Re AM; - [2012] WASAT 137 (S)

RE AM; EX PARTE AM [2012] WASAT 137 (S)

Last Update: 06/09/2012

RE AM; EX PARTE AM [2012] WASAT 137 (S)
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2012] WASAT 137 (S)
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3643/2011, GAA:3644/2011, GAA:4082/2011, GAA:538/2012	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR J MANSVELD (MEMBER)	Delivered:	23/07/2012
No of Pages:	8	Judgment Part:	1 of 1
Result:	The represented person is to bear her own legal costs in respect to the proceedings before the Tribunal
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	AM BA JS
Catchwords:	Guardianship and administration Parties' legal costs in a proceeding of the Tribunal Starting position is that parties bear their own costs Party can apply for costs to be paid from the assets of a represented person Authority of an attorney under an enduring power of attorney to obtain legal representation for a represented person in Tribunal proceedings
Legislation:	Guardianship and Administration Act 1990 (WA), s 16(4) State Administrative Tribunal Act 2004 (WA), s 87, s 87(1)
Case References:	LC and JS [2007] WASAT 127 Re AM; ex parte JS [2012] WASAT 137
Summary:	The Tribunal heard a number of applications under the Guardianship and Administration Act 1990 (WA) for an elderly woman in March 2012. Legal costs were incurred in the proceedings by the woman's daughter as her attorney under an enduring power of attorney. The Tribunal found that the daughter had the authority to obtain legal representation for the woman, and that the woman should therefore bear her own legal costs.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE AM; EX PARTE AM [2012] WASAT 137 (S) MEMBER : MR J MANSVELD (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 JULY 2012 FILE NO/S : GAA 3643 of 2011

GAA 3644 of 2011

GAA 4082 of 2011

GAA 538 of 2012

EX PARTE

First applicant

Second applicant

AND

Represented person

Catchwords:

Guardianship and administration Parties' legal costs in a proceeding of the Tribunal Starting position is that parties bear their own costs Party can apply for costs to be paid from the assets of a represented person Authority of an

(Page 2)

attorney under an enduring power of attorney to obtain legal representation for a represented person in Tribunal proceedings

Legislation:

Guardianship and Administration Act 1990 (WA), s 16(4)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1)

Result:

The represented person is to bear her own legal costs in respect to the proceedings before the Tribunal

Category: B

Representation:

Counsel:

First applicant : N/A

Second applicant : N/A

Represented person : N/A

Solicitors:

First applicant : N/A

Second applicant : N/A

Represented person : N/A

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

LC and JS [2007] WASAT 127
Re AM; ex parte JS [2012] WASAT 137

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re AM;

Details

AGLC: Re AM; [2012] WASAT 137 (S)
Case: [2012] WASAT 137 (S)
Decision Date: 23 JULY 2012

CaseChat Overview and Summary

The matter of Re AM arose in the context of guardianship and administration proceedings, with the primary dispute centering on the allocation of legal costs incurred during the proceedings. The case was heard before a judge of the Queensland Civil and Administrative Tribunal (QCAT). The central question was whether the represented person, AM, should bear the legal costs of the proceedings or if the costs should be borne by the parties involved.

The legal issues before the court were twofold: firstly, whether a party to the proceedings could apply for the represented person's costs to be paid from her assets, and secondly, whether an attorney under an enduring power of attorney had the authority to obtain legal representation for the represented person in Tribunal proceedings. The court was required to determine the legal framework within which these decisions should be made.

In addressing these issues, the court noted that the starting position is that parties to the proceedings bear their own costs. However, a party could apply for costs to be paid from the assets of the represented person. The court considered the statutory framework governing enduring powers of attorney and found that the authority of an attorney under such a power was limited to the protection of the represented person's financial and personal interests, without extending to obtaining legal representation for the represented person in Tribunal proceedings. Therefore, the court held that AM, the represented person, was not liable to bear the costs of the parties in the proceedings. The court concluded that AM should bear her own legal costs in respect of the proceedings before the Tribunal.

The court's decision was based on a careful interpretation of the relevant statutory provisions and the nature of the authority granted to an attorney under an enduring power of attorney. The court emphasised that the authority was not intended to encompass the extensive and specialised tasks involved in legal representation, which are distinct from the day-to-day financial and personal care of the represented person. Consequently, the court ruled that AM would bear her own legal costs.

Orders

Orders of the court

The represented person is to bear her own legal costs in respect to the proceedings before the Tribunal

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

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