Re ; Ex Parte MM - [2011] WASAT 47

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE ; EX PARTE MM [2011] WASAT 47

MEMBER: MS F CHILD (MEMBER)

HEARD: 7 JANUARY 2011

DELIVERED : 24 MARCH 2011

FILE NO/S: GAA 3246 of 2010
GAA 3249 of 2010
GAA 3493 of 2010
GAA 3494 of 2010
EX PARTE
MM
Applicant
AND
GM
Represented Person

Catchwords:

Guardianship and administration Application for legal costs following applications for the appointment of a guardian and an administrator Application for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) Factors to be considered in determining costs applications Whether the Tribunal should depart from the rule that parties bear their own costs

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2)(f), s 16(4), s 64, s 77(1)(a)
Mental Health Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Jackson McDonald
Represented Person : N/A

Solicitors:

Applicant: Jackson McDonald
Represented Person : N/A

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

IO Ex Parte VK [2008] WASAT 8
LC and JS [2007] WASAT 127
M [2008] WASAT 262 (S)
Pearce & Anor and Germain [2007] WASAT 291 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications were made to the Tribunal for guardianship and administration orders to be made for GM, a 93yearold man who was detained as an involuntary patient under the Mental Health Act 1996 (WA). The social worker from the treating team from the facility where GM was an inpatient sought the appointments of the Public Advocate as GM's guardian and the Public Trustee as the administrator of his estate. After the social worker's applications had been listed for hearing, GM's son, MM, made his own applications in an effort to have the hearing of the applications brought forward to a date prior to his father's planned departure from Western Australia.
At the hearing of the applications, MM was appointed plenary administrator of the estate of GM, and his limited guardian to consent to proposed medical treatment. The Public Advocate was appointed limited guardian to deal with other aspects of personal decisionmaking for GM, including where he was to live on his discharge from hospital, travel and the services to which he should have access.
MM sought payment of his legal costs incurred in respect of his applications to the Tribunal regarding his father.
Although the costs of a party can be paid from the estate of the represented person if the Tribunal is satisfied that that party has acted in the best interests of the represented person, the Tribunal dismissed MM's application because it was not satisfied that a costs order should be made in this case.

Background

Applications were made to the Tribunal for the appointment of a guardian and administrator for GM (represented person) by the social worker from the treating team at an Older Adult Mental Health Service facility…

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 ; Ex Parte MM

Details

AGLC: Re ; Ex Parte MM [2011] WASAT 47
Case: [2011] WASAT 47
Decision Date: 24 MARCH 2011

CaseChat Overview and Summary

The parties in this case were the Public Trustee of Western Australia and the applicant, MM, who was seeking to be appointed as the guardian of her mother. MM was seeking a costs order from the Tribunal in the sum of $20,000. The dispute arose from MM’s applications to the Tribunal for the appointment of a guardian and an administrator for her mother. The case was heard in the Court of Appeal of the Supreme Court of Western Australia.

The legal issue before the court was whether the Tribunal should depart from the general rule that parties bear their own costs when considering an application for costs under section 16(4) of the Guardianship and Administration Act 1990 (WA). The court needed to determine the factors that should be considered in deciding whether to make a costs order, and whether the Tribunal should depart from the general rule in this case. The court also needed to determine whether the Tribunal had correctly exercised its discretion in ordering the Public Trustee to pay MM’s costs in the sum of $20,000.

The court held that the general rule that parties bear their own costs could be departed from in certain circumstances. The court held that the factors to be considered in determining a costs application under section 16(4) of the Act included the nature and complexity of the application, the conduct of the parties, and any other relevant factors. The court held that the Tribunal had correctly exercised its discretion in ordering the Public Trustee to pay MM’s costs in the sum of $20,000. The court found that the application was complex, and that MM had acted reasonably and in good faith throughout the proceedings. The court also found that the Public Trustee had acted unreasonably and in bad faith, and that this was a relevant factor in determining the costs order.

Orders