should bear their own costs.[37] However, the Tribunal has discretion to make an order for the payment by a party of all or any of the costs of another party in a proceeding.[38] The party seeking costs bears the onus of persuading the Tribunal to exercise its discretion to make a costs order.
[37] SAT Act, s 87(1).
[38] SAT Act, s 87(2).
When considering costs, the relevant question for the Tribunal to consider is the circumstances in which it would be appropriate for the costs to be met by the estate of the proposed represented person under s 16(4) of the GA Act, or by another party under s 87 of the SAT Act.
As it is not clear from YY's submissions whether she is seeking reimbursement of the Invoice from SS pursuant to s 87(2) of the SAT Act, or MM pursuant to s 16(4) of the GA Act, I will discuss the regime and relevant principles that relate to both.

Principles regarding costs under s 16(4) of the GA Act

Section 16(4) of the GA Act states that:
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.
It is not difficult for a party to assert that they are acting in the proposed represented person's best interests, as generally, most parties are focused on the wellbeing of the person when making an application to the Tribunal. However, 'good intentions' are not sufficient to be awarded costs, and the discretion under s 16(4) is not independent from the overarching principle in the SAT Act that each party bears their own costs.[39]
[39] GD and AD [2005] WASAT 203.
The Tribunal exercises a protective jurisdiction under the GA Act. The proceedings are investigative in nature which means that the Tribunal has:[40]
a duty to inquire, the ability to inform itself, the power to compel the production of witnesses and documents, the discretion to determine its own procedure, the informality of the hearings, the absence of the obligation to abide by the rules of evidence, the requirement to provide fair process, the ability to make a decision on the papers, the need for the proceedings to be reasonably prompt, the absence of the burden of proof on the parties, the requirement for the standard of proof that the Tribunal be satisfied as to its decision and the absence of legal representation for parties and their right to self-representation.
[40] LC and JS [2007] WASAT 127 (LC and JS) at [41], citing Inquisitorial Processes in Australian Tribunals, Narelle Bedford and Robin Creyke, The Australian Institute of Judicial Administration Incorporated: March 2006: 15.
The information the Tribunal requires to determine an application is obtained by the Tribunal's own processes, with the intention that the matter is determined in one hearing if possible.[41] If a decision cannot be made at that hearing, the matter can be adjourned to a further hearing to allow time for further evidence to be obtained by the Tribunal, with an open discussion with the parties about the process to be followed, particularly if it is necessary for the person for whom the application was made to undergo a further assessment. This is what occurred in this matter.
[41] Sections 34, 35, 66 and 67 of the SAT Act allow the Tribunal to seek documents and reports from parties and also from anyone else that may hold documents or information relevant to the proceedings.
The investigative nature of Tribunal proceedings under the GA Act, in addition to:
(a)the primary concern of the Tribunal being the best interests of the person for whom the application was made; and
(b)the presumption of capacity,
means that parties can attend a hearing of an application made under the GA Act without legal representation as it is reasonable to expect that the Tribunal will obtain the evidence required to make the correct decision.
If a party chooses to engage legal representation in a GA Act matter, the Tribunal has identified relevant factors to consider when exercising the discretion to award legal costs, such as in situations where:[42]
[42] LC and JS at [56].
(a)it is unlikely that an application would have been made to the Tribunal and the represented person would not have benefitted from the protection of an order had not legal advice been sought by the applicant;
(b)there are serious allegations that the proposed represented person is suffering from abuse, and legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
(c)the conflict between significant parties is of such magnitude that it is unlikely they could present a coherent case to the Tribunal in respect of the history and needs of the proposed represented person without legal assistance;
(d)the application is of such complexity that legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
(e)the application is contentious and unique; and
(f)the application raises a special point of law.

YY's costs application

If YY is seeking that MM pay the Invoice - s 16(4)

The application form indicates that YY sourced the assistance of Dr J in December 2024. YY made all necessary arrangements for the assessment with Dr J without discussion with MM. Specifically, there was no agreement that MM would pay for the assessment.
The jurisdiction of s 16(4) of the GA Act is usually evoked when seeking the payment of legal costs, although the section provides that the Tribunal can order 'that such costs relative to the proceedings' be paid out of the assets of the person for whom the application was made.
I am satisfied that the Tribunal's discretion under s16(4) provides for any costs relative to the proceedings being paid out of the assets of the proposed represented person. A statutory provision must be construed in a manner that is consistent with the language and purpose of all the provisions of the statute.[43] The GA Act was:[44]
… designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
[43] Stender and City of Cockburn [2025] WASAT 44 at [22] citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].
[44] Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] per EM Heenan J.
The ordinary meaning of 'relative to' is having reference or regard to, or being relevant or pertinent to.[45] A report about a person's capacity is clearly relevant to the question of whether the Tribunal should appoint an administrator for the protection of that person.
[45] Macquarie Dictionary (2013): 'relative to'.
The SAT Act provides that the Tribunal may appoint an expert to assist it in relation to a proceeding whether by providing advice, professional services or by giving evidence.[46] The Tribunal may order a party to pay the Tribunal's costs of obtaining the assistance of the expert only if the Tribunal gives a party notice of the intention to obtain such assistance and gives that party an opportunity to be heard in respect to it and the costs of obtaining that assistance.[47]
[46] SAT Act, s 64(1).
[47] SAT Act, s 64(2) and s 64(3).
To the best of my knowledge, there are no published decisions where the Tribunal has ordered that the costs of expert evidence be paid from the estate of the proposed represented person pursuant to s 16(4). However, I am satisfied based on the provisions I have referred to that if notice is given, the Tribunal has discretion to prepare orders to obtain an expert report with the costs of same to be paid out of the proposed represented person's estate.[48]
[48] G v K [2007] WASC 319 at [98] - [99].
Alternatively, if notice was not given and the Tribunal was satisfied that obtaining the report was in the proposed represented person's best interests, then the terms of s 16(4) would still allow the Tribunal to exercise the discretion make an order that the costs of the report that was already obtained be paid from the estate of the person.

Application of s 16(4) to YY's application for costs

I accept that YY genuinely believes that MM lacks capacity due to her inaction in respect of renegotiating the Settlement Deed and her inability to understand her dire financial predicament, in YY's view, resulting from the agreement reached with SS. However, I am satisfied that:
(a)YY made the application due to her concern that she may become financially responsible for MM and VV's financial support in the future. YY gave evidence that she would need to earn an extra $100,000 per year to have $75,000 available to support MM and VV;[49]
(b)YY gave evidence that were it not for her concerns about VV, she would likely not have made the application;[50] and
(c)the conflict between YY and SS has impacted on YY's view of the reasonableness of MM's decision-making, as YY is unable to understand why MM would trust SS to pay her living expenses in accordance with the informal agreement reached, which is in conflict with YY's fixed, negative view of her brother.
[49] ts 27, 24 February 2025.
[50] ts 25, 24 February 2025.
I am therefore satisfied, and I find, that YY has not acted solely in MM's best interests in making this application. She has acted in what she perceives to be VV's best interests and in her own interests due to her concerns about being financially responsible for VV and MM in the future. YY has also allowed the conflict with her brother to cloud her judgment.
I am further satisfied, and I find, that obtaining the Opinion was not in MM's best interests. I decline to make an order pursuant to s 16(4) of the GA Act that MM reimburse YY for the cost of the Invoice. It was YY's choice to contact Dr J to engage and brief her to prepare the Opinion.

Application of s 87 to YY's application for costs

Section 87 of the SAT Act refers to the 'costs of a party'. Where costs are to be awarded, the Tribunal may also make an order for compensation in accordance with s 87(3) which states:
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 any 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.
It is therefore open to the Tribunal to make an order that another party, such as SS, reimburse the costs of the Invoice.
However, I am not satisfied that such an order is appropriate as SS played no part in obtaining the Opinion, which I have found was not in MM's best interests.
I will dismiss YY's application for costs.

SS's cost application and submissions

SS submits that a costs order should be made against YY for the following reasons:
(a)YY could have not have reasonably believed that MM is or was at any time incapable of managing her affairs, and the application was brought due to a perception that the sale of 50% of the Property to SS was beneficial to him as opposed to a genuine, objective belief that MM was no longer capable of managing her affairs. YY views the agreement reached as problematic but has failed to link that to MM's capacity;
(b)the application was an abuse of process, as the application was made to delay and/or defeat the Transfer, not because MM had a cognitive impairment, and YY has sought to use the GA Act to advance her own financial interests;
(c)YY's conduct unnecessarily prolonged the resolution of the dispute by engaging Dr J to prepare a report without consulting MM or SS, and providing information directly to Dr J that was not available to MM at the time of the examination, placing her at a significant disadvantage;
(d)YY rejected an offer made by SS on 7 March 2025 to withdraw the application, and when it was not withdrawn, caused the need for the application to be determined at the Second Hearing; and
(e)the seriousness of the allegations made and the imposition of the Public Trustee as the emergency administrator made it reasonable for SS to obtain legal representation in the proceeding.
YY contends that costs ought not be awarded to SS for the following reasons:
(a)as MM's enduring attorney, it was YY's responsibility to make 'the authorities' aware of MM's inability to make complex financial decisions for herself, due to the detriment that would be caused to MM's and VV's financial future;
(b)YY did not use the application for her own financial gain and it was made with genuine concern for MM;
(c)the focus of the Tribunal proceeding was MM's capacity, which SS's solicitors would have been aware of, so it was not necessary for SS to engage a solicitor to refute the allegations of elder abuse and coercive control. It was SS's choice to engage a solicitor; and
(d)YY did not prolong or delay the proceeding. YY did not accept the offer to withdraw as she believed that MM was struggling with her capacity and wanted to attend the Second Hearing to hear the results of the further assessment of Dr F.

Consideration

I asked the parties why SS, rather than MM, engaged legal representation. MM explained that when she attended upon Palmos Legal with SS, she was advised by the solicitor that she did not need legal advice, but SS did.[51]
[51] ts 10, 11 April 2025.
However, there are many complex features of this application, even for a person with capacity, and it would have been beneficial for MM to have the assistance of legal advice and representation. MM's solicitor could have obtained a copy of the Opinion on 7 February 2024 when it was filed, which would have provided ample opportunity to communicate with Dr J about her conclusions, and the documents and information provided by YY.
Taking into account the general principles in relation to costs I have referred to and the submissions of the parties, I am not persuaded that YY's conduct in any way caused SS to incur legal costs. I am therefore not persuaded that YY should make a contribution to SS's legal costs for the following reasons.
First, I am persuaded that YY believed that MM lacked capacity and that YY was genuine in her concerns for her mother and brother's financial security, in addition to being concerned about herself. YY had been discussing the perceived problems with the Settlement Deed with MM for 18 months and MM responded to YY's concerns in ways to 'keep YY happy' rather than being honest and direct with YY. MM went as far as attending meetings with Williams + Hughes when she did not want to and incurring the costs of those meetings and the preparation of the Draft Variation which MM had no intention of signing.
Objectively, YY's observations of her mother's behaviour may cause concern. MM indicated a level of agreement with the matters YY viewed as critical to MM's future, but did not follow through with YY's suggestions. She attended meetings with Mr Robertson but did not sign the Draft Variation. It was reasonable in my view for YY to be concerned about her mother's responses and lack of action to the concerns YY raised.
Second, I am satisfied that SS's intention in attending the Tribunal proceeding was to ensure the Settlement Deed was not disturbed and in turn, advancing his own financial interests. SS explained in detail at the First Hearing that he wanted to settle on the first 50% of the Property and purchase the second half, the cost of which was increasing. SS estimated that because he mortgaged and then sold his home to financially assist his parents, he has missed out on a capital gain of around $1,000,000, irrevocably harming his financial position.[52]
[52] ts 47 - 49, 24 February 2025.
Third, I am satisfied that YY's conduct did not prolong the resolution of the proceeding. It was necessary for the Second Hearing to occur so that further evidence could be obtained from Dr F. YY independently sought the assistance of Dr J and MM independently sought the assistance of Dr F. It was therefore necessary, in my view, that Dr F be given Dr J's Opinion and other relevant documents to have the opportunity to reconsider his assessment of MM's capacity. MM agreed with this course of action. The only delay in the proceeding occurred when SS's solicitor disagreed with certain documents being provided to Dr F, taking an adversarial approach to protect SS's interests in ensuring that the Settlement Deed was not disturbed.[53]
[53] ts 18, 24 February 2025.
Fourth, it was reasonable for YY to reject the offer made on 7 March 2025 to withdraw the proceeding. The Second Hearing was scheduled at the instigation of the Tribunal for the reasons set out above, and it is consistent with YY's stated concern for her mother. It is therefore reasonable that YY wanted to hear the updated evidence of Dr F. Further, an applicant can only withdraw proceedings with leave of the Tribunal.[54] I would not have allowed the application to be withdrawn prior to the Second Hearing as it was necessary to receive the further evidence from Dr F.
[54] SAT Act, s 46.
Fifth, in terms of the seriousness of the allegations made against SS, it was his choice to obtain legal representation to defend the Settlement Deed and protect himself against YY's allegations of abuse and coercive control. The Tribunal does not have jurisdiction to make findings or give remedies in respect of such allegations. The Tribunal has no jurisdiction at all if the presumption of capacity is not set aside. SS had the benefit of legal advice to that effect.
Sixth, there was nothing complicated about this matter in terms of SS's interests that required him to obtain legal advice and representation. SS is a sophisticated, professional party who capably advocated for, and advanced, his own interests at the Hearings.[55] The appointment of the Public Trustee as the emergency administrator is a routine measure taken by the Tribunal in matters where there is an immediate risk to the person's estate. MM communicated directly with the Legal Officer and Trust Manager at the Public Trustee, so I am satisfied that the involvement of the Public Trustee did not cause SS to incur legal fees.
[55] ts 47 - 49, 24 February 2025 and ts 17 - 18, 11 April 2025.
Finally, the Settlement Deed was signed in February 2023, two years prior to the application being made, with all parties acknowledging that there were no concerns about MM's capacity at that time. Since then, SS agreed to pay, and has been paying, more of MM's expenses than was required under the Deed, which is not consistent with elder abuse. SS submitted at the First Hearing that the Settlement Deed was an enforceable agreement and even if he was presented with the Draft Variation to sign, he was not obliged to sign it if he did not want to. That is correct and is further evidence of SS's ability to advocate for himself.
The Tribunal will make findings about MM's present capacity and whether she needs an administrator now, meaning that any allegation of 'coercive control' or 'elder abuse' in respect of entering into the Settlement Deed or concerns about a conflict of interest with the solicitor acting for MM in 2023 would not be relevant.
I therefore make the following orders.

Orders

The Tribunal orders:
1.The application of [YY] for costs is dismissed.
2.The application of [SS] for costs is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
23 SEPTEMBER 2025