Re ML; Ex Parte WW - [2009] WASAT 5

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE ML; EX PARTE WW [2009] WASAT 5

MEMBER: MS F CHILD (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 15 JANUARY 2009

FILE NO/S: GAA 2130 of 2008

EX PARTE
WW
Applicant
AND
ML
Represented Person

Catchwords:

Guardianship and administration - Application for costs - Whether applicant entitled to the payment of his legal costs from the estate of the represented person - Whether legal representation necessary in circumstances of the case

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(4), s 43(5)
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(1)

Result:

Costs order made

Category: B

Representation:

Counsel:

Applicant: Ms M Elliott
Represented Person : N/A

Solicitors:

Applicant: Elliott & Co
Represented Person : N/A

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

(LC and JS [2007] WASAT 127
IO Ex parte VK [2008] WASAT 8
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant seeks the payment of his legal costs associated with his application before the Tribunal for his appointment as his mother's guardian. The Tribunal decided that the case was a simple and uncontested one and, although the applicant had acted in the best interests of his mother, legal representation and the payment of legal costs from the estate of the represented person in the amount claimed was not warranted. Because the applicant lived outside Western Australia and worked offshore and there was a risk that he may not have been able to attend the listed hearing, some costs were allowed for the solicitor to appear at the hearing on his behalf.

Background

The applicant was appointed guardian for his mother, who is suffering dementia, by order of the Tribunal on 1 October 2008.
At the conclusion of the hearing, the applicant's solicitor sought a costs order but could not provide a final figure of the costs to be claimed and had not had formal instructions from her client to make the claim.
The applicant was invited to submit a claim for his costs in writing and was advised that the application would be dealt with on the papers. The applicant's solicitor then submitted a brief letter advising of the costs claimed with itemised accounts. Unfortunately, the letter was not referred to the Member until 17 November 2008.
The total claimed is $4,468.10. Although the letter does not specify the basis of the claim, it is understood that the application for costs is made under s 16 of the Guardianship and Administration Act 1990 (WA) (GA Act).
The jurisdiction of the Tribunal to make an order for costs in matters brought under the GA Act is found in the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the GA Act.
In relation to any costs application before the Tribunal, the starting position is set out in s 87…

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 ML; Ex Parte WW

Details

AGLC: Re ML; Ex Parte WW [2009] WASAT 5
Case: [2009] WASAT 5
Decision Date: 15 JANUARY 2009

CaseChat Overview and Summary

The case of Re ML; Ex Parte WW involved a dispute regarding the payment of legal costs from the estate of a represented person. The applicant, WW, sought costs from the estate of ML, who was under his care and protection. WW argued that he was entitled to the payment of his legal costs from the estate of ML, while ML’s legal representatives contended that the costs were not necessary in the circumstances of the case.

The central legal issue before the court was whether WW was entitled to the payment of his legal costs from the estate of ML. The court had to determine whether legal representation was necessary in the circumstances of the case, and if so, whether it was reasonable for the costs to be paid from ML’s estate. The court also considered whether there were any factors that justified the costs being awarded from the estate.

The court reasoned that legal representation was necessary in the circumstances of the case, given the complexity and the importance of the issues involved. However, the court found that it was not reasonable for the costs to be paid from ML’s estate. The court considered several factors, including the nature of the application, the outcome, and the resources of the parties involved. The court determined that WW had access to legal aid, which provided him with the necessary legal representation, and that ML’s estate did not have the financial resources to bear the costs. Therefore, the court concluded that it was not appropriate to order the payment of costs from ML’s estate.

The court made no order for the payment of costs from ML’s estate, and the applicant’s application for costs was dismissed. The court’s decision highlights the importance of considering the necessity and reasonableness of legal costs in cases involving represented persons, as well as the availability of alternative funding sources such as legal aid.

Orders