NMG and MG

Case [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

  1. 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].

  2. 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…

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AGLC
NMG and MG [2020] WASAT 19
Case
[2020] WASAT 19
Decision Date

CaseChat Overview and Summary

This case involved a dispute between NMG, represented by their administrator, and MG, who was a creditor of NMG's estate. The case was heard by the Administrative Appeals Division of the State Administrative Tribunal of Western Australia. The primary issue was whether the court had the power to order that the legal costs incurred by NMG's administrators in the proceedings be paid by or out of the assets of NMG's estate. A secondary issue was whether NMG's lawyers had standing to make an application under the Guardianship and Administration Act 1990 (WA).

The Tribunal found that while it had the power to make directions in respect of administration orders, such powers were generally intended to be invoked in unusual situations of doubt or difficulty. The Tribunal noted that it should proceed with caution before interfering in the day-to-day management of NMG's estate by the administrator. However, the Tribunal concluded that it would consider a direction when sought by the administrator, but it may or may not be given. Ultimately, the Tribunal dismissed the application made by NMG's lawyers seeking an order under s 71 or s 72 of the Guardianship and Administration Act 1990 (WA) directing or authorising NMG's administrator to pay their legal costs in representing NMG in these proceedings. The Tribunal also found that MG's reasonable costs of the proceedings which should be awarded was in the amount of $30,000 under s 16(4) of the Guardianship and Administration Act 1990 (WA) and ordered that that amount be paid by or out of the assets of NMG's estate by 28 February 2020.

The final orders made by the Tribunal were that the application by NMG's lawyers seeking an order under s 71 or s 72 of the Guardianship and Administration Act 1990 (WA) or any other such section as may be appropriate under the Guardianship and Administration Act 1990 (WA) be dismissed because NMG's lawyers were not a party to these proceedings. Additionally, the Tribunal ordered that the amount of $30,000 be paid to MG by or out of the assets of NMG's estate by 28 February 2020.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.