Re WA And IA Ex Parte AA And JA - [2011] WASAT 33

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE WA AND IA EX PARTE AA AND JA [2011] WASAT 33

MEMBER: MS F CHILD (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)
MS R CARROLL (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 25 FEBRUARY 2011

FILE NO/S: GAA 2473 of 2010
GAA 2474 of 2010
GAA 2956 of 2010
GAA 2475 of 2010
GAA 2477 of 2010
GAA 2954 of 2010
GAA 2955 of 2010

BETWEEN: AA
JA
Applicants
AND
BA
Respondent

Catchwords:

Guardianship and administration - Applications for orders for guardianship, administration and intervention in enduring powers of attorney and guardianship - Applications withdrawn at hearing - Application for costs under s 87(2) of the State Administrative Tribunal Act 2004 (WA) and s 16(4) of the Guardianship and Administration Act 1990 (WA) - Factors to be considered in determining costs applications - Whether Tribunal should depart from the rule that parties bear their own costs - Whether the applications were properly made and pursued - Whether the applications were made for an improper purpose - Whether the costs of parties should be paid from the estates of the proposed represented persons - Contribution to the legal costs ordered to be paid by the applicant for orders

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 16(4), s 43, s 64
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(1), s 87(2)

Result:

Costs order made

Category: B

Representation:

Counsel:

Applicants: Mr C Touyz
Respondent: Self-represented

Solicitors:

Applicants: Hammond King Touyz
Respondent: Self-represented

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

BMD and JDN and KWD [2009] WASAT 132
IO Ex parte VK [2008] WASAT 8
J & P Metals Pty Ltd and Shire of Dardenup [2006] WASAT 282 (S)
KS [2008] WASAT 29
LC and JS [2007] WASAT 127
M [2008] WASAT 262 (S)
MK and GSK [2009] WASAT 257
Pearce & Anor and Germain WASAT [2007] 291
PJC and RJC [2008] WASAT 224
Robinson and Corse Library 980 429
Summerville and Department of Education and Training & Ors [2006] WASAT 368 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

AA and JA sought payment of their legal costs incurred in respect of a number of applications made by their sister, BA, to the Tribunal seeking orders for their elderly parents, WA and IA, under the Guardianship and Administration Act 1990 (WA). The applications were withdrawn by BA at the hearing.
AA and JA argued their legal costs for advice and representation before the Tribunal should be paid either by BA or by their parents. In the first instance, they argued that BA should meet their costs, because the applications were unjustified and because of the way BA conducted the matter before the Tribunal. In the alternative, they said that their costs should be met by their parents, because their costs were incurred in resisting the applications, which was consistent with the wishes of WA and IA and in their best interests.
Their amended costs claim is $11,000.
The Tribunal dismissed the application for the payment of costs by WA and IA. Some of the costs claimed were ordered to be paid by BA; AA and JA had incurred considerable legal expenses through the unreasonable actions of BA in relation to their father, WA, and they should receive compensation, in part, for some of that expenditure.

Background

BA made applications to the Tribunal in August 2010 seeking orders for the appointment of herself as guardian and administrator of the estates of her elderly parents, WA and IA. On 12 October 2010, the day before the hearing of those applications, BA made further applications for orders revoking Enduring Powers of Attorney (EPAs) and Enduring Powers of Guardianship (EPGs) made by WA and IA on 15 July 2010, by which they appointed AA as attorney, and AA and JA jointly as enduring guardians.
In her applications for guardianship and administration, BA made a number of serious allegations about AA's conduct of their parents' financial and personal affairs. For example, her application states:
I suspect my Brother is abusing both his Power of Attorney and his Power of Guardianship.
The applications were described as urgent because BA alleged:
… my Brother & his wife & now my Sister are keeping Mum and Dad under House arrest on the pretext that they are there to look after their health.
AA was alleged to be the author of new wills (for their parents) and to have included himself as a beneficiary. The applications allege that AA had 'organised for himself to be their enduring power of attorney … also a beneficiary of their will as well as an executor of their will as well as having enduring power of guardianship'. He was said to be 'locking mum in his house and disallowing her to go with her daughter to visit her husband'. He was said to have 'allocated to himself another 20% of their assets as well as 16% for his children' and to be 'standing over' their father in relation to the signing of the will. The words 'fraudulent action' were used by BA in relation to the execution of the new will. Her application refers to the need for a 'safe house' for their mother. She alleged AA was an alcoholic.
AA and JA obtained legal advice about the applications. In documents submitted to the Tribunal, it is shown that AA and JA entered into a costs agreement on or about 22 September 2010 with solicitors in relation to the matter, having been advised that costs incurred could be between $8,000 and $16,000.
When the applications came on for hearing on 13 October 2010 in compliance with the principles of the GA Act as provided for in s 4, the Tribunal heard directly from WA and IA as to their wishes regarding the applications. They both made clear their opposition to the applications and their wish that AA continue to manage their affairs.
The Tribunal set out the statutory tests for the appointment of a guardian and an administrator and invited BA to withdraw her applications for the appointment of guardians and administrators for her parents, advising that, in light of the medical evidence currently before it, the Tribunal would likely find that the presumption of capacity of both WA and IA had not been displaced.
BA also withdrew her applications for intervention in the EPAs and EPGs.
Following the withdrawal of the applications, AA's and JA's solicitor sought payment of their legal costs from BA or, in the alternative, from WA and IA, and provided written submissions in support of their applications. The representative of the Public Advocate opposed the proposal that WA and IA meet the legal costs. The application for costs was adjourned by the Tribunal to allow the amount claimed to be settled and for BA to make written submissions.
BA's written submission in response to AA'S and JA's applications for costs was received on 17 November 2010. A final written submission regarding the application of the Legal Practitioners' (State Administrative Tribunal) Costs Determination 2010 (Costs Determination) was received from AA's and JA's solicitors on 22 November 2010. The decision on the application for costs was reserved. These written reasons provide the decision on the application for costs.

Costs - legislative framework

The determination of costs applications is at the discretion of the Tribunal within the framework of the State Administrative Tribunal Act2004 (WA) (SAT Act) and the enabling Act, in this case, the Guardianship and Administration Act1990 (WA) (GA Act). The relevant provisions are:

SAT Act

87. 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.
(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.

GA Act

Section 16(4) of the GA Act provides:
…
(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.
(5)Nothing in this section limits any other power of the State Administrative Tribunal under the State Administrative Tribunal Act 2004.

Submissions of AA and JA for payment of their legal costs

AA and JA argue that their legal costs incurred in seeking advice in connection with the applications and representation before the Tribunal ought to be paid, in the first instance, by BA, pursuant to s 87(2) of the SAT Act, or in the alternative, pursuant to s 16(4) of the GA Act), by WA and IA.
In respect of the s 87(2) submissions, it is argued BA should bear the legal costs, as her applications were not founded on a reasonable belief, objectively grounded, that WA and IA were persons no longer capable of managing their affairs.
It is submitted that BA had notice of the medical evidence that did not displace the presumption of capacity of her parents. Further, that BA had opportunities to decide not to proceed with the applications when she became aware of the opinion of Dr W, her parents' general practitioner, that both her parents had testamentary capacity. The letters from Dr W were sent to the solicitor from whom BA sought advice on 6 August 2010. It is also submitted that she saw the reports of other doctors to the effect that orders for administration or guardianship orders were not needed for their parents, and that she failed to give proper attention to the basis of the applications for administration and guardianship.
AA and JA assert that the applications were based on the premise that their mother, IA, suffered shortterm memory problems, and allegations against AA were 'sheer conjecture or unfounded allegations' and were unsupported by medical or other evidence. They assert that the orders sought by BA were 'far reaching to appoint BA as the sole administrator' and to revoke the EPAs and EPGs executed by WA and IA.
AA and JA say that, at the hearing, BA did not dispute that her parents could look after their own affairs. It is submitted that BA should have abandoned her applications when 'she became aware of the medical evidence that her parents had full capacity to make their own decisions'.
It is submitted by AA and JA that the primary purpose of BA in making the applications and pursuing them was to have her parents change their wills to the benefit of BA. It is said that BA's applications were launched shortly after she became aware of the contents of her parents' wills and that she appeared to be unhappy with the provisions. It is argued that the applications were misconceived and primarily motivated, if not entirely motivated, by BA's own selfinterest and, on this basis, that the applications were brought for an improper purpose and are an abuse of the Tribunal's process.
On AA's and JA's submission, the fact that BA did not abandon her applications and on 12 October 2010 the day before the hearing of the applications for the appointment of guardians and administrators for her parents made further applications that their EPAs and EPGs be revoked, illustrates the unreasonable manner in which BA conducted herself.
AA and JA argue they were justified in strenuously opposing the applications and incurring legal costs to do so.
In their submissions, the Tribunal is referred to the case of Summerville and Department of Education and Training & Ors [2006] WASAT 368 (S) (Summerville) in respect of the considerations for the awarding of costs:
… in relation to the question of an incredible or implausible case that has no foundation in fact, or a case that is adjudged as being so weak that it should not have been maintained, the relative weakness of the unsuccessful party's case has also resulted in the award of costs against that party: see Gonsalves v MAS National Apprenticeship Services [2007] VCAT 64 …
His Honour, Justice Barker, goes on to say:
… proceedings that should not have been maintained against a party because there really was no case to answer, is a fact that may be taken into account by this Tribunal in deciding whether to award costs against the unsuccessful party who maintained that case.
There is also reference to the case of PJC and RJC [2008] WASAT 224 (PJC). In that case, a costs order was made against the applicant son, as he had maintained his applications for the appointment of a guardian and an administrator for his father when he was aware of medical evidence which assessed PJC as capable. The Tribunal found that, although applications might in some circumstances be exploratory in nature, an applicant has a responsibility to consider the substance of (and intent behind) the application that he or she is making before proceeding with the application [at 56].
In respect of the submission pursuant to s 16(4) of the GA Act that costs be paid out of the estate of WA and IA, AA and JA refer to the merits of the application. This is understood by the Tribunal to refer to the material submitted to the Tribunal on behalf of AA and JA in response to the applications. As we understand the submission, AA and JA acted in the best interests of their parents by taking all the steps necessary to resist the applications because, first, the presumption of capacity had not been set aside, and second, because WA and IA had made their choice of attorneys and enduring guardians, these existing arrangements provided less restrictive alternatives to the making of orders. For these reasons, it is said to be appropriate that an order be made that AA'S and JA's costs be paid out of the estate of WA and IA.
Finally, the submission is made that the Costs Determination, which came into effect on 1 October 2010, and the earlier Costs Determination of 2008 (which applied to that part of the costs incurred prior to 1 October 2010) do not override the 'entitlement to costs where there is a written agreement'. In this case, AA and JA entered into a written agreement on or around 20 September 2010.

BA's response

In response to the application for costs, BA filed submissions prepared pro bono by Mr Garnsworthy.
The submission refers to s 87 of the SAT Act and the starting point that parties bear their own costs, although the Tribunal may make orders where it is appropriate to do so.
Reference is made to J & P Metals Pty Ltd and Shire of Dardenup [2006] WASAT 282 (S) (J & P Metals) where his Honour, Judge Chaney, as he was then, stated at [38]:
The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. The Tribunal strives to ensure that its procedures are proportionate to the nature of the matters in issue. On occasions, matters before the Tribunal are difficult and complex, sometimes involving lengthy hearings. This is not such a matter. In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceedings in a way that minimises costs to their clients. …
It is submitted, on behalf of BA, that the application for costs presents unusual features in that findings were not made on the facts concerning the applications by the Tribunal. The proceedings were terminated by BA withdrawing all applications at the hearing. BA was not represented, although she had the benefit of some advice, and it is submitted that she did not understand the threshold considerations applying to the applications.
BA submits that the Tribunal has no evidence that her submissions and applications were based on her disappointment at changes to her parents' wills, and refers to the Public Advocate's written report that 'both parties appear to have the best interests of their parents at heart … ' (at page 4).
It is submitted that if the Tribunal were to make a costs order, the costs scale should be of assistance to the Tribunal as to the appropriate charging rate. It is submitted that costs ought only to be ordered on an indemnity basis in exceptional circumstances. Reference is made to Anderson J in Robinson and Corse (unreported, Supreme Court Library No 980 429) about the way parties choose to conduct litigation.
… Whilst a litigant may, in his own interests, not wish to go to court leaving any stone unturned in the preparation of his case, that, of itself, does not make the work done to achieve that end either necessary or proper. …
It is submitted that the affidavits filed by AA and JA do not reflect the approach suggested in J & P Metals for the minimisation of costs. Challenge is also made to the time cost basis claim. Issue is also taken with particular charges in relation to the conduct of the matter by AA's and JA's solicitor.
BA submits that the case of PJC can be distinguished based on a number of 'facts and the class of proceedings' in this case. Firstly, the present proceedings ended at the first hearing, which was not the case in PJC. Secondly, the principles applying to a case involving sexual discrimination are not applicable to the proceeding (this is understood to be a reference to Summerville). Thirdly, it is argued that it would be difficult to make out the assertion that the proceedings were taken lightly by BA. It is said that BA clearly did not understand the preliminary test (for the appointment of a guardian and administrator) but that the report asserting capacity is brief and does not set out any detailed basis for its conclusion. Fourthly, the withdrawal of the applications for intervention in the EPAs did not depend on the capacity of WA and IA. These were withdrawn, without BA understanding this. This factor is said to support the argument that BA properly responded to the concerns drawn to her attention by the Tribunal.
Finally, it is submitted that the proposition that AA's and JA's costs be paid out of the estate of WA is not supported by any authority.

Reasons of the Tribunal

The s 87(2) claim

Section 87(1) of the SAT Act establishes that the starting point in proceedings before the Tribunal is that parties bear their own cost. In decisions of the Tribunal in GA Act matters and in other jurisdictions of the Tribunal, (see, for example, J & P Metals), costs applications are considered within the context of the obligations of the Tribunal to act speedily and with as little formality as is practicable, and minimise costs to the parties, consistent with the obligations and objectives of the Tribunal as set out in s 9 of the SAT Act.
Although the Tribunal has a broad discretion to award costs, in the appropriate case, under s 87(2) of the SAT Act, it will need a good reason to depart from the general principle in s 87(1) of the Act. There is no statutory (or other) entitlement to costs.
In respect of the present application for costs, the first question is: why should the Tribunal depart from the principle in s 87(1) of the SAT Act?
In Pearce & Anor and Germain WASAT [2007] 291, Chaney J considered the exercise of the discretion in s 87(2) of the SAT Act:
In Summerville, Barker J observed that s 87 does not identify factors to be taken into account by the Tribunal in exercising its jurisdiction under s 87(2), and it is not appropriate for the Tribunal to attempt finally to delineate the particular circumstances in which the discretion to award costs will be exercised. Costs orders have most commonly be [sic] made in the Tribunal in circumstances of the type identified by Deputy President Judge Eckert in Chew and DirectorGeneral of the Department of Education and Training [2006] WASAT 248 at [85], being circumstances where a party has conducted itself unreasonably or inappropriately, particularly where that conduct gives rise to unnecessary costs being incurred by the other party.

AA and JA, applicants for costs, argue that BA should pay costs because of the way she conducted the proceedings, in that the applications were brought for a purpose not connected with the management of her parents' affairs they were, in effect, an abuse of process and that she should have abandoned the proceedings when she became aware that her parents had 'testamentary capacity'. Further, it is said the very serious allegations made about AA by BA were 'sheer conjecture' and 'unfounded'.
Proceedings brought in the Tribunal pursuant to the GA Act often involve bitter family conflict, lack of understanding of the relevant legislation by the parties, serious allegations of improper and sometimes criminal conduct, and ambiguous, uncertain or contested medical evidence. The question is - what distinguishes this case from others such that a costs award should be made?
Dealing first with the presumption of capacity of IW and WA and whether BA should have abandoned the applications on notice of Dr W's letters; although the letters were from their longterm general practitioner (a fact wellknown to BA), the letters were brief. More importantly, the Tribunal notes that 'testamentary capacity' does not equate with the tests for the appointment of a guardian and an administrator which are set out in s 43 and s 64 of the GA Act. It may be that a person for whom the Tribunal finds it can make a guardianship or administration order will nevertheless be judged capable of making a will.
The other medical evidence before the Tribunal in respect of WA was unequivocal; that is, that he is able to make decisions for himself. BA herself conceded this in the hearing. In BA's application to the Tribunal in respect of WA, she makes the statement that WA does not understand the seriousness of the allegations she has made (about AA). It seems clear from this that BA has discussed the matters with WA, knew of his longstanding relationship with AA for the management of his affairs, and yet has proceeded with the applications despite WA's opposition.
In respect of IA, the position is less clear. Dr W (who has known IA for 19 years) noted in his report to the Tribunal dated 28 August 2010 that IA had some 'shortterm memory loss' but that she had an 'MMSE [score] of 27 in the last year' and that IA was 'appropriate in responses'. Dr W considered that IA was capable of making reasonable decisions about her person and her estate. However, a report dated 10 September 2010 from Dr D (a general practitioner who had known IA only five weeks) reported shortterm memory loss and a cognitive impairment which was said to be slowly progressive. Dr D was 'unsure' whether IA could make reasonable judgments about her estate.
Although, had BA pursued the applications, the Tribunal may have made the finding that the presumption of capacity had not been displaced, it equally may have adjourned the hearing for a specialist capacity assessment of IA, as has occurred in other proceedings before the Tribunal. In any event, BA did not see the reports prepared for the Tribunal prior to the hearing, as her application for inspection was only made on 13 October 2010 the morning of the hearing and was not pursued. It was only after the withdrawal of her applications that Mr Garnsworthy, in assisting BA to prepare submissions in response to the claim for costs, obtained the documents, having given the usual undertakings sought from solicitors regarding release of documents from the Tribunal filed for proceedings under the GA Act.
The jurisdiction of the Tribunal to intervene in an EPA does not require a finding of incapacity of the donor (see KS [2008] WASAT 29) so that this part of AA's and JA's argument does not apply to the applications filed on 12 October 2010, which BA also withdrew.
Having had the tests in s 43 and s 64 of the GA Act explained to her in the hearing, BA acknowledged that her parents were capable of managing their personal and financial affairs. If this had always been her view, it may be that BA misunderstood the GA Act provisions for the appointment of a guardian and an administrator, as other applicants before the Tribunal have done on other occasions, or that AA's and JA's contention that the applications were brought for another purpose is correct, or the reality may be a combination of both.
The case of PJC is cited in support of the claim for costs because, in that case, an award was made in circumstances where proceedings were pursued when the applicant had notice of capacity of the proposed represented person. That case can be distinguished on its facts; only applications for guardianship and administration were before the Tribunal in that case; the Tribunal itself wrote to the applicant son advising him of the content of a number of medical reports which had been provided by the proposed represented person, including from his longterm general practitioner and two psychiatrists, which confirmed his capacity to conduct his affairs. The member also noted that the applicant had confirmed he had not had personal contact with his father for 13 years and the applications had been brought against a background of long running litigation in the Supreme Court between the applicant and his father, the proposed represented person. The member found that the applicant believed orders in the Tribunal would assist him with that litigation.
In relation to the allegations made by BA about AA's conduct, as noted, these were wide ranging and very serious. The withdrawal of the applications by BA means that the Tribunal has not made findings about these allegations. It is understood that the withdrawal of the applications without determination of the validity of the allegations must be frustrating for AA. Having said that, orders may be, and frequently are, made by the Tribunal, notwithstanding that serious allegations have been made about a person where it is not necessary for the proceedings to make any adverse findings about that person. The Tribunal simply needs to be satisfied that the statutory tests in the relevant case are met.
However, in this case, the nature of the allegations made by BA about him warranted AA seeking legal advice and representation to respond to them.
In the leadup to the hearing, all matters were in issue: the threshold question of capacity of their parents; the need for orders, and as part of this question, the existence of the EPA and EPGs in favour of AA and JA and the conduct of the affairs of their parents. If the matters had proceeded to full hearing, consideration of these issues might have led to findings about the conduct of AA relevant to his parents' affairs. In this circumstance, he felt the need to prepare for the examination of all of these issues at the anticipated hearing. Against that is the argument that AA and JA knew the Office of Public Advocate was conducting an investigation of the applications, and had advised that office of their position and supplied material to assist in the investigation, that BA was known to be unrepresented and that the Tribunal, as part of its normal processes, would gather the medical and other professional evidence.
It is in these circumstances that AA and JA incurred legal costs in anticipation of defending their position as donees of the EPAs and EPGs of their parents. None of the allegations made by BA was tested at the hearing and in the material and submissions she put to the Tribunal, and BA advanced no evidence in support of these serious allegations other than her own beliefs. In this sense, in respect of the extremity of the allegations made about AA, we find that BA acted unreasonably in the conduct of the proceeding before the Tribunal. Additionally, in the continuation of the applications in respect of WA, we consider that she acted unreasonably and inappropriately so that payment of some of AA's and JA's costs in respect to the guardianship and administration applications made in respect of WA by BA is justified. In respect of the applications made in relation to IA, it is not possible to conclude that no reasonable person would have continued the applications before the Tribunal, and the amount ordered in the costs order reflects this conclusion. In relation to the further applications filed on 12 October 010 in respect of WA and IA, we consider that the legal work in relation to the original applications had substantially been completed and that no additional allocation of costs should be made in respect of these applications.

Section 16(4) application

The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs. That provision must be read with s 87(1) of the SAT Act; that the starting position is that parties bear their own costs (see M [2008] WASAT 262 (S) at [66]). The GA Act contained a similar provision until repealed when the guardianship and administration jurisdiction was brought into the Tribunal from 24 January 2005.
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 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 intended to be exhaustive and it should be clear that the exercise of discretion of the Tribunal to award costs in this particular case is not limited by this criteria. The identified factors simply provide a useful starting point for consideration of whether the Tribunal should exercise the 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.
Awards of costs pursuant to s 16(4) of the GA Act are not common. They have generally been made when the application for costs is made by the applicant in the substantive application (although there are some exceptions, as seen below) and the Tribunal finds that the represented person benefitted by the applications being made and protective orders made. Some published examples follow:
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. 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 from him to another daughter who held his EPA (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 from the estate of the represented person should be made in favour of the applicant.
In BMD and JDN and KWD [2009] WASAT 132, some of the legal costs of the applicant children were ordered, as the Tribunal found that they had acted in their father's best interests in bringing the application in a case where the father had disposed of a major asset and the applicants sought the setting aside of that contract. Of $23,579.50 costs claimed, $5,000 of the applicants' costs were awarded from the estate of the represented person.
An example where some of the costs of a nonapplicant (in respect of the substantive matter) were ordered to be paid out of the estate is the case of MK and GSK [2009] WASAT 257, which involved an application for appointment of a guardian and an administrator made by a medical practitioner. The children of the proposed represented person obtained legal advice and representation in relation to his interests in respect of the breakdown of the marriage with his spouse and primary carer. The Tribunal found that the 'living arrangements' of the represented person in that case (the represented person and his estranged spouse were living separately and apart under the one roof), the concurrent family law proceedings, the volatility of his relationship with the estranged spouse and the deteriorating relationship between the estranged spouse and the children of the represented person justified the children seeking legal advice and 'create[d] an unusual and complex set of circumstances that justifie[d] the exercise of its discretion under s 16(4) of the GA Act' [at 22]. The claim of $8,321.88 was adjusted in line with the Costs Determination applicable at the time and was further reduced for costs of the legal representation at the hearing the Tribunal considered unnecessary. $5000 was ordered to be paid from the estate of the represented person.
In the present case, the applicants for costs did not bring the applications concerning their parents. There is no suggestion by them that WA and IA were at risk; there was significant conflict between the parties, and the applications were made against a background of revoked EPAs and newly executed EPAs and EPGs, but there was no real complexity in the facts or the applicable law. Very serious allegations had been made by BA about AA with no documentary evidence to support them and, in these circumstances, AA was justified in seeking advice, but the facts of the case do not support the exercise of the discretion in s 16(4) to order that AA's and JA's costs be paid by WA and IA.

Conclusion

For the reasons given, no costs order is made, pursuant to s 16(4) of the GA Act.
For the reasons given, BA is ordered to pay part of the costs claimed by AA and JA in respect of the applications made for WA, pursuant to s 87(2) of the SAT Act. In relation to the quantum of costs, we award $3500. The Tribunal considers that the amount claimed is excessive and that a proportion of the costs relating to IA are not recoverable. AA and JA were justified in seeking advice and assistance to respond to the applications. The amount ordered reflects the costs incurred in taking advice about the applications and the initial enquiries made.

Orders

Pursuant to s 87(2) of the State Administrative TribunalAct 2004 (WA). BA is ordered to pay $3500 as a contribution to the legal costs incurred by AA and JA in respect of the applications she made to the Tribunal.

I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER