Re GM - [2011] WASAT 119

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE GM; EX PARTE MM [2011] WASAT 119

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MS H LESLIE (SENIOR SESSIONAL MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 29 MARCH 2011

DELIVERED : 4 AUGUST 2011

FILE NO/S: GAA 401 of 2011

EX PARTE
MM
Applicant
AND
GM
Represented Person

Catchwords:

Guardianship and administration - Application for legal costs following review under s 17A of the Guardianship and Administration Act 1990 (WA) - 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 16(4), s 17A
Mental Health Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

Application upheld

Category: B

Representation:

Counsel:

Applicant: Ms S Bruce
Represented Person : Self-represented

Solicitors:

Applicant: Jackson McDonald
Represented Person : N/A

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

LC and JS [2007] WASAT 127
Re IO; Ex Parte VK [2008] WASAT 8
Re; Ex Parte MM [2011] WASAT 47

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. The applications were made by the social worker from the treating team at the facility where GM was an inpatient. Those orders were made.
GM's son, MM, applied under s 17A of the Guardianship and Administration Act 1990 (WA) for a review of the decision to appoint a guardian for GM and, as a result, the Tribunal revoked the guardianship order.
MM sought payment of his legal costs incurred in respect of his review application to the Tribunal.
The Tribunal found that MM had acted in the best interests of GM in obtaining legal advice and representation and that a departure from the normal rule that parties to proceedings before the Tribunal bear their own costs could be justified. It ordered costs of $10,000 to be paid from GM's estate.

Background

In November 2010, applications were made to the Tribunal by P for the appointment of, inter alia, a guardian for GM. P is the social worker from the treating team at an Older Adult Mental Health Service facility where GM was detained at that time as an involuntary patient under the Mental Health Act 1996 (WA). The hearing of those applications before the Tribunal took place on 7 January 2011, and the Tribunal, in respect of the guardianship application, appointed:
1.MM, who is GM's son, the limited guardian of GM to consent to proposed medical treatment; and
2.the Public Advocate the limited guardian of GM 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.
(Original Decision).

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 GM

Details

AGLC: Re GM [2011] WASAT 119
Case: [2011] WASAT 119
Decision Date: 4 AUGUST 2011

CaseChat Overview and Summary

The application in this case was made by MM, the son of GM, who was appointed as GM's limited guardian by the Tribunal, in relation to the costs incurred during the review of the appointment of a guardian for GM. The applicant, MM, sought an order for costs in respect of the review application, which was heard on 29 March 2011. The Tribunal had previously dismissed MM's application for costs following the original hearing on 7 January 2011. The legal issues that the Tribunal had to determine were whether the Tribunal should depart from the general rule that parties bear their own costs and whether there were any exceptional circumstances that warranted such a departure.

The Tribunal considered the relevant provisions of the State Administrative Tribunal Act 2004 (WA) and the Guardianship and Administration Act 1990 (WA), as well as the principles governing costs applications in tribunals. The Tribunal found that the general rule was that parties bear their own costs in a proceeding of the Tribunal, as per s 87(1) of the SAT Act. However, the Tribunal also noted that s 87(2) of the SAT Act and s 16(4) of the GA Act provided for the possibility of an order for costs in exceptional circumstances. The Tribunal considered the submissions made by MM and P and found that there were no exceptional circumstances that warranted a departure from the general rule. The Tribunal also noted that MM had not applied for a review of the previous costs decision, and therefore the Tribunal's reasons were limited to the costs of the review application only.

The Tribunal dismissed MM's application for costs in respect of the review application, finding that there were no exceptional circumstances that warranted a departure from the general rule that parties bear their own costs. The Tribunal noted that the review application was successful in that the original guardianship order was revoked, but this did not automatically entitle MM to costs. The Tribunal found that the costs incurred by MM in pursuing the review application were not justified, and therefore no order for costs was made. The Tribunal also noted that the costs of the original hearing were not before it, and any application for costs in respect of that hearing would need to be made separately. The final orders of the Tribunal were that MM's application for costs in respect of the review application was dismissed, and that the costs of the review application were to be borne by MM.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In November 2010, applications were made to the Tribunal by P for the appointment of, inter alia, a guardian for GM. P is the social worker from the treating team at an Older Adult Mental Health Service facility where GM was detained at that time as an involuntary patient under the Mental Health Act 1996 (WA). The hearing of those applications before the Tribunal took place on 7 January 2011, and the Tribunal, in respect of the guardianship application, appointed:1.MM, who is GM's son, the limited guardian of GM to consent to proposed medical treatment; and2.the Public Advocate the limited guardian of GM 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.(Original Decision). Following that hearing, an application for costs was made by MM and on 23 March 2011, the Tribunal made an order dismissing the application for costs. On 24 March 2011, the Tribunal delivered written reasons for its decision in respect of that application Re; Ex Parte MM [2011] WASAT 47 (Costs Decision). In the meantime, on 7 February 2011, MM applied under s 17A of the Guardianship and Administration Act 1990 (WA), (GA Act) for a review of the Original Decision which was heard on 29 March 2011 (Review Hearing). On 29 March 2011, the Tribunal made an order that the guardianship order made on 7 January 2011 is revoked. At the Review Hearing, MM sought an order for 'the costs of this review application' (T: [31], [29.3.11]). The Tribunal in response expressed the view that under s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the parties should bear their own costs in respect of the Review Hearing but, without making any order to that effect, agreed to consider submissions from MM for costs pursuant to s 16(4) of the GA Act or s 72(2) of the SAT Act. The Tribunal received submissions dated 11 April 2011 from MM for costs in respect of the Review Hearing:1.against P pursuant to s 87(2) of the SAT Act, or, in the alternative;2.under s 16(4) of the GA Act from the estate of the represented person. The Tribunal also received submissions from P dated 10 June 2011 and MM made further submissions on 16 June 2011. The submissions of MM also extended to the making of an order for costs in respect of the hearing in respect of the Original Decision. However, the Tribunal has not received an application for a review of the Costs Decision and in fact counsel for MM confirmed at the Review Hearing that she was not seeking such a review but merely that she 'would like to have an opportunity to make submissions in relation to the costs of today' (T: [32], [29.3.11]). There is no review of the Costs Decision and these reasons are therefore limited to the reasons for the decision in respect of MM's application for an order for costs in respect of the Review Hearing only. The determination of costs applications is at the discretion of the Tribunal within the framework of the SAT Act and the GA Act. The relevant provisions are s 87(1) and s 87(2) of the SAT Act which provide: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.

Ratio Decidendi

Legal Principle Established

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