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 of the SAT Act, which provides:
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.
In this case, the enabling act is the GA Act. Section 16(4) of the GA Act provides:
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.
Prior to the amendment of the GA Act in 2004 (with the establishment of the Tribunal) s 16 of the GA Act contained a provision which mirrors s 87(1) of the SAT Act. Section 87 applies to all matters before the Tribunal and there is nothing in s 16(4) of the GA Act which is inconsistent with it. The intention must be that s 87 of the SAT Act is read together with s 16(4) of the GA Act when dealing with an application under that section.
In respect of the requirement in s 16(4) of the GA Act that the applicant for costs establish that they have acted in the best interests of the represented person, there is no doubt that the applicant ‑ the son of the represented person ‑ acted in her best interests in bringing the application to the Tribunal. The medical evidence before the Tribunal was clear; the represented person had lost capacity to capably make decisions about her personal affairs and was refusing support services deemed necessary for her health and safety. She would not agree to investigation of significant health issues. The applicant ‑ her only child ‑ sought formal authority to act on his mother's behalf as her guardian to make decisions for her, including decisions regarding services and where she should live, and to give consent to medical treatment.
Persons coming before the Tribunal as applicants (or as participants in hearings) generally act in such a way as to assist the Tribunal and with the best interests of the proposed or represented person as their focus. Therefore, the entitlement to costs under s 16(4) of the GA Act has been treated by the Tribunal 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 that is 'not a difficult threshold to cross': see LC and JS [2007] WASAT 127 (LC and JS).
In that decision (and in other decisions of the Tribunal in other streams: see, for example, J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282), costs applications are considered within the context of the obligations of the Tribunal to adopt procedures and practices consistent with 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.
In dealing with applications brought under the GA Act, procedures have been adopted by the Tribunal to assist applicants who are generally unrepresented. The assistance provided by staff of the Tribunal includes providing both written and oral information to applicants about the application and hearing process, gathering of professional reports prior to the hearing and the notification of parties to the proceedings. In many cases, as in this one, arrangements are made for parties to attend the hearing by telephone. Callers from the country or outside of Western Australia can call the Tribunal for information for the cost of a local call. The Tribunal's hearings are inquisitorial and informal, and parties are assisted with plain English explanations of the legislation and the process.
In LC and JS, the Member, drawing from cases in other jurisdictions, identified factors which might justify the making of a costs order under s 16(4) of the GA Act. This list is not exhaustive, but I agree that the identified factors provide a useful starting point for consideration of whether the Tribunal should exercise its discretion to order that the represented person pay another party's legal costs.
The factors include:
•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.
In IO Ex parte VK [2008] WASAT 8, the Tribunal ordered that some of the costs incurred by an applicant daughter should 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, and she needed assistance in the presentation of the application by her legal representative. The Tribunal found that, because of the conflict in the evidence about the capacity of the proposed represented person; the legal complexity in relation to a transfer of his land, which was the reason for the applications being made; allegations of financial abuse and the conflict between his daughters, legal representation was warranted and a costs order should be made in favour of the applicant.
In the present case, although there was some risk identified in the represented person's living situation (and, as a result, the Tribunal listed the application urgently), the case was simple and uncontested. The applicant was the only son of the represented person, and the evidence of incapacity of the represented person was clear and unchallenged.
The medical evidence from a consultant geriatrician supported by the Aged Care Assessment Team social worker is that the represented person suffered moderately severe dementia. The professional reports of the doctor and other service providers indicate recognition of and support for the role played by the son in support of his mother. Some antagonism to the son from the represented person is noted in the reports but the professionals explain this as part of the dementing process, which unfortunately had been associated with behavioural issues for the represented person. The doctor in his report stated that the represented person could make no contribution to the hearing because of her dementia, and she did not attend.
Additionally, the applicant son is the donee of the represented person's power of attorney executed in 2001. This is relevant in that it indicates that the wishes of the represented person were that her son helps her with the management of her affairs when she was capably able to express those wishes.
The Tribunal also heard from the sister‑in‑law and niece of the represented person, who participated by telephone, and both supported the appointment of the applicant son as guardian.
Because the applicant was suitable and willing to be appointed as guardian and was the only person proposed for appointment, having determined that there was a need for the appointment, the applicant was the only possible appointment as guardian: see s 43(5) of the GA Act.
In respect of the participation of the represented person's sister‑in‑law and the niece in the hearing, it should be noted that these parties were not identified in the original application submitted but were referred to in the professional reports obtained by the Tribunal. They were both subsequently notified of the hearing by Tribunal staff and indicated their wish to participate in the hearing. This is an example of the way in which the Tribunal is able to assist applicants where applications are incomplete or require clarification.
In any consideration of a costs application of this nature, there must be consideration of whether representation is necessary in the circumstances and whether the costs claimed reflect legal work properly undertaken in the circumstances of the case.
In the present case, it is understood the applicant lives in the Northern Territory and has periods of time working offshore, and it may be for this reason that he believed legal representation was necessary to ensure that his application was argued before the Tribunal. It was also said that he could not get legal advice in the Northern Territory and, as with most applicants, was unfamiliar with the Tribunal's processes. However, given the uncontested nature of the application, the lack of conflict in the evidence and the support for his appointment by both the professionals and other family members who participated in the hearing, no complex legal or other issues arose in this matter which required the applicant to be legally represented. The provision of telephone conferencing enabled the applicant to appear and speak directly to the Tribunal, which he did without any difficulty. That the hearing of the application took under one hour (41 minutes) reflects the straightforward nature of the matter. The legal costs claimed in these circumstances appear high. This is especially so since the long‑established procedures within the Tribunal provide for the collection by staff of the Tribunal of all the necessary medical and other professional reports to support applications made under the GA Act. Legal practitioners familiar with the Tribunal and with the guardianship jurisdiction in particular will be aware of the routine support given to applicants by the Tribunal's staff.
The applicant acted in his mother's best interests in bringing the application to the Tribunal, but this is not sufficient to warrant the making of a costs order in the amount claimed, as these costs are excessive in the circumstances. However, given the applicant's employment arrangements, there was a risk that he may not have been able to be contacted by the Tribunal at the time of the hearing. Because of this, an allowance for attendance by the solicitor at the hearing and for two hours of preparation time totalling $810 is ordered to be paid from the estate of the represented person.

Order

The Tribunal orders as follows.
1.Legal costs of the applicant up to an amount of $810 to be paid from the estate of the represented person.

I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER