RC and LP and AC
[2007] WASAT 171
•27 JUNE 2007
RC and LP and AC [2007] WASAT 171
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 171 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:590/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS D DEAN (MEMBER) | 27/06/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | The application for the award of costs is dismissed except for the cost of the transcripts which is to be paid out of the estate of the represented person | ||
| B | |||
| PDF Version |
| Parties: | RC and LP AC |
Catchwords: | Administration Costs – Application for legal costs to be paid from the estate of the represented person under s 16 (4) of the Guardianship and Administration Act 1990 (WA) – Whether parties should bear their own costs – Whether cost of transcripts should be paid from the estate of the represented person |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 16, s 16(4) State Administrative Tribunal Act 2004, s 5, s 87 |
Case References: | GD and AD [2005] WASAT 203 LC and JS [2007] WASAT 127 RC and LP and AC [2006] WASAT 370 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RC and LP and AC [2007] WASAT 171 MEMBER : MS D DEAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 27 JUNE 2007 FILE NO/S : GAA 590 of 2006 BETWEEN : RC and LP
- Applicants
AND
AC
Represented Person
Catchwords:
Administration - Costs – Application for legal costs to be paid from the estate of the represented person under s 16 (4) of the Guardianship and Administration Act 1990 (WA) – Whether parties should bear their own costs – Whether cost of transcripts should be paid from the estate of the represented person
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 16, s 16(4)
State Administrative Tribunal Act 2004, s 5, s 87
(Page 2)
Result:
The application for the award of costs is dismissed except for the cost of the transcripts which is to be paid out of the estate of the represented person
Category: B
Representation:
Counsel:
Applicants : Mr G Papamihail
Represented Person : Self-represented
Solicitors:
Applicants : George Papamihail Barristers & Solicitors
Represented Person : Self-represented
Case(s) referred to in decision(s):
GD and AD [2005] WASAT 203
LC and JS [2007] WASAT 127
RC and LP and AC [2006] WASAT 370
(Page 3)
Summary of Tribunal's decision
1 On 28 March 2006, RC and LP applied to the Tribunal for an administration order in respect of their father AC. On 9 October 2006, the Tribunal revoked the enduring power of attorney executed by AC by which he appointed his son KC his attorney. On the same date, the Tribunal appointed the Public Trustee plenary administrator of the estate of AC. The appointment was for a period of five years. The details of the application and the reasons for the decision of the Tribunal are reported in RC and LP and AC[2006] WASAT 370.
2 Subsequent to the decision in relation to the application for administration, RC, one of the applicants in that matter, made an application to the Tribunal for reimbursement of legal and related costs he incurred in relation to the application to be paid from the estate of his father AC, the represented person.
3 The Tribunal found that there was no compelling reason for the costs incurred by the applicant to be paid out of the estate of AC. It dismissed the application, other than the reimbursement of the cost of transcripts for the hearings. The Tribunal ordered the cost of the transcripts to be paid out of the estate of the represented person.
Background
4 On 28 March 2006, RC and LP made an application for the appointment of an administrator of the estate of their father, AC. On 9 October 2006, the Tribunal revoked the enduring power of attorney executed by AC by which he appointed his son KC his attorney. On the same date, the Tribunal appointed the Public Trustee plenary administrator of the estate of AC. The appointment was for a period of five years. RC and LP and AC[2006] WASAT 370 outlines the details and reasons for the Tribunal's decision in relation to that application.
5 This application relates to the costs incurred by RC, son of the represented person, in relation to the hearing of the application for an administrator for AC. The costs were incurred for services provided by Downings Legal and George Papamihail Barristers and Solicitors, and also for the cost of transcripts of the three Tribunal hearings.
6 Downings Legal provided services in relation to a will and enduring power of attorney executed by AC prior to the commencement of the proceedings on 9 May 2006. George Papamihail Barristers and Solicitors
(Page 4)
- represented RC and his sister, LP, at the second and third hearings of the application for administration.
7 A copy of a receipt for $1500, dated 30 October 2006, from Downings Legal has been provided to the Tribunal and refers to a "will and EPA" of the represented person with no further details provided.
8 Copies of invoices from George Papamihail have been provided to the Tribunal and refer to "[t]aking instruction, attendance with client [various], telephone attendances [various], peruse and consider various documents, peruse and consider correspondence … " for a total of 42.9 hours plus "letters, telephone calls and postage" to a total cost of $12 833.80.
9 RC is claiming $997.95 for three transcripts purchased from the Tribunal. Tribunal records show that the total cost for these transcripts was $985.05; an amount of $12.90 had previously been refunded.
10 In his application, RC states "these expenses were incurred for legal advice as to how to stop the misappropriation of my father's financial affairs … I was advised by the solicitor to take the matter before SATS [sic] … "
Legislation
11 The provisions relating to costs in relation to matters before the Tribunal are found in the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the Guardianship and Administration Act 1990 (WA) (GA Act). If the two Acts are in conflict the GA Act,the enabling act, prevails (s 5 of the SAT Act).
Section 87 of the SAT Act states:
"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.
(Page 5)
- (3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to:
(a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
(5) The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6) 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.
12 Section 16 of the GA Act states:
"16. Costs
[(1) repealed]
(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.
(5) Nothing in this section limits any other power of the State Administrative Tribunal under the State Administrative Tribunal Act 2004 [(WA)]."
Relevant cases
13 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. Proceedings before the Tribunal are conducted with as little formality as practicable and the Tribunal has an inquisitorial role allowing it to gather information in any way it sees fit. Given the nature of the conduct of proceedings before the Tribunal, it will only award costs in exceptional or unusual cases.
14 In GD and AD [2005] WASAT 203,the Tribunal decided not to approve the payment of legal costs from the estate of the represented person because it found that the "good intentions" of the parties seeking costs was insufficient reason to make an order. In exercising its discretion, the Tribunal considered the following par [69]:
• the parties seeking costs had "attended a previous Tribunal hearing and therefore … understood that
- hearings are conducted in an informal and non-threatening manner generally without legal representation";
- • the question of the represented person's capacity was not at issue;
• there was no "real complexity" in the represented person's estate; and
• the conflict between the parties seeking a costs order (two brothers) went beyond matters dealt with at the hearing.
15 In making its decision not to award costs in LC and JS[2007] WASAT 127 the Tribunal outlined a number of areas for consideration when making determinations under s 16(4) of the GA Act.
"These may include situations where:
• 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 e.g. sterilization; and
• the application raises a special point of law.
(Page 8)
- These areas of consideration provide some guide to what "best interests" might include in the context of a determination by the Tribunal under s 16(4) of the GA Act."
16 I agree that these areas of consideration provide a guide in making a determination in the "best interests" of a person and have considered these in making my decision.
Findings and reasons
17 Guardianship and administration is a no-cost jurisdiction with the awarding of costs being the exception and only occurring in those cases determined by the Tribunal to involve circumstances which warrant the payment of costs out of the estate of the represented person. Section 16(4) of the GA Act provides that the Tribunal may order such costs relative to proceedings as it thinks fit if it is satisfied that a party has acted in the best interests of the represented person.
18 In this case, the Tribunal accepts RC's good intentions and that he had the represented person's best interests at heart in making the application for administration, but the requirement in s 4 of the GA Act that the best interests of the represented person shall be the Tribunal's primary concern, involves considerations broader than the good intentions of the parties. The Tribunal must make a decision which it believes to be in the best interests of the represented person.
19 RC submitted the application for administration and attended the hearing on 9 May 2006, prior to engaging the services of George Papamihail Barristers and Solicitors on 23 May 2006 and therefore was not, contrary to the information provided in his application, relying on advice from George Papamihail Barristers and Solicitors to bring the matter before the Tribunal or "as to how to stop the misappropriation of [his] father's financial affairs". The issues of concern and the reasons for the application for administration had been provided and discussed at the hearing on 9 May 2006.
20 Evidence was provided to the Tribunal about the conflict between the siblings but this was not sufficient in my opinion to impact on the ability of the parties to provided reasoned and considered information relevant to the proceedings without legal representation.
21 None of the parties had legal representation at the hearing on 9 May 2006. RC attended this hearing and provided information to the Tribunal in a clear and cogent manner. By his attendance he would have
(Page 9)
- understood that hearings are conducted in an informal and non-threatening manner, generally without legal representation. I am not satisfied that it was necessary, or in the represented person's best interests, that RC engage the services of a solicitor to represent him and his sister at the subsequent hearings.
22 The hearing on May 9 2006 was adjourned for further evidence as to the represented person's capacity to make reasoned decisions in respect of his estate. The siblings agreed to seek additional capacity information and to facilitate the provision of reports to the Tribunal. If the evidence about capacity had been adequate, a decision could have been made at the hearing on 9 May 2006 without the need for legal representation.
23 The estate was of insufficient complexity to warrant the involvement of legal counsel in presenting a case to the Tribunal. The only reason for the two adjournments was the paucity of available information in relation to the represented person's capacity to make reasoned decisions for himself about the management of his estate.
24 The account from Downings Legal for $1500 relates to "a will and EPA of [AC]" and is therefore not part of the proceedings before the Tribunal. It would not be appropriate for me to agree to payment of this account to come from the estate of the represented person.
25 I consider that, given the fact that the hearings occurred over a period of seven months, it is reasonable that the parties have transcripts of the proceedings if only to refresh their memory between hearings, and I therefore order that $985.05, being the cost of the three transcripts, be paid out of the estate of the represented person.
Conclusion
26 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 RC and LP at the hearings or to bear the costs associated with the will and EPA documentation which did not form part of the hearing.
27 In my opinion there was nothing about the conduct of the hearings on 12 June 2006, and 9 October 2006 or, for that matter, the first hearing on 9 May 2006, to suggest that legal representation was necessary to ensure the best outcome for the represented person.
(Page 10)
28 I am satisfied that it is appropriate for the estate of the represented person to bear the cost of the three transcripts provided to the parties as the provision of the transcripts is in the best interests of the represented person. Access to the information in the transcripts could affect the quality of information provided at the hearings and consequently impact on the decision.
Order
1. Pursuant to s 16(4) of the Guardianship and Administration Act1990 (WA) $985.05, being the cost of the transcripts of the hearings on 9 May 2006, 12 June 2006 and 9 October 2006, is to be paid out of the estate of the represented person.
2. The application is otherwise dismissed.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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