PHQ and LPQ
[2015] WASAT 5
•9 FEBRUARY 2015
PHQ and LPQ [2015] WASAT 5
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 5 | |
| STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) | |||
| Case No: | GAA:3900/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS C WALLACE (MEMBER) | 9/02/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Partial costs awarded to applicant | ||
| B | |||
| PDF Version |
| Parties: | PHQ LPQ |
Catchwords: | Guardianship and administration Application for guardianship and administration lacking in substance Application for costs under s 87 of the State Administrative Tribunal Act 2004 (WA) Exceptional circumstances Discretion to award costs Partial costs awarded to applicant |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b), s 64(1)(a), s 97(1), s 112(4) Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA) State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2) |
Case References: | Marvelle Investments Pty Ltd and Argyle Holding Pty Ltd [2010] WASAT 125(S) Medical Board of Western Australia and Kyi [2009] WASAT 22 Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 PJC and RJC [2008] WASAT 224 |
Summary | An 83-year-old woman made an application for costs against her daughter pertaining to legal costs incurred by the mother in relation to the guardianship and administration proceedings held between 15 September 2014 and 14 November 2014 which totalled $36,950.90.,The daughter, who had become estranged from her mother, and whose relationship with her mother had significantly deteriorated in early 2014, had alleged that her mother had dementia and made applications to the Tribunal seeking an appointment of a guardian and administrator for her under the Guardianship and Administration Act 1990 (WA)., The Tribunal determined on the evidence before it that the mother had sufficient cognitive capacity to manage her own affairs and subsequently dismissed the daughter's applications for guardianship and administration on the basis that they lacked substance.,Under s 87 of the State Administrative Tribunal Act 2004 (WA), the starting position is that each party bears its own costs in respect of all proceedings and no party is responsible for legal or other costs incurred by another party. However, there is a discretion to award costs in certain circumstances.,In this particular application for costs, the Tribunal gave consideration to a number of exceptional circumstances which existed during the guardianship and administration proceedings.,The Tribunal determined that the respondent, on or about 16 October 2014, should have withdrawn her applications and that it was unreasonable to continue with the proceedings beyond that date, as the applications were without substance. This meant that the applicant incurred costs which ordinarily would not have been incurred in other matters of this nature. In addition, in the Tribunal's view, the costs were higher than those ordinarily awarded in matters of this nature, as a direct result of the respondent's conduct in filing voluminous, irrelevant material in the proceedings and due to her pursing the applications partly for an ulterior motive which unnecessarily placed the applicant's behaviour and conduct in question.,The Tribunal awarded partial legal costs incurred by the applicant in the period after 17 October 2014 and up to and including the final hearing on 7 November 2014 which totalled $16,691.10. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) CITATION : PHQ and LPQ [2015] WASAT 5 MEMBER : MS C WALLACE (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 9 FEBRUARY 2015 FILE NO/S : GAA 3900 of 2014
- GAA 3903 of 2014
- Applicant
AND
LPQ
Respondent
Catchwords:
Guardianship and administration - Application for guardianship and administration lacking in substance - Application for costs under s 87 of the State Administrative Tribunal Act 2004 (WA) - Exceptional circumstances - Discretion to award costs - Partial costs awarded to applicant
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b), s 64(1)(a), s 97(1), s 112(4)
Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2)
Result:
Partial costs awarded to applicant
Summary of Tribunal's decision:
An 83-year-old woman made an application for costs against her daughter pertaining to legal costs incurred by the mother in relation to the guardianship and administration proceedings held between 15 September 2014 and 14 November 2014 which totalled $36,950.90.
The daughter, who had become estranged from her mother, and whose relationship with her mother had significantly deteriorated in early 2014, had alleged that her mother had dementia and made applications to the Tribunal seeking an appointment of a guardian and administrator for her under the Guardianship and Administration Act 1990 (WA).
The Tribunal determined on the evidence before it that the mother had sufficient cognitive capacity to manage her own affairs and subsequently dismissed the daughter's applications for guardianship and administration on the basis that they lacked substance.
Under s 87 of the State Administrative Tribunal Act 2004 (WA), the starting position is that each party bears its own costs in respect of all proceedings and no party is responsible for legal or other costs incurred by another party. However, there is a discretion to award costs in certain circumstances.
In this particular application for costs, the Tribunal gave consideration to a number of exceptional circumstances which existed during the guardianship and administration proceedings.
The Tribunal determined that the respondent, on or about 16 October 2014, should have withdrawn her applications and that it was unreasonable to continue with the proceedings beyond that date, as the applications were without substance. This meant that the applicant incurred costs which ordinarily would not have been incurred in other matters of this nature. In addition, in the Tribunal's view, the costs were higher than those ordinarily awarded in matters of this nature, as a direct result of the respondent's conduct in filing voluminous, irrelevant material in the proceedings and due to her pursing the applications partly for an ulterior motive which unnecessarily placed the applicant's behaviour and conduct in question.
The Tribunal awarded partial legal costs incurred by the applicant in the period after 17 October 2014 and up to and including the final hearing on 7 November 2014 which totalled $16,691.10.
Category: B
Representation:
Counsel:
Applicant : Mr M Bennett
Respondent : In person
Solicitors:
Applicant : Bennett + Co
Respondent : N/A
Case(s) referred to in decision(s):
Marvelle Investments Pty Ltd and Argyle Holding Pty Ltd [2010] WASAT 125(S)
Medical Board of Western Australia and Kyi [2009] WASAT 22
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
PJC and RJC [2008] WASAT 224
Background
1 These reasons relate to an application made on behalf of PHQ seeking an order for costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
2 PHQ has made the application for costs against her daughter LPQ who had made applications seeking an appointment of a guardian and administrator for PHQ under the Guardianship and Administration Act 1990 (WA) (GA Act).
3 The Tribunal dismissed the applications for guardianship and administration on 7 November 2014 on the basis that they lacked substance. Counsel representing PHQ informed the Tribunal on that occasion that his client wished to make an application for costs and programming orders were made allowing the application and submissions in respect of it to be filed. The application itself together with supporting submissions was received by the Tribunal on 14 November 2014 and submissions in response were received by the Tribunal on 4 December 2014. Although further submissions were received by the Tribunal in January 2015 from each of the parties, they were not read by the presiding member and so no regard has been given to that material. No orders were made allowing such further submissions to be made, and in the circumstances it was unnecessary for the presiding member to read them.
The applications for guardianship and administration
4 On 15 September 2014, LPQ commenced guardianship and administration proceedings concerning her mother, PHQ. The application contained an allegation that PHQ had dementia. The support for the allegations as evidenced in the application, appeared to be that PHQ had initiated two failed violence restraining order applications against LPQ during the course of which LPQ alleged that her mother had given five different versions of the incident. The implication therefore being that PHQ was confused or perhaps was evidencing impaired memory. On page 18 of the application where the applicant is asked whether the application is urgent, LPQ indicated that it was, and as to the reason for urgency, noted 'blocked from entering my legal office'.
5 PHQ is 83 years of age and has five adult children. PHQ was a general medical practitioner from 1956 to 2011 and formed a medical centre with her husband. Following her husband's death in 1975, PHQ continued to manage the practice for 36 years and raised their five children. One of PHQ's daughters, REO, also a general medical practitioner, joined the medical practice in 1985. In the affidavit material filed with the Tribunal by PHQ and four of her children, it appeared clear to the Tribunal that PHQ maintained a close relationship with each of her children but had become estranged from her daughter LPQ. Although LPQ asserted that her mother was being 'bullied' by her daughter, REO, this was strongly refuted in the affidavit material.
6 The affidavit of PHQ sworn on 31 October 2014 and filed with the Tribunal on 3 November 2014, evidenced a history of financial assistance by PHQ to LPQ over many years, including an arrangement whereby LPQ was given an office at the medical centre from which she conducted her legal practice over a period of about 15 years. LPQ did not pay rent in respect of the office space, although in submissions filed by her with the Tribunal, she asserted that she provided her mother free legal services in exchange for the legal office.
7 What appeared to be clear to the Tribunal, on the basis of the material filed with it, being not only the affidavit material to which reference has already been made, but also the voluminous documents which were filed by the applicant herself, was that LPQ's relationship with her mother deteriorated significantly in early 2014 and could only be described as volatile and hostile. Material filed with the Tribunal by LPQ, totalling approximately 35 documents as well as a number of DVDs, included material filed in unrelated proceedings including criminal proceedings initiated by PHQ against LPQ alleging aggravated common assault, two subsequent violence restraining order proceedings initiated by PHQ against LPQ, as well as an application initiated by LPQ in the Children's Court seeking access to her son JQ who was, at that time, in the custody of PHQ. In the midst of all this agitation and litigation PHQ evicted LPQ from her law office in the medical centre on 15 September 2014. Coincidently, on that same date, LPQ initiated the guardianship and administration proceeding in respect of PHQ.
8 As previously stated, the documents filed with the Tribunal by LPQ, presumably to support her application, were voluminous and in the main related to the complaint made by PHQ against LPQ in respect of the alleged aggravated common assault. None of the material filed by LPQ was remotely relevant to the issues to be decided by the Tribunal, the central question being whether PHQ had sufficient cognitive capacity to manage her own affairs.
9 Following the filing of the guardianship and administration application the Tribunal received various email correspondence from LPQ insisting that the matter be heard on an urgent basis. In the first of such correspondence, dated 16 September 2014, LPQ informed the Tribunal that:
The matter is urgent as all my bills are in my office, so I cannot pay them further I cannot access my legal files. This puts me in a position of crisis. The application is urgent. I was assaulted by a security guard employed to stop me entering today.
10 A further email was received by the Tribunal on 24 September 2014 in a similar vein informing the Tribunal:
At present I cannot access my office or files. I am suffering loss of business as they will not answer my telephone all directed by my sister [REO]. I cannot pay my power bill or any other bill. I need the matter heard urgently so further misconduct cannot occur.
11 Another email was received by the Tribunal on 26 September 2014 from LPQ still pressing for an urgent hearing and informing the Tribunal:
At present I cannot access my office as a security guard my mother knows nothing about is blocking my way. I cannot pay my phone bill, power bill, gas bill, internet bill etc.
12 The 26 September 2014 email attached a copy of a letter sent by LPQ to her mother's legal counsel which notes, amongst other things, the following:
I have made an application to seek guardianship and administration order for her [being a reference to PHQ]. The situation is that I have significant goodwill attached to the premises and by my advertising campaign for years in local newspapers. I was increasingly upset by the fact I paid for my office but [A]was not answering my phone on instruction from [REO]. This has caused me a loss of business and the attempts to stop me entering my office further has caused me financial loss. … My late brother in law [PO] proposed marriage to me last November and told [REO] and their eldest daughter [L] of his plans. I did not accept. This has compounded the problems with [REO] and her family. She is understandably unhappy that her husband wished to divorce her and marry me. … If the normal office relationship is not immediately restored without problems I will have no option but to instruct a large law firm I have already got advice from to commence legal proceedings against your client [being PHQ] and [REO]. Further pursue [sic] the guardianship and administration applications which are clearly needed at this time.
13 LPQ was informed a number of times by staff of the Tribunal of the presiding member's decision that the matter was not urgent and would not be listed urgently for final hearing. Given that LPQ continued to press the matter, the Executive Officer of the Tribunal wrote to LPQ in respect of the matter on 26 September 2014 reinforcing the presiding member's view on the matters raised by LPQ and informing her that the decision as to urgency must be addressed from the perspective of the proposed represented person's best interests, and not those of the applicant. The letter noted that the presiding member's view was that LPQ's main concern was her own circumstances in respect of gaining entry to her law office and was unrelated to the proposed represented person's circumstances.
14 The Tribunal issued directions orders on 22 September 2014 which were provided to LPQ and all interested parties to the proceedings. Order 8, made on that date, referred the applications to the Public Advocate pursuant to s 97(1) of the GA Act for investigation and report to the Tribunal prior to the hearing on various matters, including whether PHQ needed a guardian or administrator. Prior to the hearing, the Tribunal received a written report from an investigator of the Office of the Public Advocate dated 4 November 2014. The report was detailed and had been prepared after the investigating officer had spoken to all interested parties, including LPQ. The report concluded that PHQ had full capacity to manage her own affairs and that there was no basis on which the Tribunal could or ought to make guardianship or administration orders.
15 At the time of preparing the report, the Public Advocate investigator had access to the medical evidence filed with the Tribunal comprising a Doctor Guide prepared by Dr S, a neurologist, dated 27 September 2014, who has known PHQ for over 20 years and which attached a letter dated 20 August 2014 in respect of a cognitive assessment Dr S undertook in relation to PHQ on 20 August 2014, and a letter dated 1 November 2014 in respect of cognitive assessments undertaken in respect of PHQ on 14 February and 10 October 2014 and sent to the Tribunal by Dr C, a specialist geriatrician. Both specialist reports reached the same conclusion in relation to PHQ's cognitive capacity, that is, that PHQ did not have a diagnosis of a mental disability nor any impairment of her cognitive ability or mental function. Both assessed PHQ as being capable of making reasonable decisions in relation to both guardianship and administration decision-making areas, as well as capacity to execute an enduring power of attorney (EPA).
16 Worthy of further mention are the detailed affidavits filed on behalf of PHQ. That evidentiary material illustrates that PHQ is an accomplished and very active member of her community and appears to be well regarded and respected by four of her five children, none of whom hold the same concerns as those expressed by LPQ in these proceedings. Also significant to the proceedings is that attached to the affidavit of one of PHQ's daughters, CMM, dated 4 November 2014, is an EPA dated 7 February 2014 executed by PHQ in favour of CMM and her son MJQ. In addition, attached to the affidavit of PHQ's daughter, EO, dated 4 November 2014, is an Enduring Power of Guardianship executed by PHQ, also dated 7 February 2014 and appointing REQ and PHQ's other daughter, JAQ, as joint enduring guardians. The existence of these documents is significant in guardianship and administration proceedings because pursuant to s 4 of the GA Act, guardianship and administration orders cannot be made, even in circumstances where the proposed represented person is found to lack capacity, if a less restrictive alternative exists. EPAs and Enduring Powers of Guardianship are examples of a less restrictive option.
17 Before the Tribunal proceeds to briefly touch on the conduct of the hearing itself, it is important to note what information LPQ was aware of prior to the hearing of her applications. In this regard, LPQ made an application seeking access to documents on the Tribunal file, pursuant to s 112(4) of the GA Act, and was granted access on 16 October 2014. It seems that the prime motivation for making the application, as evidenced in the application itself, was the fact that LPQ had failed to maintain copies of all the documents which she herself had filed with the Tribunal, and therefore she applied to obtain copies of her own documents. In addition, the application was wide enough to include documents which had, as at that date, been filed by PHQ. The documents filed on behalf of PHQ were minimal at that time but did include the letter prepared by Dr S dated 20 August 2014 referring to his cognitive assessment of PHQ. LPQ was given access to that document by order of the Tribunal on 16 October 2014. No further applications were made by LPQ for access to documents filed with the Tribunal subsequent to her initial application. This is despite the fact that, at the very least, LPQ was aware that a report would be filed with the Tribunal by the Office of the Public Advocate prior to the hearing date, as ordered by the Tribunal on 22 September 2014.
18 At the final hearing of the matter on 7 November 2014, the Tribunal had arranged for Dr S to attend the hearing by telephone so as to afford LPQ the opportunity, if she so wished, to cross-examine Dr S on his evidence. Prior to hearing from Dr S, the presiding member informed the parties of the material findings of fact which would need to be made in order for the Tribunal to consider making guardianship or administration orders in respect of PHQ and informed the parties that there was a presumption of capacity in favour of PHQ which would need to be rebutted by medical evidence (s 4(3) of the GA Act). The presiding member then also summarised for the benefit of the parties the medical evidence filed with the Tribunal in relation to the preliminary threshold question of capacity and informed the parties, that on the basis of that evidence it appeared that there was no basis on which the Tribunal could consider the appointment of a guardian or administrator for PHQ. The Tribunal therefore invited LPQ to consider withdrawing her applications.
19 LPQ declined to withdraw the applications and sought to crossexamine Dr S on his evidence. In cross-examination, Dr S maintained his opinion that PHQ had full capacity and did not suffer from a mental disability.
20 Counsel for PHQ submitted that the application for guardianship and administration was lacking in substance and was motivated by an improper purpose, that is, motivated by LPQ's desire to re-enter her legal office following her eviction.
The Tribunal's decision on the applications for administration and guardianship
21 Under the GA Act, before the Tribunal can consider the need for an administrator, it must first be satisfied that the person for whom the application has been made is unable, due to a mental disability, to make reasonable judgments in respect of matters relating to all or part of their estate (s 64(1)(a) of the GA Act). 'Mental disability' is defined to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia (s 3 of the GA Act), but is not limited to those named disabilities.
22 In respect of guardianship, the Tribunal must first be satisfied that the person for whom the application is made is incapable of looking after their own health and safety, or is incapable of making reasonable judgments in respect of matters relating to their person, or, alternatively, is in need of oversight, care or control in the interest of their own health and safety or for the protection of others (s 43(1)(b) of the GA Act).
23 As previously mentioned, there is a presumption in favour of a person having capacity which must be displaced on the evidence presented to the Tribunal (s 4(3) of the GA Act).
24 In this matter the Tribunal found that, based on the consistent and unambiguous specialist medical evidence before it, it could not be satisfied that the presumption of capacity had been displaced and therefore dismissed both applications.
The claim for costs
25 An application seeking costs was made on behalf of PHQ on 14 November 2014 which attached a copy of the legal costs agreement entered into between PHQ and her lawyers, as well as a bill of costs which provided that the costs incurred by PHQ in relation to the guardianship and administration proceedings between 15 September 2014 and 14 November 2014 totalled $36,950.90.
26 Although the submissions filed on behalf of PHQ acknowledged that the starting position of s 87 of the SAT Act is that parties are to bear their own costs, the submissions assert that in the particular circumstances of the proceedings it is appropriate for the Tribunal to depart from that position. The submissions state that this is appropriate because of the exceptional circumstances which exist in the proceedings including:
• The applicant brought and maintained the applications unreasonably and for a collateral purpose.
• Even when LPQ became aware that the medical evidence was such that her mother had full capacity, she continued to pursue the proceedings knowing that they were untenable.
• Given the seriousness of the nature of the proceedings it was appropriate that PHQ be legally represented.
• It ought to be clear to the Tribunal that the proceedings were initiated by LPQ purely due to the alleged 'tenancy dispute' between herself and her mother.
• LPQ could have brought further applications seeking access to documents on the Tribunal file, but did not avail herself of this opportunity and when presented with information by the presiding member at the final hearing as to what relevant information was contained on the Tribunal file, LPQ elected to press the applications in any event.
27 PHQ submits that she ought to recover all of her costs from LPQ in the circumstances. However, if unsuccessful in that contention, then PHQ submits that she ought to be awarded her costs from 16 October 2014, at which time LPQ would have been aware of Dr S's evidence as to the capacity of PHQ.
28 The Tribunal received a curious document from LPQ on 4 December 2014 which, although commenced by stating 'I am unable to file any submissions at the Tribunal due to heavy trial commitments', went on to state 'I make the following submissions'. Contained within that email correspondence are the following responsive submissions:
• LPQ maintains that PHQ has dementia and does not accept the contrary medical evidence. Indeed, LPQ alleges that Dr S had a 'vested interest in giving his opinion, as he receives much work from the medical practice'.
• Although LPQ alleges that there is a tenancy dispute between herself and PHQ, she maintains that the catalyst for the guardianship and administration applications is PHQ's alleged decline in mental health.
• LPQ considers her mother's solicitors' costs excessive and submits that there was no need to prepare any of the affidavits from her siblings.
• LPQ submits that her mother is very wealthy and in a position to pay her own solicitors' costs in any event.
• The purpose of the Tribunal, being a no cost jurisdiction, is to resolve disputes of this nature without fear or favour but to ascertain the mental health of parties.
• LPQ was evicted from her law office by PHQ and therefore lost all of her clients and has no funds and therefore is not in a position to pay any legal costs.
The discretion as to costs
29 The starting position in relation to costs in this Tribunal in respect of all proceedings is that each party bears its own costs and that no party is responsible for legal or other costs incurred by another party (s 87(1) of the SAT Act). However, s 87(2) of the SAT Act confers a discretion upon the Tribunal to make an order for the payment by a party of the costs of another party.
30 The general principles applied by the Tribunal in relation to the question as to whether costs ought to be awarded under s 87(2), are usefully set out in Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73] [74] (Kyi):
… If a party has conducted 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, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful … .
Thus the Tribunal's discretion to award costs extends to ordering the payment of costs incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings … it will usually be necessary to show that the conduct of the party was unreasonable and unfairly caused the increased costs.
31 In PJC and RJC [2008] WASAT 224, the Tribunal considered the exercise of the discretion to award costs under s 87(2) of the SAT Act in a proceeding brought under the GA Act and, at [57] - [59], stated:
The making of administration and guardianship applications under the GA Act are very intrusive and lead to the exploration of sensitive issues in a person's life. They should not be made lightly.
A fundamental element then, in the task for an applicant, is the need to have a reasonable belief, objectively grounded, that the person for whom protection is sought is no longer capable of managing his or her affairs.
In the case before me, the Tribunal found that the applications for guardianship and administration made by RJC were without merit. Moreover, prior to the hearing, RJC was given notice of the significant medical information then before [the] Tribunal which strongly suggested that the presumption of capacity likely could not, on that information, be displaced in respect of PJC.
32 Effectively therefore, in applications brought under the GA Act, there is a need for applicants to proceed cautiously and to be seen to be making the application with a genuine concern held in good faith for the mental health wellbeing of the proposed represented person. In circumstances where the applicant is made aware of material in clear and unequivocal terms, which reasonably leads to the conclusion that the application is unlikely to succeed, then the expectation of the Tribunal is that the application ought to be withdrawn, unless contrary, probative medical evidence is able to be produced.
33 The Tribunal is likely to consider awarding costs in guardianship and administration applications where it appears that costs were unnecessarily incurred due to the unreasonable actions of the applicant, whether those actions are in pursuing an untenable application, unnecessarily prolonging an application, initiating and pursuing an application for an improper purpose and/or generally acting in a way so as to disadvantage the proposed represented person such that they unnecessarily incur legal and other costs associated with the proceedings.
Should costs be awarded against LPQ?
34 The Tribunal is satisfied that the application for costs made by PHQ should succeed, as it clearly illustrates the factors set out in Kyi as supportive of a decision to exercise the discretion to award costs. The Tribunal holds this view for the following reasons:
• The applications for administration and guardianship were clearly, partly, if not wholly, motivated by the ulterior motive of LPQ to attempt to re-enter her legal office situated at the business premises owned by PHQ. This conclusion can be drawn by the reference to LPQ's urgent need to re-enter her legal office referred to in the application itself and in subsequent correspondence between LPQ and the Tribunal on 16, 24, and 26 September 2014 and her letter sent to PHQ's legal counsel. The letter sent by LPQ to her mother's legal counsel is particularly concerning, as it appears to threaten to pursue the guardianship and administration proceedings unless the 'normal office relationship is not immediately restored'.
• It is difficult to determine whether the applications were made entirely for the ulterior purpose or only in part. However, given the significantly volatile relationship which existed between LPQ and PHQ at the time of the applications (including criminal proceedings, two violence restraining order proceedings and a child custody proceeding), it is not difficult to conclude that they were brought primarily for LPQ's own personal agenda.
• In addition, LPQ also conducted the proceedings in a manner which resulted in PHQ unnecessarily incurring significant legal costs. In this regard, the Tribunal notes that LPQ filed voluminous documents totalling approximately 35, in addition to three DVDs, none of which were remotely probative to the issues to be determined in the proceedings.
• In addition, because LPQ effectively wanted the Tribunal to assess capacity on the basis of alleged unusual behaviour of PHQ, it necessitated the preparation and filing of a number of affidavits on behalf of PHQ to counter those allegations which, in the Tribunal's view, would otherwise not have been considered necessary.
• On 16 October 2014 LPQ was given access to the records of the Tribunal which included the letter from Dr S, containing the results of a cognitive assessment of PHQ, which supported the legal presumption in her favour that she had full capacity. It is the Tribunal's view that from that point of time onwards, LPQ ought to have known that her applications were untenable, unless she could obtain specialist medical evidence contrary to that of Dr S, which she clearly did not have. To allege that the cognitive capacity results were manipulated by Dr S for his own financial gain is completely without foundation and highly improper.
• At the final hearing, when all of the relevant material was summarised for LPQ, and the Tribunal invited her to withdraw her applications, LPQ declined to do so and proceeded with the hearing, despite knowing at that time that clear, unequivocal, specialist medical evidence, not only from Dr S, supported a conclusion that the applications had no substance.
35 In summary, the Tribunal finds that LPQ knew, at the very least on or about 16 October 2014, that her applications were doomed to fail because she had no capacity evidence able to contest the medical assessments before the Tribunal and she decided to pursue her applications in any event. The Tribunal finds it unreasonable for LPQ to continue with the proceedings from that date forward. In addition, the Tribunal also finds that LPQ conducted the proceedings in a way that disadvantaged PHQ and resulted in PHQ unnecessarily incurring significant legal costs above and beyond that which would ordinarily be incurred in a matter of this nature.
36 Although LPQ raised in her submissions the assertion that PHQ is a wealthy woman who can afford the legal costs incurred, and that LPQ does not have the funds to meet a costs order, those matters, assuming that they are true, are irrelevant to the consideration by the Tribunal as to whether a costs order is appropriate.
37 Lastly, although LPQ is correct in her submission that parties should be able to initiate guardianship and administration proceedings without fear of costs orders being made against them, there remains an obligation not to make such applications on a whim, nor to continue them in circumstances where it becomes clear that they are ill-founded and untenable.
38 The Tribunal will now consider the quantum of costs which ought to be awarded.
Quantum of costs to be awarded
39 As already noted, there is a valid costs agreement which has been entered into between PHQ and Bennet+Co. Pursuant to that costs agreement, there were a number of senior practitioners involved in providing legal services to PHQ, in addition to a junior practitioner and two paralegals. However, from a perusal of the bill of costs, it appears that the main solicitors involved in the matter were Mr Bennett, being a very senior practitioner, and Ms Rumble, being a senior associate.
40 Although the Tribunal certainly has misgivings about whether there was any genuine motivation in initiating the applications, it is difficult to find with certainty a complete absence of concern as to the welfare of PHQ on the part of LPQ in commencing her applications. However, the Tribunal's view is that, once access to documents held by the Tribunal was afforded to LPQ on 16 October 2014, which included Dr S's cognitive assessment, that proceeding with the applications past that date was unreasonable. Therefore, the Tribunal's view is that costs ought to be awarded after 16 October 2014, up to and including the final hearing. The costs incurred during that period total $21,415.60.
41 It should be noted that the Tribunal approaches the task of fixing costs in, a broad and relatively robust fashion; in this regard see Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holding Pty Ltd [2010] WASAT 125(S) at [49]. It does not 'tax' or assess costs in the way that courts do.
42 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 this regard, the Tribunal finds that it was appropriate that PHQ be legally represented in the proceedings, given the potential seriousness of the consequences. Also given that PHQ entered into a valid costs agreement with her solicitors, there is no need to have regard to the Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA) which sets out a scale in relation to solicitor and client costs.
43 The Tribunal has considered the legal work undertaken by PHQ's solicitors from 16 October 2014 and, with the exception of the costs incurred in respect of the costs application itself, finds that the work undertaken was reasonable and necessary given the nature and conduct of the proceedings. The only deduction necessary is in relation to the work undertaken to prepare affidavits filed in the proceedings. The Tribunal finds that it was unnecessary for three solicitors to be involved in that task and will therefore only allow the cost of the solicitor with the primary conduct of the matter, being Ms Rumble, in relation to that legal work.
44 In relation to the cost of both the solicitor with the conduct of the matter, and a very senior legal practitioner (acting as counsel) preparing for the final hearing and attending the final hearing, the Tribunal finds that those costs were reasonably incurred. The matter was a most serious one, with the potential outcome being one which may have resulted in removing fundamental decisionmaking rights from PHQ. In the circumstances, it was therefore appropriate that PHQ was represented at the final hearing by both instructing solicitor and counsel. Lastly, the Tribunal also finds that disbursements of $537.60 are reasonable.
45 The Tribunal therefore fixes the costs awarded in the amount of $16,691.10.
46 Although these costs are higher than those ordinarily awarded in matters of this nature, it is the Tribunal's view that this is as a direct result of the conduct of LPQ in filing voluminous irrelevant material in the proceedings and placing PHQ's behaviour and conduct unnecessarily in question. This matter is also exceptional given the clear evidence before the Tribunal that the proceedings were, initiated (in large part) and pursued due to an ulterior motive. Such conduct, in the Tribunal's view, resulted in PHQ incurring costs which ordinarily would not be incurred in other matters of this nature.
Order
The Tribunal therefore makes the following order:
1. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), LPQ shall pay the costs and disbursements incurred by PHQ in this proceeding fixed in the amount of $16,691.10 within 28 days.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS C WALLACE, MEMBER
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