NG - [2025] WASAT 51 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NG [2025] WASAT 51 (S)
MEMBER:   DR E MARILLIER, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   5 JUNE 2025
FILE NO/S:   GAA 5308 of 2024

NG
Represented Person
DG
Applicant

Catchwords:

Guardianship and administration - Whether conduct of party constitutes exceptional circumstances justifying departure from starting position that parties bear own costs

Legislation:

State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

Costs awarded in part

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	Mr J Steedman

Solicitors:

Represented Person	:	N/A
Applicant	:	Steedman Stagg Lawyers

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

Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125(S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
PHQ and LPQ [2015] WASAT 5
PT [2020] WASAT 147 (S)
RK [2020] WASAT 53 (S)
WD [2022] WASAT 12 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

D applied on 13 February 2025 for an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that N2 should pay D's costs of the proceedings. D claims $27,500.00 in costs.

D's costs application

D argued that N2's conduct in:
(a)refusing to make the statutory declaration which would allow registration of the EPA at Landgate;
(b)asserting that NG did not lack capacity despite the report of Dr L with which he was provided prior to the initial Directions Hearing on 31 October 2024; and
(c)not signing the statutory declaration to enable registration of the EPA and sale of NG's property to fund the RAD despite saying he would do so at the Directions Hearing,
was 'motivated by his desire to obtain control of the voting of [company] shares, unnecessarily prolonged the hearing, was unreasonable and inappropriate, and was for an ulterior purpose - to obtain the control of the voting of the [company] shares'.[1]
[1] Costs application of applicant, 13 February 2025, para 18.
D recognises that he bears the onus of persuading the Tribunal to exercise its discretion to make a costs order.[2]
[2] Ibid, para 5 citing PT [2020] WASAT 147 (S) [22] citing RK [2020] WASAT 53 (S) (RK) [23] referring to Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) [9].
D submitted invoices totalling $39,437.75 representing 52.2 senior practitioner hours at $484 an hour and 25.1 junior practitioner hours. He accepted he should not be fully indemnified for his costs but seeks an order that N2 pay $27,500 of D's costs of the proceeding.

N2's response in opposition to the costs application

N2 argues that the Tribunal should not depart from the starting position that 'parties bear their own costs in a proceeding of the Tribunal'.[3]
[3] SAT Act s 87(1).
N2 argues:
(a)the guardianship jurisdiction is protective, and costs…

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 NG

Details

AGLC: NG [2025] WASAT 51 (S)
Case: [2025] WASAT 51 (S)
Decision Date: 5 JUNE 2025

CaseChat Overview and Summary

In the matter of NG, the respondent sought to overturn a decision made by the Federal Circuit and Family Court of Australia concerning a dispute over guardianship and administration. The primary issue was whether the conduct of the applicant warranted a departure from the general principle that each party bears their own legal costs. The court was tasked with determining if the applicant's actions constituted exceptional circumstances, thereby justifying a deviation from the usual cost-bearing rule.

The court delved into the specific conduct of the applicant, examining whether it was egregious enough to warrant a departure from the established principle. It considered various factors, including the nature of the conduct, its impact on the proceedings, and whether the applicant's actions were deliberately designed to cause delay or prejudice. The court held that the applicant's conduct did not reach the threshold of exceptional circumstances. As a result, the court upheld the starting position that parties bear their own costs, declining to order the respondent to pay the applicant's costs.

Given the findings, the court dismissed the application to overturn the costs order. The decision underscored the importance of adhering to procedural fairness and the principle that each party should ordinarily bear their own costs, unless there are compelling reasons to do otherwise. The court's ruling was based on a thorough analysis of the conduct in question and its implications for the administration of justice.

Orders