Re GM
[2011] WASAT 119
•4 AUGUST 2011
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
ApplicantAND
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).
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.
Legislation
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.
and s 16(4) of the GA Act which provides:
Costs
…
(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.
Submissions of MM for payment of his legal costs
The essence of MM's submissions appears to be that the Tribunal should exercise its discretion under s 87(2) of the SAT Act and order the payment by P of MM's costs in respect of the Review Hearing, on the basis that, in MM's submission, the Review Hearing ought not to have been necessary. MM submits that P acted unreasonably and/or inappropriately in her conduct of the original proceedings which caused unnecessary costs to be incurred in the Review Hearing.
In the alternative, MM submits that he has acted in the best interests of the represented person and seeks an order that costs relevant to those proceedings as the Tribunal thinks fit be paid to MM by or out of the assets of the represented person, GM, under s 16(4) of the GA Act.
MM submits that the Review Hearing was a case which falls outside the area of expectation that the Tribunal is able to make a correct and preferable decision in the best interests of the represented person without parties requiring professional legal input. MM submits that there was an absence of fair process at the original hearing which was remedied only by MM calling for, and having the decision reviewed, on the advice and with the assistance of his solicitors. He submits that, but for his legal representation, the Original Decision would not have been reviewed and, further, that the Tribunal would not have had before it all material relevant to enable it to make a 'sound and safe decision in the represented person's best interests'.
Submissions in relation to costs order against P
These submissions are, in essence, very simple. Under s 87(2) of the SAT Act, the Tribunal has the discretion to order one party to pay the other party's costs in appropriate cases. P submits that she was not a party to the Review Hearing and therefore that there is no scope to order that any costs be paid by P in relation to those proceedings.
The Tribunal's findings in respect of MM's application for costs under s 87(2) of the SAT Act from P
The Tribunal agrees with P's submissions. P was not a party to the Review Hearing and there is no scope under s 87(2) of the SAT Act to award costs against her. In any event, MM's submissions in this regard appear to be nothing more than a revisit of the issues which were dealt with in the Costs Decision, which decision is not under review.
The Tribunal therefore declines to make any order for costs against P.
The Tribunal's findings in respect of MM's application for costs under s 16(4) of the GA Act from the estate of the represented person
Generally, the Tribunal by the inquisitorial nature of its proceedings is able to make its decisions in the best interests of the represented person without the parties requiring legal representation. If, however, a party to a proceeding is represented then the Tribunal does have a wide discretion under s 16(4) of the GA Act to award costs, although as the Tribunal stated in LC and JS [2007] WASAT 127 (LC and JS), s 16(4) of the GA Act should not be read independently of the costs regime set out in the SAT Act LC and JS at [35]. The starting position is s 87(1) of the SAT Act, which provides that parties bear their own costs.
The entitlement to costs under s 16(4) of the GA Act has been treated more narrowly than simply the recognition that an applicant applying for costs has acted in the best interests of the proposed or represented person, since it has been recognised that it is 'not a difficult threshold to cross' LC and JS at [34].
Thus, something more than merely acting in the best interests of the represented person is required before a costs order will be made. Cases where costs might be awarded include cases where legal advice and representation has been obtained which led to the protection of the interests of the represented person following the application being made. For example, in the case of Re IO; Ex Parte VK [2008] WASAT 8, the Tribunal ordered that some of the costs of the applicant's daughter be paid from her father's estate, because the application might not have been made but for the legal advice and assistance obtained by her.
In this case, the Tribunal accepts that MM acted throughout the Review Hearing out of concern for the interests and wishes of GM. As the Tribunal commented at the Review Hearing, MM appeared, presumably as a result of having sought and obtained legal advice, to be much better informed about the effect and operation of the GA Act than he was at the original hearing and thus presented his application for review and made his submissions at the Review Hearing in a manner which was of assistance to the Tribunal in coming to its decision.
In addition, GM, who was present throughout the Review Hearing, raised no objection when MM informed the Tribunal that he had engaged counsel at GM's request. The Tribunal has no reason to doubt this. It is in fact consistent with the fact that GM told the Tribunal that he regarded the guardianship order as restrictive and that he wanted to take care of himself.
The Tribunal is therefore satisfied in this case that it should make an order under s 16(4) of the GA Act and orders that costs of $10,000 be paid out of GM's estate towards MM's costs.
Orders
The Tribunal orders that:
1.MM's legal costs in the sum of $10,000 be paid out of the estate of GM pursuant to s 16(4) of the Guardianship and Administration Act 1990(WA).
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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