Perpetual Trustees and BW
[2008] WASAT 146
•26 JUNE 2008
PERPETUAL TRUSTEES and BW [2008] WASAT 146
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 146 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2394/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS D DEAN (MEMBER) | 26/06/08 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for costs dismissed | ||
| B | |||
| PDF Version |
| Parties: | PERPETUAL TRUSTEES BW |
Catchwords: | Administration order made Application for legal costs to be paid out of the estate of the represented person under s 16(4) of the Guardianship and Administration Act 1990 (WA) Principle that parties bear their own costs That principle may be overturned when legal representation is necessary for the Tribunal to make a decision in the best interests of the represented person. |
Legislation: | Guardianship and Administration Act 1990 (WA), s 16, s 16(4) |
Case References: | BW [2008] WASAT 82 LC and JS [2007] WASAT 127 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PERPETUAL TRUSTEES and BW [2008] WASAT 146 MEMBER : MS D DEAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 26 JUNE 2008 FILE NO/S : GAA 2394 of 2007 BETWEEN : PERPETUAL TRUSTEES
- Applicant
AND
BW
Represented Person
Catchwords:
Administration order made - Application for legal costs to be paid out of the estate of the represented person under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Principle that parties bear their own costs - That principle may be overturned when legal representation is necessary for the Tribunal to make a decision in the best interests of the represented person.
Legislation:
Guardianship and Administration Act 1990 (WA), s 16, s 16(4)
(Page 2)
Result:
Application for costs dismissed
Category: B
Representation:
Counsel:
Applicant : Mark Fatharly
Represented Person : Self-represented
Solicitors:
Applicant : Kott Gunning
Represented Person : Self-represented
Case(s) referred to in decision(s):
BW [2008] WASAT 82
LC and JS [2007] WASAT 127
(Page 3)
Summary of Tribunal’s decision
1 This was an application for costs relating to proceedings by which administration and guardianship orders were made by the Tribunal in relation to BW, the represented person. The applications for guardianship and administration were heard over two hearings both of which were attended by the subsequently appointed administrator, Perpetual Trustees, and the solicitor representing Perpetual Trustees.
2 Subsequent to the hearings and the written decision being provided, (see BW[2008] WASAT 82), Perpetual Trustees sought an order for costs in relation to the hearings, to be paid out of the estate of the represented person.
3 The Tribunal found that there was nothing about the conduct of, or preparation for, either of the two hearings, to suggest that legal representation was necessary to ensure the best outcome for the represented person.
4 The application for costs was dismissed.
Background
5 This application relates to the legal costs of Perpetual Trustees, the appointed administrator in the matter of BW. This matter was heard over two hearings in January and February 2008.
6 BW[2008] WASAT 82, outlines the reasons for the decision of the Tribunal in relation to the applications for administration and guardianship and also applications made by two other parties for costs in relation to the hearing of those applications.
Application
7 On 29 April 2008, Perpetual Trustees made application to the Tribunal seeking reimbursement of $5,312.89 for legal costs and disbursements relating to the hearing of the applications for administration and guardianship in respect of BW, the represented person. This application was made under s 16(4) of the Guardianship and Administration Act 1990 (WA), (GA Act) seeking that the costs be met out of the estate of the represented person.
(Page 4)
8 The applicant states that Perpetual Trustees was proposed as administrator "and as such it was necessary and appropriate to attend the hearings on 16 January and 27 February 2008 relating to the need for orders to be made under the GA Act, to obtain information relating to costs which would be charged by the Public Trustee to compare with the charges of Perpetual Trustees, and to assist the Tribunal in arriving at a decision." … "Work undertaken on behalf of Perpetual Trustees has been charged at $375 per hour plus GST for the services of Mr Mark Fatharly (a partner)."
9 The applicant further states that costs had been incurred "in relation to attempting to clarify issues about capacity, communicating with the other parties and solicitors relating to the application, seeking the administration orders, including providing advice and preparation of submissions".
The legislation
10 The provision relating to costs to be paid out of the estate of the represented person is found in s 16 of the GA Act which provides:
(2) Where a person gives evidence or information -
(a) at the instigation of the State Administrative Tribunal;or
(b) at the instigation of a party and the State Administrative Tribunal considers that the circumstances are exceptional,
the Tribunal may approve payment to him of such amount as it thinks fit in or towards defraying any costs and expenses incurred by him in doing so, and an amount so approved shall be paid from moneys appropriated by Parliament for that purpose.
[(3) repealed]
(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.
(Page 5)
- (5) Nothing in this section limits any other power of the State Administrative Tribunal under the State Administrative Tribunal Act 2004."
Findings and reasons
11 It is the right of any party to seek legal advice and representation in proceedings before the Tribunal, but, as the applicant rightly points out in his application, ultimately the decision to award costs is at the discretion of the Tribunal.
12 In respect of the applicant's submission that legal representation was required "to clarify issues about capacity, communicating with the other parties and solicitors relating to the application, seeking the administration orders, including advice and preparation of submissions", proceedings before the Tribunal are conducted with as little formality as practicable and this, along with the Tribunal's inquisitorial role which allows it to gather information in any way it sees fit, generally obviates the necessity for legal representation. Given the nature of the conduct of proceedings before the Tribunal, it will only award costs in exceptional or unusual cases.
13 Consideration of the question of what constitutes "exceptional or unusual circumstances" is detailed in LC and JS [2007] WASAT 127, referred to by the applicant in his application. In that case the Tribunal described the types of situations where it might choose to exercise its discretion when making a determination in respect to an application for legal costs. These types of situations occur when:
• 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;
14 In this case the application was made by the daughter of the represented person who had her own legal representation.
• 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;
15 There were no allegations along these lines.
(Page 6)
- • 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;
16 In relation to both these situations I find that, although there was a level of conflict between some parties it was not sufficient to impact on the ability of parties, particularly Perpetual Trustees, to provide reasoned and considered information relevant to the proceedings without legal representation.
• the application is contentious and unique e.g. sterilization; and
• the application raises a special point of law.
17 Neither of the latter two situations applies to this application.
Conclusion
18 As outlined in the reasons for decision in respect of the hearing of the applications for guardianship and administration for BW, I accept that it was not unreasonable for some parties to seek legal advice in this case: BW [2008]WASAT 82. As stated previously, proceedings in the Tribunal are conducted with as little formality as possible and generally do not warrant or necessitate the need for legal representation.
19 I accept that, given the proposal to appoint Perpetual Trustees they have the right to legal representation, but I do not accept that it was necessary, or necessarily in the best interests of the represented person, for Perpetual Trustees to have legal representation in presenting their case for taking on the role of administrator of the estate of the represented person.
20 Given the inquisitorial nature of the Tribunal processes and the availability of the Public Advocate in an investigatory role if required, the Tribunal is, in most cases, able without input from legal representatives of the parties, to gather the information required to make a decision in the best interests of the represented person. This case was no different from most others in that respect.
(Page 7)
21 With regard to the request by the Tribunal for information in relation to the fees of both the Public Trustee and Perpetual Trustees, it should have been a relatively simple procedure for Perpetual Trustees to procure a list of fees from the Public Trustee and to provide a comparison of these with those of Perpetual Trustees to the Tribunal. I do not accept that this warranted legal involvement.
22 The Tribunal has a statutory obligation to act in the best interests of the represented person. I am not satisfied that it is in the best interests of the represented person for his estate to bear the cost of the legal representation of Perpetual Trustees at the hearings, for communicating with other parties or for the preparation of written material in relation to the hearings.
23 In my opinion there was nothing about the conduct of either of the hearings to suggest that legal representation was necessary to ensure the best outcome for the represented person.
Order
The application by Perpetual Trustees for costs pursuant to s 16(4) of the GA Act is dismissed.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER