MO and JB
[2008] WASAT 228
•26 SEPTEMBER 2008
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : HUMAN RIGHTS | ||
| ACT |
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| CITATION |
| ||
| MEMBER |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| 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 an administrator, conceded the need for an administrator and was herself appointed.
4 The Tribunal dismissed the application on behalf of JB. It did not
accept, in the circumstances, that her niece should have exhausted other avenues before bringing the proceedings, that she inflamed the situation by doing so or that her conduct added to JB's legal costs. The Tribunal was not satisfied there was sufficient reason to depart from the rule in s 87(1) of the State Administrative Tribunal Act 2004 (WA) that parties to Tribunal proceedings bear their own costs.
Background
5 Cross-applications have been made by parties to proceedings under
the Guardianship and Administration Act 1990 (WA) (GA Act) for costs orders pursuant to s 16(4) of the GA Act and s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The proceedings have a complex history which it is relevant to
summarise.
7 In July 2005, JB appointed PS her attorney under an enduring power
of attorney (EPA). In March 2007, JB executed a second EPA appointing her niece, MO, her attorney. In January 2008, JB revoked the second EPA and made a third, appointing her partner, AS, her attorney.
[2008] WASAT 228
8 In July 2007, AS applied for orders under s 109 of the GA Act for PS
to file records and accounts of her dealings as donee of the EPA and for the records and accounts to be audited. The Tribunal ordered PS to file and serve the documents but declined to order they be audited. After considerable delays, PS complied with the order. Other than some formalities, that completed those proceedings.
9 On 26 February 2008, JB applied for an order revoking the EPA she
had made in favour of her niece, MO. Documents lodged with the application indicated that JB had in fact revoked the second EPA in January 2008 and registered the revocation with Landgate, but she wanted an order that MO return the copy still in her possession.
10 On 28 February 2008, MO lodged applications for the appointment
of an administrator for JB and for orders revoking the EPA in favour of AS, requiring AS to file records of her dealings under it, and for the records to be audited.
11 In documents filed in support of their applications, JB and AS on the
one hand, and MO on the other, made claims and counterclaims about JB's capacity to make reasonable judgments about her relatively large and complex estate. Some submissions were in JB's name only and some in AS's name only; most were in their joint names.
12 AS and MO each alleged financial exploitation and abuse of JB by
the other, and medical reports submitted with their applications were at odds. JB and AS maintained that she was capable of managing her financial affairs. They disputed reports, including one from JB's former general practitioner, indicating that she had been diagnosed with moderate Alzheimer's-type dementia and was not capable of managing her financial affairs.
13 Numerous documents were lodged by JB and AS including Family
Court proceedings in which JB had been involved with a former partner, and AS regularly sent lengthy correspondence about the applications and JB's financial affairs, much of it alleging serious wrongdoing by doctors, Tribunal staff and others in terms that could only be described as inflammatory and frequently defamatory.
Tribunal hearings and orders
14 In late March 2008, at the instigation of JB and AS, JB attended on
Dr Roger Clarnette, Consultant Geriatrician, for an assessment of her cognitive capacity. Dr Clarnette saw JB on two occasions. He reported
[2008] WASAT 228
that she was not able to give clear responses about her financial affairs; her level of cognition had declined and her symptoms were consistent with degenerative brain disease; he did not believe she had the capacity to execute an EPA at that time.
On 3 April 2008, the Tribunal held a directions hearing and listed the applications for final hearing on 12 May 2008.
16 Mr Bower of Corser and Corser, on instructions from AS, attended
the directions hearing on 3 April and handed the Tribunal a lengthy email he had received that morning from AS which she had asked him to present to the Tribunal. The email advised that AS and JB would not be attending the hearing. It conceded, in light of Dr Clarnette's report, the possibility that JB had, in fact, lost capacity regarding her finances; further, that the EPA appointing AS might not be valid and the revocation of the EPA appointing MO must also be 'in question'. It referred to 'the need urgently to finalise outstanding legal matters and the extreme urgency relating to recent unaccounted losses from [JB's] superannuation fund' and asked for the appointment of an administrator 'to be expedited'.
17 On 1 May 2008, the Tribunal received a faxed letter from AS making
what can only be described as wild allegations against Dr Clarnette and various allegations about Tribunal officers and others. It concluded by stating that AS and JB had decided to move to another State where they have property 'beyond the jurisdiction' of the Tribunal.
18 The final hearing proceeded on 12 May 2008 and, despite their
email, AS and JB attended. JB continued to insist that she was capable of making reasonable judgments about her financial affairs but AS conceded that she was in need of an administrator.
19 The Tribunal found JB to be unable, by reason of mental disability,
of making reasonable judgments about her estate and appointed AS her plenary administrator. To put the matter of the EPAs beyond doubt, it revoked the EPAs in favour of MO and AS, and ordered MO to give to JB the copy of the EPA still in her possession. Parties were ordered to file and serve written submissions as to costs.
Legal representation
20 As noted above, some applications were made in JB's name only,
some in AS's name only, some in both their names, and some by AS on behalf of JB. At different times they instructed different legal
[2008] WASAT 228
representatives; even when they were legally represented, the Tribunal
received correspondence from them directly.21 In her original application for intervention in the EPA appointing PS,
AS stated that she was represented by Mr Parker of Butcher, Paull and Calder. This appears to have been overlooked by the Tribunal because correspondence was sent only to AS. Butcher, Paull and Calder had no involvement in those proceedings as far as the Tribunal is aware and AS did not indicate at any time that correspondence should be sent to them.
22 In JB's application to revoke the EPA appointing MO, she nominated
Corser and Corser as her legal representatives and Mr Bower of Corser and Corser appeared at the directions hearing on 3 April 2008. However, in letters to the Tribunal dated 6 and 7 April 2008, AS and JB advised that they had withdrawn their instructions and Corser and Corser subsequently confirmed they were no longer acting.
23 In her application, MO advised she was represented by Butcher,
Paull and Calder and they appeared for her at the directions hearing on 3 April 2008. The Tribunal referred them to AS's original application and raised the question of possible conflict of interest. Butcher, Paull and Calder undertook to clarify the matter and, on 29 April 2008, Avon Legal notified the Tribunal that they were now representing MO.
24 Also on 29 April 2008, the Tribunal received correspondence from
Butcher, Paull and Calder attaching a letter dated 24 April 2008 from Brett Davies Lawyers to MO advising they acted for JB who was a 'long-standing client' of their firm and asking her to return her copy of the EPA appointing her. Brett Davies Lawyers do not appear to have had any other involvement in the Tribunal proceedings and it is not clear whether they were aware of them.
JB and AS appeared at the final hearing on 12 May 2008 without legal representation. MO was represented by Avon Legal.
Orders sought and submissions
Costs sought by MO under s 16(4) of the GA Act
In support of her application MO says:
(i)
JB had been involved in protracted Family Court proceedings over a previous de facto relationship; she had also problems with her previous attorney and had made a new EPA in favour of MO;
[2008] WASAT 228
(ii) at the time MO was appointed attorney, she had moved to live with JB who was on her own and needed assistance; JB's family was concerned at the time that her capacity was diminishing and that she might need full-time institutional care within five years;
(iii) she was concerned, in light of what she considered was previous financial exploitation of JB; she brought her application after JB formed a relationship with AS and almost immediately revoked MO's EPA;
(iv) she acted in accordance with her role under the EPA and was obliged to protect JB from exploitation and abuse;
(v) her concerns about JB's lack of capacity to manage her financial affairs were borne out by the Tribunal's final orders;
(vi) she has expended a great deal of time and money in order to protect her aunt;
(vii) had she not pursued her applications, JB might have been at greater risk; AS's email advising she and JB were moving to another State underscores this.
MO's costs are estimated at approximately $6000 comprising:
(i) Avon Legal first invoice $1,799.60 (ii) Avon Legal final invoice, estimate $2,000.00 (iii) Butcher, Paull and Calder, estimate $2,000.00
$5,799.60
[2008] WASAT 228
Costs sought by AS under s 87 of the SAT Act
AS seeks an order for costs of $6,076.47 comprising:
(i) Hammond Worthington, solicitors, engaged in relation to MO's $587.40 'interference' in the activities of the trustees of JB's
superannuation fund(ii) Corser and Corser [in relation to the Tribunal proceedings] $2,750.07 (iii) Brett Davies lawyers [legal advice for preparation for SAT $836.00 hearing] (iv) Durack and Zilko [advice on implications of SAT final orders $1,078.00 made 12 May 2008] (v) Personal Asset Services [for preliminary financial advice] $825.00
$6,076.47
In support of her application AS says, in summary:
(i)
she honestly believed that JB had capacity to manage her financial affairs and she obtained medical and legal advice to refute what she believed were unfounded views about her capacity;
(ii)
her relationship with MO had been good until she (AS) resumed a previous relationship with JB, making MO jealous and mistrustful;
(iii)
at no time prior to making her applications had MO indicated to AS that she thought she was exploiting JB, and it was unreasonable for her to make that allegation;
(iv)
MO was deceptive and inflammatory in her submissions to the Tribunal and her comments to others about JB;
(v)
MO should have exhausted all other avenues before taking the costly and adversarial route to the Tribunal; had she been conciliatory, legal and other costs could have been saved;
[2008] WASAT 228
(vi) legal costs on both sides were exaggerated by the need to engage replacement lawyers 'because of the conflict of interested generated by [MO]'.
Relevant legislation
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.
31 Prior to the commencement of the Tribunal in January 2005, s 16(1)
of the GA Act provided that parties to proceedings under that Act bear their own costs. Section 16(1) was repealed by s 427 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) when the Tribunal commenced.
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.
…
(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.
Reasons for decision
MO's application for costs under s 16(4) of the GA Act
33 Section s 16(4) is wide in its terms: the only qualification is that a
party has acted in the best interests of the person whom proceedings concern. The intention of the provision is that a person who acts in another's best interests in making an application for that person's protection should not necessarily bear the costs associated with doing so.
34 Most parties to proceedings under the GA Act have only the best
interests of the person whom the proceedings concern at heart. However,
[2008] WASAT 228
something more than merely acting in best interests is required before the Tribunal will order a party's costs to be paid by, or out of the estate of, the person whom the proceedings concern.
35 Section 16(4) must be read in light of s 87 (1) of the SAT Act which
provides the starting point that parties to proceedings before the Tribunal are to bear their own costs. It is relevant that s 16(1) of the GA Act, which was repealed on proclamation of the SAT Act and in effect replaced by s 87(1) of that Act, provided the same starting point.
36 In this case, the Tribunal accepts that MO acted throughout the
proceedings out of concern for her aunt. Given JB's history with her former partner and her previous attorney, and given the medical advice indicating JB's mental capacity was diminishing, MO had reason to be concerned that she was vulnerable to exploitation and to ensure her assets were protected. It was not unreasonable, in the circumstances, for MO to question whether the new EPA appointing AS was operating in JB's best interests.
37 MO's concerns that JB was no longer capable of making reasonable
judgments about her estate were borne out by the Tribunal's finding that JB lacked the necessary capacity to make reasonable judgments about her estate and by its appointment of an administrator. It is relevant that AS did not press her objections to a finding of incapacity at the final hearing, and, in fact, sought the expedited appointment of an administrator.
38 The Tribunal does not accept AS's submissions that MO's conduct
led to added legal costs. It was reasonable, given the relative size and complexity of JB's estate, the multiple applications and that AS and JB had representation themselves at different stages, for MO to engage legal representation. It is also relevant that the proceedings became complicated and protracted largely because AS adopted a combative approach to all aspects of the proceedings including refusing to accept the opinion of Dr Clarnette whom she and JB had themselves selected to conduct an assessment. AS's conduct throughout the proceedings made it reasonable that MO retain legal representatives throughout. A more conciliatory approach by AS would have almost certainly reduced MO's costs and legal representation might not have been necessary at all.
39 The Tribunal is satisfied in this case that it should make an order
under s 16(4) and orders that costs of $3000 be paid out of JB's estate
towards MO's costs.
[2008] WASAT 228
AS's application for costs under SAT Act s 87
40 It is not clear from AS's submissions which costs were incurred by
JB, which by AS, which by them jointly, and which by AS on JB's behalf.
We will deal with them all together.41 Turning to the particular items of costs claimed, it is not clear how
items (i) and (v) relate to the Tribunal proceedings; we will accept they
do, but it is not clear why it was necessary to incur those costs.42 Item (iv) is for legal advice sought by AS after the Tribunal's final
orders. As far as the Tribunal can see, the solicitors concerned had no previous involvement in the proceedings. While AS was entitled to seek advice, they were the fourth firm consulted in connection with the proceedings; it is not clear why this was necessary and it only underlines the extent to which AS has engaged solicitors at different stages of the proceedings.
43 We do not accept that MO contributed to additional costs because of
the conflict of interest her solicitors at the time found they were in. If anything, assuming AS was familiar with JB's application, she might have raised this herself early in the proceedings as soon as she learned that MO was represented by the same solicitors.
44 AS maintains that MO should have exhausted all other avenues
before instituting proceedings in the Tribunal, and that her failure to conciliate escalated matters. The Tribunal does not agree. MO lodged her applications after the application lodged by JB for revocation of her EPA, and, compared with the submissions lodged by AS, MO's submissions were restrained and measured.
45 The Tribunal has a broad discretion to award costs in appropriate
cases: s 87(2). However, for an order to be made under s 87(2) there must be a good reason for departing from the rule in s 87(1) that parties to proceedings before the Tribunal bear their own costs.
46 The circumstances in which the Tribunal might make a costs order
have been discussed in a number of cases: see generally Uniting Church
Homes (Inc) and City of Stirling [2005] WASAT 341.
In Chew and Director General of the Department of Education and Training [2006] WASAT 248, the Tribunal observed at [85]:
We take the view that in proceedings under the [SAT] Act, the Tribunal should not generally make an award for costs unless a party has conducted
[2008] WASAT 228
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.
48 In the Tribunal's view, none of these principles apply in this case,
| and we see no other reason to depart from the rule in s 87(1) of the SAT Act. |
| Orders |
The Tribunal orders that:
1. MO's legal costs in the sum of $3000 be paid out of the estate of JB pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA). 2. The application by AS for an order under s 87(2) of the State Administrative Tribunal Act 2004 (WA) is dismissed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J TOOHEY, SENIOR MEMBER
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