Re IO; Ex Parte VK
[2008] WASAT 8
•22 JANUARY 2008
RE IO; EX PARTE VK [2008] WASAT 8
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 8 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1259/2007 | 14 NOVEMBER 2007 | |
| Coram: | MS F CHILD (MEMBER) DR R CLARNETTE (SENIOR SESSIONAL MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER) | 21/01/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Order made for costs Dismissal of application by BO | ||
| B | |||
| PDF Version |
| Parties: | VK IO BO |
Catchwords: | Guardianship and administration Application for legal costs from represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) Application for costs under s 87(2) of the State Administrative Tribunal Act 2004 (WA) Costs relative to the proceedings |
Legislation: | Guardianship and Administration Act 1990 (WA), s 16 State Administrative Tribunal Act 2004 (WA), s 9, s 39, s 82, s 87 |
Case References: | LC and JS [2007] WASAT 127 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE IO; EX PARTE VK [2008] WASAT 8 MEMBER : MS F CHILD (MEMBER)
- DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
VK
Applicant
Catchwords:
Guardianship and administration - Application for legal costs from represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Application for costs under s 87(2) of the State Administrative Tribunal Act 2004 (WA) - Costs relative to the proceedings
Legislation:
Guardianship and Administration Act 1990 (WA), s 16
State Administrative Tribunal Act 2004 (WA), s 9, s 39, s 82, s 87
(Page 2)
Result:
Order made for costs
Dismissal of application by BO
Category: B
Representation:
Counsel:
Applicant : Mr M Fatherly
Represented Person : Mr V Ozich (Acting as Agent)
Interested Party : Mr D Pratt
Solicitors:
Applicant : Kott Gunning
Represented Person : N/A
Interested Party : Jackson McDonald
Case(s) referred to in decision(s):
LC and JS [2007] WASAT 127
(Page 3)
Summary of Tribunal's decision
1 The daughter of an elderly man with dementia applied to the State Administrative Tribunal for the appointment of a guardian and administrator for him. The daughter had made the applications following a transfer of land from her father to her sister in circumstances which raised concerns about his capacity to understand the transaction and to protect his own interests. As a result of the transfer of the property, he had lost his pension entitlement. His other daughter, the transferee of the land, was at the time of the hearing managing all of his financial affairs. The Tribunal considered medical and other evidence at a hearing and determined that the man did not have capacity to manage his personal or financial affairs, and that he needed an independent administrator to assess the circumstances of the transfer and to manage his financial affairs. The Tribunal determined that a guardian was required to arrange an assessment of his living circumstances and to ensure his care needs were met. The informal arrangements in place at the time of the hearing were found to be not adequate, as his daughter, the transferee of the land who was his primary carer, did not appreciate the extent of his disabilities and his need for an increased level of supervision to ensure his safety. The Tribunal appointed the Public Trustee and Public Advocate as his administrator and guardian respectively. The applicant daughter then asked that her legal costs be met from her father's estate.
2 The Tribunal ordered that part of the costs incurred by her should be paid from her father's estate because it was satisfied that she had acted in his best interests in bringing the application, the application might not have been made but for the legal advice and assistance obtained by her and she was assisted in the presentation of the application by her legal representative.
3 In view of the conflict in the evidence about the capacity of the proposed represented person; the complexity in relation to the transfer of land which was the reason for the applications being made; allegations that his financial affairs were not being managed in his best interests, and the conflict between his daughters, the Tribunal considered that legal representation was warranted.
4 The Tribunal accepted the submission of the daughter who was the transferee of the land that serious allegations had been made and that she was entitled to be legally represented at the hearing of the Tribunal.
(Page 4)
- It did not accept the submission that either her father or her sister should pay for that representation. Her application for her costs was dismissed.
5 In respect of the applicant's costs, the Tribunal determined that not all of the costs charged could be properly said to relate to the proceedings of the Tribunal and so, therefore, should not be paid from the estate. An amount of the costs incurred by the applicant daughter, which the Tribunal determined were relative to the proceedings before it, were ordered to be paid from the estate.
Background
6 These reasons relate to applications for costs arising from a hearing of the State Administrative Tribunal of applications brought under the under the Guardianship and Administration Act 1990 (WA) (GA Act). The applications were made by each of the daughters of IO (represented person). The applicant daughter in the proceedings (applicant) seeks an order for her legal costs to be paid from the estate of her father pursuant to s 16(4) of the GA Act. Her sister (BO), makes an application for both daughters' costs to be paid from the estate if the applicant's are, and, alternatively, under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), for her costs to be paid by the applicant.
7 The costs incurred by the applicant and BO relate to proceedings for the appointment of a guardian and an administrator for the represented person, an elderly man suffering dementia. The hearing of the application occurred on 14 November 2007. Following the hearing, the Public Advocate was appointed plenary guardian of the represented person, and the Public Trustee was appointed plenary administrator.
8 The background to the applications for the appointment of a guardian and an administrator was the transfer of land by the represented person to his daughter and son-in-law on 21 December 2006. They paid one-half of the valuation of the property, being $850 000, and stated that on the represented person's death, he would forgive the repayment of the balance. An effect of the transaction was that the represented person lost his pension entitlement because of the operation of the Centrelink assets test.
9 The applicant brought the application for the appointment of a guardian and an administrator because she stated that she considered that the represented person was no longer capable of looking after his own affairs and that he did not have capacity to enter into the transaction to transfer his land.
(Page 5)
10 It was argued on behalf of the applicant's sister that the transfer of land was consistent with her father's wishes, and the appointment of a guardian and an administrator was opposed unless she herself was appointed. She did not accept that her father's capacity was impaired.
11 The conflict between the daughters, being the applicant and the transferee of the land, meant that communication had completely broken down and they had not spoken to each other for a period of time.
12 In determining the applications, the Tribunal had both oral and written medical evidence, evidence from the daughters as to the personal and health circumstances of the represented person and the conflict between them, submissions from counsel for both daughters, submissions from a solicitor who had been engaged on behalf of the represented person but considered he could not take instructions from him because, in his assessment, the represented person had no working memory, and written and oral submissions from the Public Advocate's representative who had met with the represented person and with other family members.
13 The Tribunal determined that the represented person did not have capacity to make reasonable judgments about his person or about his estate and that there was a need for orders to be made.
14 At the time of the hearing, the represented person was living alone without support services. He was reliant upon his daughters for assistance in relation to most areas of his life, including financial management, shopping, and meal preparation. The Tribunal concluded from her evidence that BO, who was his main carer, did not have an appreciation of the dementia suffered by her father, and so the arrangements she had put in place for provision of his meals and for supervision of his safety and care needs probably did not meet his increasing dependence. The Tribunal considered that one of the needs of the represented person was a full assessment of his functional capacities to assess his care needs, and in particular, a guardian needed to consider whether additional services were required to enable him to continue to live safely in the community or to make alternative arrangements for his accommodation and care.
15 The need for the appointment of an independent administrator arose from the circumstances of transfer of the property from the represented person to his daughter and his son-in-law. On the basis of the medical evidence of a diagnosis of dementia and the represented person's reported
(Page 6)
- and apparent consistent inability to recollect the transfer of land when assessed by the psychiatrist, when interviewed by the Public Advocate and when questioned by his daughter, the Tribunal concluded that, in all likelihood, he was incapable of entering into that transaction at the time of the transfer. The Tribunal also found that the transaction was not in his best interests since it had resulted in the loss of his land for the payment of only half its value and the loss of his pension entitlement. The transaction occurred in the context of the dependence on his daughter who was the transferee and on her family members for his day-to-day care, literacy and language difficulties, the conflict between his daughters and the absence of independent legal advice. The Tribunal accepted submissions from the Public Advocate and the applicant that the transfer of land and its consequences needed to be examined by an independent administrator.
16 The Tribunal also considered that the Public Trustee should be appointed, not only to examine the transfer of land but also to provide greater accountability for the management of funds of the represented person that had previously been managed by BO.
17 Both daughters did not oppose the appointment of the Public Trustee as administrator.
Applications for legal costs
18 The Tribunal received an application from the applicant for her legal costs to be paid at the conclusion of the hearing. It reserved the decision on the costs application of the applicant and sought written submissions from the applicant and from BO.
19 In the written submissions of the applicant, it is submitted that the applicant acted in the best interests of the represented person by bringing the application because of the concerns of the health and wellbeing of her father, and in the circumstances, that his financial circumstances were largely controlled by BO and so her costs should be paid out of his estate.
20 The submission states that the applicant was represented by a senior legal practitioner who questioned Dr G (a psychiatrist who provided a report regarding the capacity of the represented person) and made submissions to the Tribunal regarding the property transaction and the effect of the transaction in relation to the need for a guardian and an administrator.
21 The total legal costs and disbursements charged to the applicant in relation to her father's affairs, including attempts to clarify issues about
(Page 7)
- capacity, communicating with the other parties and solicitors prior to bringing the application, obtaining advice, making the application, preparing for and attending the hearing, and preparation of submissions is $10 107.13 including GST.
22 It is submitted by the applicant's solicitor that BO's application under s 87 for her costs to be paid by the applicant is inappropriate because of the nature of the proceedings, being guardianship and administration proceedings rather than adversarial proceedings, and that there is no basis for BO's claim for costs under s 16(4) of the GA Act, as it is submitted that she did not act in the interests of her father in relation to the application in that she did not make the application. It is submitted that BO should bear her own costs.
23 On behalf of BO, it is submitted that the applicant is not entitled to an order for her costs out of the estate under s 16(4) of the GA Act or, in the alternative, if orders are to be made, then an order should be made for the costs of both the applicant and BO from the estate of the represented person. In addition, it is submitted that the applicant should be ordered to pay an amount in respect of BO's legal costs in order to compensate BO for the embarrassment she incurred in connection with the unsustained allegations that BO misused the represented person's funds.
24 In respect of the first submission, it is submitted that both daughters should receive payment of their costs from the estate since BO, too, was acting in what she regarded as the best interests of the represented person. In relation to the second submission, it is submitted that because the allegations made about BO were "unsustained" and "unsustainable having regard to the period to which they related", and that they were irrelevant subject matter for the Tribunal, such allegations (which were analogous to fraud) were of such a serious nature that BO was both entitled to and required legal representation at the hearing. It is submitted that the applicant should pay, pursuant to s 87(2) of the SAT Act, an amount to compensate BO in respect of her embarrassment at the allegations and for her costs for legal representation at the hearing on 14 November 2007. It is submitted that $5000 is an appropriate sum for each daughter.
Legislation
25 The GA Act provides at s 16(4) that:
(Page 8)
- "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."
26 The SAT Act provides at s 87 that:
"(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.
(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.
…"
(Page 9)
28 In the LC and JS decision above, the member discusses the environment in which the Tribunal operates and the obligations and objectives of the Tribunal under s 9 of the SAT Act to act fairly, speedily and with as little formality and technicality as is practicable, and to minimise costs to the parties. The Member notes that an informal non-adversarial environment is more conducive to self-represented parties. This is common in proceedings before the Tribunal brought under the GA Act which are inquisitorial and informal and where legal representation is the exception rather than the rule (see [38] - [45]).
29 The Member then reviews the few cases decided by the Tribunal and two decisions of the Queensland Guardianship Tribunal, and draws together factors which might be taken into account by the Tribunal when deciding that a costs order may be warranted. Those factors are, in summary:
• 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;
• where 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;
• where 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;
• where 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;
• where the application is contentious and unique; and
• where the application raises a special point of law.
30 The Member notes that it is at the discretion of the Tribunal to make a decision about costs and the facts of a particular case.
31 In relation to the facts of this case, the application was brought by the daughter of the represented person where the major asset of the estate of
(Page 10)
- the represented person had been transferred to his other daughter in circumstances where there was a doubt about the capacity of the represented person to understand that transaction. There were also allegations that the transferee had misused her authority in relation to the banking arrangements of the represented person to make undocumented loans, and advanced other funds of the represented person without proper recognition of his interests. It was also alleged that records maintained by her were inadequate to properly provide accountability in relation to the management of the represented person's funds.
32 The determination by the Tribunal that the represented person was in need of an administrator and a guardian was based on the finding that his needs for appropriate management of his financial affairs and management of his personal matters were not being met in the circumstances as presented when the applications were first heard by the Tribunal. Had the applicant not brought the applications to the Tribunal but had been satisfied with the proposal of BO that she receive a share of the proceeds paid on the transfer of the property from the represented person to BO and her spouse, then the represented person would not have been afforded the protection of the appointment of the Public Trustee as an independent administrator of his estate. In the orders made by the Tribunal, the administrator was directed by the Tribunal to examine the transfer of land of the represented person to the daughter and son-in-law, and to determine what action should be taken in respect of that transfer in the best interests of the represented person.
33 At the time of the hearing, the daughter, BO, stated that she believed her father was capable of transferring the property and that this had been his wish. The Tribunal heard evidence about the circumstances surrounding the capacity assessment of the represented person by Dr G. Dr G's evidence was that he was given incorrect information regarding the circumstances of the represented person at an appointment attended by the represented person and BO, which had materially affected the conclusions he had reached about the capacity of the represented person. The report prepared by Dr G required closer examination at the hearing, and counsel for both the applicant and BO questioned him and made submissions about the evidence given.
34 There was conflict between the parties, such that the relationship had entirely broken down and that there was little contact between them. One of the needs identified for the appointment of a guardian was the management of contact with the represented person, and the Public Advocate was appointed for this purpose because the Tribunal was
(Page 11)
- not satisfied that either of the daughters, particularly BO, would facilitate contact with the other. Such conflict is relatively common in proceedings before the Tribunal under the GA Act and would not, of itself, support the need for legal representation or the payment of legal costs of the applicant from the represented person's estate.
35 The position of BO up to and during the hearing was that her father was capable and that there was insufficient evidence to displace the presumption of capacity. The proposal by BO was that no administrator or guardian be appointed but that if one were to be appointed, she proposed that the Public Trustee be appointed administrator and that she be appointed limited guardian.
36 Because of the position taken by BO in the proceedings, it is clear that no application would have been made had the applicant not brought the matter before the Tribunal. Consequently, the protection of the order would not have been provided had the application not been made. It appears that she would not have made the application had she not had the legal advice to do so. The Tribunal accepts that the applicant acted in the best interests of the represented person in bringing the application, and required some legal assistance to properly argue her case before the Tribunal. The submissions of her counsel were of assistance to both the applicant and the Tribunal, although it must be said that the questioning of the psychiatrist regarding the capacity assessment of the represented person was conducted, in large part, by a Senior Sessional Member of the Tribunal who was a member of the panel who heard this matter.
37 The itemised accounts provided by the solicitors for the applicant indicate that she first sought legal advice in December 2006, apparently following her becoming aware of the transfer of the land of the represented person. It appears, from the itemised accounts, that there were negotiations with solicitors for BO and examination of the medical issues, including capacity of the represented person, and that it was not until June 2007 that the "requirements and powers" of the GA Act were considered. An application was not filed with the Tribunal until 2 July 2007.
38 Some of the legal costs incurred appear to be related to advice and assistance regarding the transfer and the rights of the applicant rather than being relative to the proceedings before the Tribunal for the appointment of a guardian and an administrator. This raises the question about whether all of the costs charged over the period fall under s 16(4) of the GA Act.
(Page 12)
39 In relation to BO's application for her costs to be paid if the costs of the applicant are paid from the estate, we do not accept that this is the proper basis for determining an application under s 16(4) of the GA Act.
40 In respect of the requirement that BO acted in the best interests of the represented person in relation to the proceedings to be eligible for costs, we accept that she attended the proceedings and contributed to them, but this is true of numerous persons who attend hearings before the Tribunal, sometimes with legal representation. It cannot be said that she acted in the best interests in relation to the proceedings, as she did not bring the application and did not appreciate the need for orders.
41 In relation to the seriousness of the allegations made by the applicant about the possible mismanagement of the finances of the represented person by BO, we consider that they were serious, and accept that BO wished to have legal representation to respond to them; however, the question is not whether BO was entitled to legal representation - as s 39 of the SAT Act provides that she is so entitled - but whether the represented person should pay for that representation. The Tribunal considers BO had legal representation to argue her own position and interests before the Tribunal rather than the interests of the represented person, and on this basis, her application under s 16(4) of the GA Act is dismissed.
42 In respect of BO's application under s 87(2) of the SAT Act for her costs to be paid by the applicant, we do not accept that there is need for BO to be compensated for embarrassment caused by the conduct of the proceedings by the applicant or by her counsel. Issues such as those raised by the applicant and forming part of the submissions of her legal representative in the hearing, regarding the financial management of the represented person's affairs by BO, including her role in the transfer of land, lack of accountability, and raising questions regarding possible inappropriate transactions, are matters which are raised frequently before the Tribunal in applications under the GA Act. It would not be appropriate to dissuade applicants who have concerns about the conduct of the affairs of incapable or vulnerable persons from making applications for the appointment of a guardian and an administrator. This is not to say that an order could not be made under s 87(3) of the SAT Act in a GA Act proceeding where an application was made for an improper purpose, or a case is conducted in such a way as to embarrass or inconvenience another person. This is not such a case. This part of the application is also dismissed.
(Page 13)
Orders
1. The applicant's application for costs pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) is allowed in the amount of $7580.
2. The applications by BO pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) and s 87(2) of the State Administrative Tribunal Act 2004 (WA) are dismissed.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER