RK - [2020] WASAT 53 (S)

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RK [2020] WASAT 53
MEMBER: JUSTICE PRITCHARD, PRESIDENT
MR J MANSVELD, MEMBER
DR F NG, SENIOR SESSIONAL MEMBER

HEARD:   8 MAY 2020
DELIVERED          :   8 MAY 2020
PUBLISHED           :   15 MAY 2020
FILE NO/S:   GAA 1123 of 2020

RK
Represented Person

Catchwords:

Guardianship and administration - Review by Full Tribunal of determination of single Member to appoint Office of the Public Advocate as guardian - Whether represented person requires guardian - Whether in best interests of represented person that family member be appointed as guardian - Suitability of family members to be appointed as guardian - Where significant family conflict - Whether plenary or limited guardian to be appointed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A(1), s 43, s 44
State Administrative Tribunal Act 2004 (WA), s 27(1)

Result:

Limited guardian appointed

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	Mr R Graham
Fifth Interested Party	:	Mr R Graham
Sixth Interested Party	:	Ms M Kershaw
Seventh Interested Party	:	Ms M Kershaw

Solicitors:

Represented Person	:	N/A
Applicant	:	Vogt Graham Lawyers
Fifth Interested Party	:	Vogt Graham Lawyers
Sixth Interested Party	:	Kershaw Legal
Seventh Interested Party	:	Kershaw Legal

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms AW has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal on 4 March 2020 (Original Decision) in respect of Mr RK (Review Application).
In the Original Decision, the learned Member declared that RK was incapable of looking after his own health and safety; unable to make reasonable judgments in respect of matters relating to his person; in need of oversight, care or control in the interests of his own health and safety; and in need of a guardian. The Member appointed the Office of the Public Advocate (Public Advocate) as the limited guardian for RK, with the functions of deciding where RK is to live; to decide with whom he is to live; to make treatment decisions for him; to determine what contact he should have with others; and to determine the services to which he should have access.
RK is married to Ms CM. They have three adult children: Ms AW, Mr LK, and Ms TK.
In the Review Application, AW contended that RK has the ability to make his own decisions, so that RK does not need a guardian, that less restrictive decision making options other than the appointment of a guardian should have been more thoroughly explored, and that if a guardianship order is required, she and LK should be appointed joint guardians or, if joint guardianship is not possible, she should be appointed the sole guardian for RK. LK supported the Review Application.
By the date of the hearing, none…

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 RK

Details

AGLC: RK [2020] WASAT 53
Case: [2020] WASAT 53 (S)
Decision Date: 8 MAY 2020

CaseChat Overview and Summary

In the matter of RK, the Full Tribunal of the Guardianship and Administration Board of Western Australia reviewed a decision made by a single member regarding the appointment of a guardian for an individual under the Guardianship and Administration Act 2000 (WA). The key issues revolved around whether the represented person required a guardian, the suitability of family members to be appointed, and the type of guardianship to be ordered given the significant family conflict. The Full Tribunal had to determine whether a plenary or limited guardian should be appointed.

The court addressed the issue of costs under s 16(4) of the Guardianship and Administration Act 2000 (WA), highlighting the inquisitorial nature of proceedings under this Act. It was noted that the Tribunal has the authority to order costs to be paid by the represented person or their property, reflecting the public policy of the Act to facilitate access to the Tribunal by any person to ensure assistance is provided to those in need. The court also emphasised the broad discretion of the Tribunal in determining the quantum of costs, taking into account the represented person’s ability to pay, the role of parties in the proceedings, and the complexity of the case. The court underscored that an award of costs should not adversely impact the well-being of the represented person, especially if they are dependent on a disability or aged pension.

The Full Tribunal concluded that the single member’s decision to appoint the Office of the Public Advocate as the guardian was appropriate. However, it was determined that the costs of the proceedings should be paid by the represented person. The Full Tribunal exercised its discretion, considering the represented person’s ability to pay and the overall best interests of the represented person.

The Full Tribunal ordered that the costs of the proceedings be paid by the represented person, RK, from their assets. The costs were to be determined by the Registrar of the Tribunal, taking into account the factors outlined in the decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

Secondly, s 16(4) of the GA Act permits that the Tribunal order the costs of a party to be paid by, or out of the assets of, the RP or PRP. That power reflects the fact that proceedings under the GA Act are not conducted on an inter partes, adversarial, basis, but rather are inquisitorial in nature. The PRP very often does not, and may not be in a position to, play an active role in the proceedings. The grant of power to the Tribunal to require that the costs of a party be paid by, or out of the assets of, the RP or PRP, is consistent with the fact that the jurisdiction conferred under the GA Act is to be exercised in the best interests of the RP, or PRP. That power also reflects the public policy underlying the GA Act which is to permit applications to the Tribunal to be made by any person, so as to ensure that those adults who need assistance in their personal affairs, or in the administration of their estates, are able to obtain that assistance through the appointment of a guardian or administrator by the Tribunal,[44] and on the basis that in an appropriate case, it is the RP or PRP who should bear the costs of such applications, which are to be dealt with in their best interests.[45][44] GA Act, long title.[45] Cf Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 [43], [44] (EM Heenan J). Thirdly, s 16(4) of the GA Act indicates that the amount of costs which may be awarded should be 'such costs relative to those proceedings as the [Tribunal] thinks fit'. The award of costs is thus not referable solely to the costs incurred by that party[46] (although clearly the costs awarded could not exceed the costs actually incurred by a party, consistent with the compensatory nature of costs orders made by the Tribunal).[47] Rather, those words confirm the Tribunal's wide discretion to award 'such costs'- namely an amount of costs - 'relative to' the proceedings. The words 'relative to' mean 'having reference or regard to'; 'relevant or pertinent to'; and 'correspondent; proportionate'.[48] The words 'relative to' thus direct the Tribunal's attention to matters such as the role or contribution played in the proceedings by the party seeking costs, the role of other parties to the proceedings, the complexity of the proceedings, and the best interests of the RP or PRP, including their ability to pay an award of costs. The latter is an important consideration in respect of the quantum of costs. Many RPs or PRPs do not earn income, and are not in a position to do so. For many, their only source of income is a disability or aged pension. It would be antithetical to the best interests of the RP or PRP (and, therefore, contrary to s 4(2) of the GA Act) for an award of costs to be made in such a quantum as to adversely impact on their well-being. That is not to suggest that costs will more readily be awarded in the case of RPs or PRPs who are wealthy, but rather to acknowledge that a positive exercise of discretion in favour of an award of costs to be paid by an RP or PRP is less likely if the RP or PRP does not readily have any means to pay such costs.