NMG and MG - [2020] WASAT 19

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NMG and MG [2020] WASAT 19
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS (FINAL WRITTEN SUBMISSIONS FILED ON 15 NOVEMBER 2019)
DELIVERED          :   3 FEBRUARY 2020
FILE NO/S:   GAA 1710 of 2019
GAA 3628 of 2019
GAA 3629 of 2019
NMG
Represented Person
AND
MG
Administrator

Catchwords:

Guardianship and administration - Application for costs to be paid by or out of the assets of estate of the represented person under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Application for costs to be paid by the representative of a party under s 87(6) of the State Administrative Tribunal Act 2004 (WA) - Application seeking an order directing or authorising the administrator to pay legal costs under s 71 and 72 of the Guardianship and Administration Act 1990 (WA) - Party - Standing

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 16(4), s 17A, s 40(1), s 64(1), s 65, s 71, s 71(4), s 72, s 72(2), s 77(3)(a), s 74, s 106(1), s 110L(1), Sch 1, cl 13(2)(a)
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(1), s 87(2), s 87(6)

Result:

Costs of $30,000 to be paid to MG by or out of the estate of NMG
Application for an order under s 71 and 72 of the Guardianship and Administration Act 1990 (WA) dismissed

Category: B

Representation:

Counsel:

Represented Person	:	Ms D Taylor
Administrator	:	Mr H Jackson

Solicitors:

Represented Person	:	Tan & Tan Lawyers
Administrator	:	Hager Grubb & Partners Lawyers

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

A and ES [2005] WASAT 279
AM [2017] WASAT 65
DB and MJB [2013] WASAT 73
LC and JS [2007] WASAT 127
McLaughlin v Freehill (1908) 5 CLR 858
Medical Board of Australia and Woollard [2012] WASAT 209 (S)
MO and JB [2008] WASAT 228
Public Guardian v Guardianship and Administration Board [2011] TASSC 31
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Background

On 22 May 2019, the manager of the care facility where NMG resides made an application to the Tribunal under s 40(1) of the Guardianship and Administration Act 1990 (WA) (the GA Act) seeking the appointment of an administrator and a guardian for NMG because there were concerns about immediate decisions that needed to be made for NMG. The following was stated at page 6 of the application to the Tribunal:
Urgent request as Lawyer acting on [NMG's] behalf when he does not have capacity.
Wife is also concerned and engaging lawyers.
As the facility manager it is unclear what is occurring and [NMG] is financially vulnerable due to considerable [assets].
Following a directions hearing on 29 July 2019, where the Tribunal programmed the matter through to a final hearing, on 24 September 2019, NMG's wife, MG, through her lawyer, lodged two applications under the GA Act. The first application concerned an enduring power of attorney (EPA) made by NMG in 2012 whereby NMG appointed MG as his attorney and that the authority only came into force following a declaration by the Tribunal under s 106(1) of the GA Act that the donor, NMG, no longer had legal capacity (2012 EPA). The first application sought an order under s 106(1) declaring that NMG no longer had legal capacity with the consequence that the 2012 EPA became operative.
The second application concerned the enduring power of guardianship (EPG) made by NMG in 2012 (2012 EPG) whereby NMG appointed MG as his guardian, and had effect, at any time NMG was unable to make reasonable judgments in respect of matters relating to his person. The second application sought an order under s 110L(1) of the GA Act declaring that NMG is unable to make reasonable judgments in respect of his person with the consequence that the 2012 EPG became operative.
The applications made under each of s 40(1), s 106(1) and s 110L(1) of the GA Act were heard on 15 October 2019.
At the commencement of the hearing, counsel for NMG informed the Tribunal that she could not act on instructions from NMG as he 'was quite confused'. Following submissions from counsel for each of NMG and MG, the Tribunal appointed NMG's son, DJG, as limited guardian for NMG with the following sole function:
As the next friend of [NMG], conduct or settle the legal proceedings being GAA 1710/2019 on behalf of the represented person, except proceedings relating to the estate of the represented person.
That order was subject to review by 15 November 2019.
Similarly, in relation to the administration application for NMG, again following submissions from counsel for each of NMG and MG, the Tribunal appointed DJG as limited administrator for NMG with the following sole function:
As the next friend of [NMG], conduct or settle the legal proceedings being GAA 1710/2019, GAA 3628/2019 and GAA 3629/2019 on behalf of the represented person relating to the estate of the represented person.
That limited administration order was subject to review by 15 January 2020 in order to allow DJG, as the next friend of NMG, to seek a review of any administration order made by the Tribunal, if required, as it was common ground that there was disagreement as to who should be appointed administrator for NMG.
Further, during the course of the hearing on 15 October 2019, the applications under s 106(1) and s 110L(1) of the GA Act were withdrawn by MG.
The Tribunal handed down its decision on 29 October 2019 where the limited guardianship order of 15 October 2019 was revoked. Further, the Tribunal made administration and guardianship orders for NMG.

Orders sought

Following the handing down by the Tribunal of its decision on 29 October 2019, the Tribunal made the usual orders allowing the parties to apply for their costs in the proceedings before the Tribunal. Further, the Tribunal ordered that it would determine any application for costs filed on the documents after 15 November 2019, and would fix the amount of any costs awarded.
On 4 November 2019, MG, through her lawyer, sought an order under s 87(6) of the State Administrative Act 2004 (WA) (SAT Act) for NMG's lawyers to pay her reasonable costs in these proceedings or, in the alternative, that her reasonable costs be paid by or from NMG's estate pursuant to s 16(4) of the GA Act.
Finally, on 11 November 2019, NMG's lawyers sought an order under s 71 and s 72 of the GA Act, or such other section as may be appropriate for MG as the administrator of NMG's estate (save and except for the function given to DJG per the limited administration order of 15 October 2019) to pay their costs in representing NMG in the proceedings before the Tribunal from the assets of NMG's estate.

Relevant legislation

The determination of costs applications is at the discretion of the Tribunal within the framework of the SAT Act and the GA Act. The relevant provisions are s 87(1) and s 87(2) of the SAT Act which relevantly provide:
Costs of parties and others
(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.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
and s 16(4) of the GA which relevantly provides:
Costs
…
(4)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.
Section 87(6) of the SAT Act sets out when a party's representative may be ordered to pay costs. That section provides:
The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.
Finally, s 71 and s 72 of the GA Act sets out authority which may be conferred on administrators. Those sections provide:
71.Authority which may be conferred on administrator
(1)The State Administrative Tribunal may, under section 69, vest plenary functions in the administrator of the estate of a represented person.
(2)Where plenary functions are vested in an administrator he may perform, or refrain from performing, in relation to the estate of the represented person, or any part of the estate, any function that the represented person could himself perform, or refrain from performing, if he were of full legal capacity.
(2a)Despite subsection (2), a plenary administrator may not make a will or other testamentary disposition on behalf of a represented person, but this subsection does not affect the operation of section 111A.
(3)Where the State Administrative Tribunal does not under section 69 vest plenary functions in an administrator, it may, under that section, authorise the administrator to perform any specified function, including one or more of those set out in Part A of Schedule 2.
(4)The State Administrative Tribunal may require a function to be performed by an administrator and may give directions as to the time, manner or circumstances of the performance.
(5)In exercising its jurisdiction under this Part the State Administrative Tribunal may take a liberal view of the best interests of the represented person as mentioned in section 4(2), and in particular may, if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the represented person.
…
72.Further provisions as to authority of administrators
(1)The State Administrative Tribunal may give any direction, make any order or do any other thing provided for in Part B of Schedule 2.
(2)Without limiting this section or section 71, the State Administrative Tribunal may make any other order (whether or not of the same nature as those so provided for) that it thinks necessary or expedient for the proper administration of the estate of the represented person.
(3)Notwithstanding this section or section 71, an administrator shall not without the authority of the State Administrative Tribunal under section 71(5) -
(a)make a payment or disposition of a charitable, benevolent or ex gratia nature; or
(b)make a payment in respect of a debt or demand that the represented person is not obliged by law to pay.

Summary of MG's position

In respect of MG's claim for her reasonable costs in these proceedings to be recovered from NMG's lawyers under s 87(6) of the SAT Act, or in the alternative by or from NMG's estate under s 16(4) of the GA Act, counsel for MG submitted the following, in summary:
•MG's costs in these proceedings totalled $46,955.25 comprised of:
•counsel's fees of $16,112.25 for the period 26 July 2019 to 31 October 2019;
•lawyer's fees of $30,461;
•report from Mr Peter L Silbert, Neurologist, 16 August 2019, $132; and
•report from Professor Peter K Panegyres, Neurologist, 12 August 2019, $250.
•The applications were brought in circumstances where NMG's lawyers continued to act on NMG's instructions despite being told that NMG lacked capacity.
•MG engaged a lawyer to ask NMG's lawyers to cease acting because NMG lacked capacity. Despite that, NMG's lawyers:
(a)continued to act without any evidence that positively asserted that NMG had capacity;
(b)impugned the motivations of medical staff who had opined that NMG lacked capacity without any basis for doing so; and
(c)insisted that MG cease acting as NMG's informal administrator.
•This case involved considerable complexities including:
(a)two competing sets of EPGs and EPAs which related to questions as to NMG's capacity concerning the purported revocation of the 2012 EPG and 2012 EPA and the purported grant of the earlier EPG and EPA of June 2019;
(b)the possible interaction of different EPGs and EPAs depending on the findings of fact as to capacity with both factual and legal implications;
(c)the apparent likelihood of competing medical opinion as to capacity given that NMG's lawyers challenged the integrity of doctors who had opined that NMG lacked capacity; and
(d)suggestions/threats of possible Family Court proceedings.
•Despite considerable evidence that NMG lacked capacity and despite an absence of evidence to the contrary, NMG's lawyers did not concede NMG's lack of capacity until just before the hearing on 15 October 2019.
•MG was subject to several attacks on her ability and integrity in both cross-examination at the hearing on 15 October 2019 and in NMG's lawyers' submissions despite:
(a)no previous suggestion of any concern in either area;
(b)findings by the Public Advocate that friends and family, including DJG, had confirmed that MG had acted in NMG's best interests and to her best ability in managing his estate for the past few years;
(c)findings by the Public Advocate that throughout MG's stewardship of NMG's estate there was no suggestion of impropriety or that NMG's estate had suffered; and
(d)it was not NMG's action that raised sufficient concern for an application to be made to the Tribunal; rather it was the actions of NMG's lawyers.
•The attacks on MG were made on the basis that they were in accordance with NMG's wishes that MG not be appointed sole administrator of NMG's estate. However, such submissions could have been made without the need for such attacks.

Summary of NMG's lawyers' position

Counsel for NMG submitted the following, in summary:
•An order is sought authorising MG (NMG's administrator) to pay the costs of $24,670 incurred in NMG's representation in the proceedings from NMG's estate pursuant to s 71 and s 72 of the GA Act, or such other section as may be appropriate. The costs (excluding GST) comprised:
•counsel's fees of $9,010 for the period 2 August 2019 to 15 October 2019; and
•lawyers' fees of $15,660 for the period 5 May 2019 to 15 November 2019.
•NMG entered into a retainer with his lawyers on 14 May 2019 in connection with these proceedings. The lawyers were mindful of the allegations that NMG lacked capacity and therefore took steps to satisfy themselves that NMG was capable of providing them with instruction.
•The Tribunal was not asked to, nor did it make any immediate provision for the protection of NMG's estate under s 65 of the GA Act. This meant that NMG's presumption of capacity remained until it was displaced by order made on 15 October 2019 and therefore NMG was entitled to instruct lawyers to represent him in these proceedings. In any event, the issue of whether NMG was capable of providing his lawyers with instructions is a matter for his lawyers. In the conference in preparation for the final hearing, it became apparent that NMG's mental state had deteriorated and a substitute decisionmaker to provide instructions was sought.

Consideration by the Tribunal

In general, the Tribunal by the inquisitorial nature of its proceedings is able to make its decision in the best interests of the proposed represented person or the represented person (as the case may be) without the parties requiring legal representation. However, it is the right of any party to seek legal advice and representation in proceedings before the Tribunal but, ultimately, the decision to award costs is at the discretion of the Tribunal.
Section 87 of the SAT Act 'requires the Tribunal to exercise the discretion which it confers taking into account all the circumstances of the particular case, including the nature of the jurisdiction which the Tribunal has been called upon to exercise, and any rules which have been promulgated by the Tribunal, but starting from the presumption that no order for costs will be made': Western Australian Planning Commission v Questdale Holdings PtyLtd [2016] WASCA 32 at [9]. Therefore, the starting position is s 87(1) of the SAT Act, which provides that parties bear their own costs and given the nature of the conduct of the proceedings before the Tribunal, it will only award costs in exceptional or unusual cases.
The Tribunal first considered MG's claim for costs in the proceedings before the Tribunal.

The application under s 87(6) of the SAT Act

Notwithstanding the starting position (as set out above), if the Tribunal makes findings that the representative of a party acted in, or delayed the proceeding in a way that resulted in unnecessary costs, then the Tribunal may make an order under s 87(6) of the SAT Act that the representative of the party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred in the proceedings.
Counsel for MG submitted that given the circumstances in which these proceedings were commenced, as set out in the application to the Tribunal by the facility manager of the care facility where NMG resides, and the ultimate concession made as to NMG's capacity, the Tribunal should make an order that NMG's lawyers pay MG's reasonable legal costs pursuant to s 87(6) of the SAT Act.
Counsel for NMG submitted that insofar as MG seeks an order that NMG's lawyers pay her costs in these proceedings that application is opposed as it is misguided and failed to take into account the nature of NMG's relationship with those representing him.
NMG's lawyers submitted that when they took NMG's instructions initially and for some months following, NMG was oriented in time, person and issue.
It is common ground that NMG's lawyers took instructions from NMG which caused concern for the care facility manager that ultimately resulted in the application being filed with the Tribunal on 22 May 2019.
In the Tribunal's view, counsel for MG correctly noted that s 87(6) of the SAT Act does not anticipate an order for costs as a result of actions taken by a party's representative prior to the commencement of the proceedings in the Tribunal. That is, s 87(6) is concerned with the situation where a party's representative acted in, or delayed the proceedings which resulted in unnecessary costs. Counsel for MG did not assert that once the proceedings commenced that NMG's lawyers acted in, or delayed the proceeding in a way that resulted in unnecessary costs. This, is therefore not the case where the Tribunal can make findings that NMG's lawyers acted in, or delayed the proceedings before the Tribunal in a way that resulted in unnecessary costs.
The Tribunal therefore concludes that s 87(6) of the SAT Act is not relevant in this case.

The application under s 16(4) of the GA Act

In the alternative, counsel for MG sought MG's reasonable costs to be paid by or from NMG's estate pursuant to s 16(4) of the GA Act.
The Tribunal stated in LC and JS [2007] WASAT 127 (LC and JS) at [35], that s 16(4) of the GA Act should not be read independently of the costs regime set out in s 87 of the SAT Act (see also MO and JB [2008] WASAT 228 at [34]). Importantly, the entitlement to costs under s 16(4) of the GA Act has been treated more narrowly than simply the recognition that an applicant seeking an order for costs has acted in the best interests of the proposed represented person or the represented person (as the case may be), since it has been recognised that it is 'not a difficult threshold to cross' (see LC and JS at [34]). Therefore, something more than merely acting in the best interests of the proposed represented person or represented person is required before a costs order will be made under s 16(4) of the GA Act.

LC and JS identified at [56] the following as a non-exhaustive list of factors which might be taken into account by the Tribunal when deciding that a costs order may be warranted under s 16(4) of the GA Act:
•it is unlikely that an application would have been made to the Tribunal and the proposed represented person benefit from the protection of an order had not legal advice been sought by the applicant;
•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;
•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;
•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;
•the application is contentious and unique; and
•the application raises a special point of law.
Of course, the factors listed above can do no more than provide a guide in circumstances where the Tribunal retains ultimate discretion as there can be no limit on the circumstances in which such a discretion may be exercised.
These proceedings were commenced by the care facility manager lodging an application with the Tribunal in circumstances where NMG's lawyers were acting on NMG's instructions despite been told that NMG was on 'Sc8 [Schedule 8] medication impacting on his decision[-]making and is cognitive[ly] impaired' (page 2 of the care facility manager's Service Provider Report dated 22 May 2019 and page 6 of care facility manager's application to the Tribunal of the same date).
Counsel for MG submitted that despite MG engaging a lawyer to ask NMG's lawyers to cease acting for NMG because he lacked capacity, NMG's lawyers continued to act for NMG without putting forward any evidence that positively asserted NMG had capacity and also telling MG to cease to act as NMG's informal administrator, it was therefore entirely appropriate for MG to engage a lawyer in these proceedings in NMG's best interests. The Tribunal respectfully agrees with counsel for MG that it was appropriate for MG to engage a lawyer in these proceedings in NMG's best interests.
There were considerable complexities in this case.
Firstly, there were two competing sets of EPGs and EPAs and the related questions as to NMG's capacity with the purported revocation in May 2019 of the 2012 EPG and 2012 EPA and then the purported grant of the earlier EPG and EPA in June 2019 (where the purported grant occurred just after the care facility manager filed the application with the Tribunal).
Secondly, there was the possible interaction of different EPGs and EPAs depending on findings as to NMG's capacity with both factual as well as legal implications.
Thirdly, there was an apparent likelihood of competing medical opinion as to the capacity of NMG.
Finally, there were at least suggestions of Family Court proceedings. All of these complexities required legal representation.
Section 16(4) of the GA Act provides that the Tribunal may make a costs order to a party to the proceedings. The term 'party' is defined in s 3 of the GA Act as follows:
party in relation to an application under this Act means the applicant, the represented person or person in respect of whom an application is made, a person to whom notice of an application is required by this Act to be given, or to whom such notice is given, and any person who is heard by the State Administrative Tribunal under clause 13(2)(a) of Schedule 1[.]
The Tribunal is satisfied that MG is a party to these proceedings under the GA Act.
Further, the Tribunal is satisfied that MG has acted in the best interests of NMG because of the concerns raised about NMG's capacity as well as the considerable complexities of this case including that of the EPGs and EPAs.
Turning to consider what costs, if any, are to be awarded to MG under s 16(4) of the GA Act, the Tribunal is to consider 'what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion' (DB and MJB [2013] WASAT 73 at [49] citing Medical Board of Australia and Woollard [2012] WASAT 209 (S) at [66]). Although fixing costs involves a broad brush approach, the Tribunal still needs to be satisfied that the costs incurred are reasonable and not excessive. In addition, the Tribunal is guided by its objectives set out in s 9 of the SAT Act which includes in particular the objective to 'minimise the costs to parties'.
In A and ES [2005] WASAT 279, the Tribunal made a costs order under s 16(4) of the GA Act because the Tribunal was satisfied that the application was made in the best interests of the represented person and '[because of] the circumstances surrounding the revocation of the joint EPA, and the size and complexity of the estate' (at [21]). The award of costs was for a 'reasonable amount for obtaining advice and being represented at the … hearing'.
Applying these principles, and having regard to the schedule of costs which included legal costs as well as the costs of specialist medical reports filed with the Tribunal by MG, but without analysing the details of work undertaken, the Tribunal considers that MG's reasonable costs of the proceeding which should be awarded under s 16(4) of the GA Act is in the amount of $30,000 (out of the total costs claimed of $46,955.25).
Finally, the Tribunal turned to consider the order sought by NMG's lawyers.

The application for an order under s 71 or s 72 of the GA Act

Counsel for NMG sought an order directing or authorising MG (NMG's administrator) to pay the costs of $24,670 as set out in the schedule of costs filed for legal work undertaken between 5 May 2019 to 15 November 2019 representing NMG in these proceedings from the assets of NMG's estate pursuant to either s 71 or 72 of the GA Act, or such other section as may be appropriate.
Counsel for MG resisted the application by NMG's lawyers. Two reasons were given. First, counsel for MG submitted that NMG's lawyers are not a 'party' to these proceedings and it is not clear on what basis they have standing to make the application (see AM [2017] WASAT 65 (AM) at [117] [118]).
Second, even if NMG's lawyers have standing, counsel for MG submitted that the Tribunal should refrain from making the order because:
(a)such a direction would amount to interference with the ordinary conduct of NMG's estate. The payment of services, such as for lawyers, is an ordinary aspect of the task of an administrator. Except in the case of a question raising unusual doubt or difficulty, the Tribunal ought to refrain from interfering in that ordinary management: AM at [116]);
(b)the application is premature as it appears to assume that the account will not be paid but no such decision has been by NMG's administrator;
(c)in due course, should part or all of the legal costs not be paid, the ordinary course is for NMG's lawyers (as an unpaid creditor) to sue for recovery of the alleged debt in a court of competent jurisdiction: AM at [112] and [122]; and
(d)the submissions filed seek to do no more than justify the actions of NMG's lawyers in accepting NMG's instructions and continuing to act. The Tribunal's satisfaction that the continued retainer was justified is necessary but not sufficient to make the order sought.
The Tribunal notes that counsel for NMG is seeking an order whereby the Tribunal exercises its discretionary power to order or authorise NMG's administrator to pay legal fees incurred by NMG's lawyers in representing NMG in the proceedings before the Tribunal. It is relevant, in the Tribunal's view, that it is not the administrator who is seeking the order but rather NMG's lawyers.
This raises the question as to the standing of NMG's lawyers to seek an order from the Tribunal in these proceedings. If the Tribunal can be satisfied that NMG's lawyers are a 'party' to these proceedings, then they have standing in the matter and therefore the Tribunal can consider the application. However, if the Tribunal is not satisfied that NMG's lawyers are not a 'party' to these proceedings then they will not have standing in the matter with the consequence that the Tribunal has no jurisdiction and therefore must dismiss the application.
The term 'party' as defined in s 3 of the GA Act was set out earlier in these reasons. In the Tribunal's view, NMG's lawyers are not a 'party' to these proceedings as they are not the applicant, the represented person, a person to whom notice of the application is required to be given by the GA Act or to whom such notice is given or a person heard by the Tribunal under cl 13(2)(a) of Sch 1. The consequence is that NMG lawyers do not have standing in this matter and therefore the Tribunal does not have jurisdiction to consider NMG's lawyers' application.
Even if it could be said that NMG's lawyers are a party to these proceedings before the Tribunal, or if it could be said that once the legal fees came to the attention of the Tribunal that the power in s 71(4) and s 72(2) of the GA Act is enlivened, it is not appropriate for the Tribunal to exercise that power because once a declaration is made under s 64(1) of the GA Act by the Tribunal (in this case appointing an administrator for NMG's estate), new arrangements need to entered into with the administrator of the NMG's estate for matters such as legal services. An exception may be if NMG had challenged the declaration made by the Tribunal in the order of 29 October 2019, by way of review to the Full Tribunal under s 17A of the GA Act. In that case, legal fees may have been considered necessary by reference to s 77(3)(a) of the GA Act (see McLaughlin v Freehill (1908) 5 CLR 858 and generally the comments of Heenan J in S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306).
Finally, the Tribunal observes that it has been given wide power to make directions in respect of administration orders, see s 71(4) and s 72(2) of the GA Act. An administrator may apply for directions from the Tribunal per s 74 of the GA Act. Therefore, following Public Guardian v Guardianship and Administration Board [2011] TASSC 31 at [29] where Blow J held:
Those cases [referred to in par 26 and 28 of the decision] related to questions as to when a court should, not could, exercise its powers. However they illustrate the proposition that statutory powers to give directions are generally conferred with a view to their being used only in unusual situations, involving real doubt or difficulty. That suggests the statutory provisions empowering the Board to give directions and advice to guardians and administrators, including s 31(4), were intended to be invoked when directions or advice were desirable in unusual situations of doubt or difficulty, rather than for the purpose of exercising control in relation to routine guardianship matters.
The Tribunal is of the view that it should proceed with caution before interfering in the daytoday management by the administrator of NMG's estate, but that it is more likely to consider a direction when sought by the administrator of NMG's estate which even then may or may not be given (see s 74 of the GA Act).
In conclusion, as a creditor of NMG's estate, NMG's lawyers may seek payment from the administrator of NMG's estate and if required seek to take action for recovery of the debt in the same way as any other creditor.
For these reasons the Tribunal must dismiss the application made by NMG's lawyers seeking an order under s 71 or s 72 of the GA directing or authorising NMG's administrator to pay their legal costs in representing NMG in these proceedings.

Conclusion

For the reasons set out above, the Tribunal concludes that MG's reasonable costs of the proceedings which should be awarded is in the amount of $30,000 under s 16(4) of the GA Act. The Tribunal will order that that amount is to be paid to MG by or out of the assets of NMG's estate by 28 February 2020.
Finally, the application by NMG's lawyers seeking an order under s 71 or s 72 of the GA Act or any other such section as may be appropriate under the GA Act, is dismissed because NMG's lawyers are not a party to these proceedings.

Orders

The Tribunal orders:
1.Pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) costs relative to these proceedings in the sum of $30,000 are to be paid to MG by or out of the estate of NMG by 28 February 2020.
2.The application by NMG's lawyers seeking an order under s 71 or s 72 or such other section as may be appropriate of the Guardianship and Administration Act 1990 (WA) is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
3 FEBRUARY 2020