MO and JB - [2008] WASAT 228

JURISDICTION

STATE ADMINISTRATIVE TRIBUNAL

STREAM

: HUMAN RIGHTS

ACT

:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION

:	MO and JB [2008] WASAT 228

MEMBER

:	MS J TOOHEY (SENIOR MEMBER) MS S GILLETT (SENIOR SESSIONAL MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER)

HEARD

:	DETERMINED ON THE DOCUMENTS

DELIVERED

:	26 SEPTEMBER 2008

FILE NO/S

:	GAA 427 of 2008

BETWEEN

: MO

Applicant
AND
JB
Represented Person

FILE NO/S

GAA 444 of 2008 GAA 446 of 2008 GAA 448 of 2008 GAA 449 of 2008

BETWEEN

: AS

Applicant
AND
MO
Respondent

[2008] WASAT 228

Catchwords:

Guardianship and Administration Act 1990 - Applications for appointment of administrator and intervention in enduring power of attorney - Administrator appointed - Enduring powers of attorney revoked - Applications for costs - Whether applicant's legal costs should be paid out of the estate of the represented person under s 16(4) of the Guardianship and Administration Act 1990 - Represented person ordered to pay contribution of one-half of applicant's legal costs

Legislation:

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

State Administrative Tribunal Act 2004 (WA), s 87

Result:

Represented person to pay contribution to one half of applicant's legal costs

Application by represented person dismissed

Category: B

Representation:

GAA 427 of 2008

Counsel:

Applicant	:	Ms M Fifield
Represented Person	:	Self-represented

Solicitors:

Applicant	:	Avon Legal
Represented Person	:	Self-represented

[2008] WASAT 228

GAA 444 of 2008 GAA 446 of 2008 GAA 448 of 2008 GAA 449 of 2008

Counsel:

Applicant	:	Self-represented
Respondent	:	Ms M Fifield

Solicitors:

Applicant	:	Self-represented
Respondent	:	Avon Legal

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

Chew and Director General of the Department of Education and Training

[2006] WASAT 248

Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341

[2008] WASAT 228

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1              Cross-applications were made to the Tribunal for intervention in
enduring powers of attorney made by JB and for the appointment of an administrator to manage her financial affairs. The Tribunal revoked the enduring powers of attorney and appointed an administrator. JB's capacity was in dispute and the proceedings were protracted.
2              At the conclusion of the proceedings, cross-applications were made
by JB's niece for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) and by JB's administrator for costs pursuant to s 87(1) of the State Administrative Tribunal Act 2004 (WA).
3              In the first application, the Tribunal ordered that one half of the
niece's legal costs be paid out of JB's assets. It was satisfied that the niece acted in JB's best interests given medical evidence of her diminishing capacity due to dementia, and that she had reason to be concerned that her estate was at risk. It was relevant that, at the final hearing, JB's partner, who had previously strongly resisted the appointment of…

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 MO and JB

Details

AGLC: MO and JB [2008] WASAT 228
Case: [2008] WASAT 228
Decision Date: 26 SEPTEMBER 2008

CaseChat Overview and Summary

The case involved the appointment of an administrator and intervention in an enduring power of attorney for a represented person. The applicants, MO and JB, sought the appointment of an administrator for the represented person, and the revocation of enduring powers of attorney. They also sought an order that their legal costs be paid out of the estate of the represented person. The matter was heard in the Supreme Court of Queensland.

The primary legal issues were whether an administrator should be appointed for the represented person, whether the enduring powers of attorney should be revoked, and whether the applicants' legal costs should be paid out of the estate of the represented person. The court had to consider the relevant provisions of the Guardianship and Administration Act 1990, and whether the applicants' actions were reasonable and in the best interests of the represented person.

The court found that the applicants' actions were reasonable and in the best interests of the represented person. It held that an administrator should be appointed and that the enduring powers of attorney should be revoked. The court also found that the applicants were entitled to an order that the represented person pay a contribution of one-half of their legal costs, under section 16(4) of the Guardianship and Administration Act 1990. The court reasoned that the represented person had the ability to contribute to the costs, and that it was in the interests of justice to make such an order.

The court made orders appointing an administrator for the represented person, revoking the enduring powers of attorney, and ordering the represented person to pay a contribution of one-half of the applicants' legal costs.

Orders