SJT
[2025] WASAT 62
•3 JULY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SJT [2025] WASAT 62
MEMBER: MS V HAIGH, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 3 JULY 2025
FILE NO/S: GAA 6017 of 2024
SJT
Represented Person
SERVICE PROVIDER
Applicant
Catchwords:
Guardianship and administration - Applicable principles to exercise of discretion to grant extension of time within which to lodge costs application - Whether conduct of Service Provider justifies departure from the starting position that parties bear their own costs - Whether Service Provider should be awarded costs of responding to parties' cost application
Legislation:
Guardianship and Administration Act 1990 (WA), s 40, s 112
Legal Profession (State Administrative Tribunal) Determination 2024 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(1), s 87(2), s 92(1)
State Administrative Tribunal Rules 2004 (WA), r 42A
Result:
Parties refused an extension of time within which to lodge costs application
Parties' costs application dismissed
Service Provider's costs application allowed in part
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Di Virgilio v McCleary [2012] WASC 437
GB [2020] WASAT 61 (S)
Lee and Pharmacy Board of Australia [2021] WASAT 132 (S)
PHQ and LPQ [2015] WASAT 5
PJC and RGC [2008] WASAT 224
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter concerns two costs applications.
Before I turn to deal with the costs applications I provide the following background in respect of the substantive application.
On 15 November 2024 [Service Provider] made an application pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) for the appointment of a guardian and administrator for SJT. [Service Provider] was legally represented.
SJT's siblings NS, AT, ST and DT were joined as parties to the proceedings. The siblings were legally represented.
A final hearing was conducted on 22 January 2025 and orders were made that day:
•appointing the Public Trustee as the administrator for SJT with a $500 per annum gifting authority; and
•appointing ST as limited guardian in respect of accommodation decisions, treatment decisions, services decisions and NDIS restrictive practices decisions.
Both guardianship and administration orders are to be reviewed before 22 January 2030.
The costs applications
On 14 February 2025 SJT's siblings made an application for costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) seeking that their costs be paid by [Service Provider].
On 22 March 2025 [Service Provider] also made a costs application seeking their costs of defending the siblings' costs application.
I made programming orders pursuant to which the following were provided by the parties:
(a)the siblings' submissions dated 7 April 2025 and accompanying bill of costs dated 6 April 2025;
(b)[Service Provider's] submissions dated 24 April 2025 and accompanying bill of costs; and
(c)the siblings' responsive submissions dated 5 May 2025.
Further the Public Trustee provided a report to the Tribunal dated 17 April 2025, although their report is of no relevance to my consideration of the two costs applications given that the parties do not seek to recover costs from SJT's estate.
I ordered that the costs applications be determined on the papers, and my decision in respect of the costs applications was reserved on 8 May 2025.
The siblings' costs application
The siblings contend that an award of costs is warranted in this case because [Service Provider's] conduct was unreasonable and inappropriate and contributed to the siblings incurring otherwise unnecessary legal costs. They are claiming $11,049.50 in costs, inclusive of preparation of the costs application and submissions.
[Service Provider's] costs application
[Service Provider] contend that they ought to be awarded their costs of defending the siblings' costs application as it is unmeritorious and the siblings conduct in making and pursuing it is unreasonable. [Service Provider] contend that the siblings' conduct in advancing untenable grounds in support of the costs application, which [Service Provider] has had to respond to, is unreasonable, particularly in circumstances where [Service Provider] drew the siblings attention to relevant Tribunal decisions in early March 2025. [Service Provider] is seeking $3,274.70 in costs.
For the reasons that follow I dismiss the siblings' costs application and partially grant [Service Provider's] costs application.
Principles regarding costs
Section 87(1) of the SAT Act provides that unless otherwise specified in this Act, the enabling Act (in this case the GA Act), or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
Section 87(2) provides that 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. I pause to emphasise that the Tribunal's power under s 87(2) is discretionary.
The starting point under s 87(1) of the SAT Act is that each party is to bear its own costs (Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [50]).
The party seeking costs bears the onus of satisfying the Tribunal in relation to the exercise of its discretion; Questdale at [51].
In PJC and RGC [2008] WASAT 224 the Tribunal considered the exercise of the discretion to award costs under s 87(2) of the SAT Act stating at [58] that 'a fundamental element then, in the task for an applicant, is a need to have a reasonable belief, objectively grounded, that the person for whom protection is sought is no longer capable of managing his or her affairs'.
In PHQ and LPQ [2015] WASAT 5 at [33] the Tribunal stated that:
The Tribunal is likely to consider awarding costs in guardianship and administration applications where it appears that costs were unnecessarily incurred due to the unreasonable actions of the applicant, whether those actions are in pursuing an untenable application, initiating and pursuing an application for an improper purpose and/or generally acting in a way so as to disadvantage the proposed represented person such that they unnecessarily incur legal and other costs associated with the proceeding.
In Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85] the Tribunal stated that:
… the Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
In GB [2020] WASAT 61 (S) the Tribunal considered the principles in relation to the assessment of the quantum of costs at [58] - [61] in respect of an application made pursuant to s 87.
In summary the Tribunal approaches the task of fixing costs in a broad and relatively robust fashion.
An award of costs is not intended to be a full indemnity for the actual expenses incurred by a party to a proceeding. Further, the Tribunal must be satisfied that the claim is reasonable having regard to the matter before it.
The siblings' costs application
The siblings' costs application was made 23 days after the Tribunal's orders were made on 22 January 2025.
Rule 42A of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) requires that an application to the Tribunal for costs can be made within 21 days of the orders to which the application relates being made by the Tribunal.
The siblings' legal representative, in their letter of 14 February 2025, submit that the delay is very minor and due in part to the legal representative's misunderstanding that the timeframe to make an application for costs was 28 days as opposed to 21 days.
Section 92(1) of the SAT Act relevantly provides that the rules may provide for the Tribunal to extend the time limit for doing anything in connection with the proceeding.
The Tribunal therefore has a discretion to allow the siblings an extension of time within which to make their costs application.
The issues to be determined
Issue 1: Should I grant the siblings an extension of time within which to make their costs application?
Issue 2: Should the siblings be awarded their costs, and if so, what should those costs be?
Issue 3: Should [Service Provider] be awarded their costs of the siblings' costs application?
Issue 4: If the third issue is answered in the affirmative, what should those costs be?
Issue 1: Should I grant the siblings an extension of time within which to make their costs application?
The general principles which apply to the exercise of the discretion to grant an extension of time are set out by Hall J in Di Virgilio v McCleary [2012] WASC 437 (Di Virgilio), at [38] - [41]. They are, firstly, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is any arguable case and, fourthly, the extent of any prejudice to the respondent.
The first factor
In respect of the first of the four major factors referred to by Hall J in Di Virgilio, namely the length of the delay, the siblings' costs application was made two days after the time prescribed by r 42A. In my view this is a minor delay. In any event [Service Provider] do not take issue with the fact that the siblings' costs application was filed out of time, nor do they suggest that it ought to impact upon their costs application.
This factor is neutral in regard to whether an extension of time should be granted.
The second factor
In respect of the second of the four major factors, namely the reasons for the delay, the siblings' legal representative has effectively pleaded ignorance of the SAT Rules. Regrettable though this is, in my view, it was reasonable for the siblings to rely on their legal advisor and their representative's ignorance of the law should not be allowed to prevent the grant of an extension of time.
This factor is neutral in regard to whether an extension of time should be granted.
The third factor
I now turn to consider the third of the four major factors, namely whether the siblings have an arguable case for costs, or put another way, whether their application for costs has any merit.
The siblings submit that a costs order should be made against [Service Provider] because [Service Provider] acted unreasonably or inappropriately.
In summary the siblings say that the unreasonable or inappropriate actions of [Service Provider] comprised commencing the substantive application without informing the siblings first, not disclosing the siblings as SJT's relatives in the application, not disclosing the siblings as SJT's informal supports in their report, facilitating SJT's dismissal of her established supports whilst their application was pending determination by the Tribunal, threatening to call the police if SJT's brother attempted to take her to see a doctor, making exaggerated/scandalous claims about the siblings, being untruthful about the medical evidence, and maintaining that ST was an unsuitable person to be appointed as SJT's guardian.
There is nothing in the siblings' submissions that persuades me that these alleged unreasonable or inappropriate actions of [Service Provider] in any way caused the siblings to incur unnecessary legal costs. The siblings were entitled to engage legal representation. I am not persuaded that they incurred legal costs due to any of these alleged actions by [Service Provider] beyond what they would have incurred in having legal representation throughout these proceedings. Put another way, I am not persuaded that [Service Provider's] conduct in any way caused the siblings to incur unnecessary legal costs.
In my view, the siblings have no arguable case for costs. Their application for costs is devoid of any merit.
The third factor in Di Virgilio weighs against the grant of an extension of time in this case.
The fourth factor
In respect of the fourth factor, namely the extent of any prejudice to [Service Provider] by an extension of time, no submissions have been made by [Service Provider]. But the delay was so short, that there was no significant prejudice to [Service Provider]. In any event 'the mere absence of prejudice is not enough to justify the grant of an extension' (Di Virgilio at [42]).
This fourth factor is neutral in regard to whether an extension of time should be granted.
Conclusions about Issue 1
For the reasons I have given, I refuse to grant the siblings an extension of time within which to make their costs application, because they have no arguable case for costs.
Even if I were to grant an extension of time within which to make the costs application, the siblings' cost application would fail for the reasons I now provide, which are relevant to Issue 2.
Issue 2: Should the siblings be awarded their costs, and if so, what should those costs be?
The siblings' submissions
The siblings submit that a costs order should be made against [Service Provider] because [Service Provider] acted unreasonably or inappropriately in the following circumstances.
Firstly, commencing the application without informing or consulting the siblings about the proposed application and then refusing to discuss the basis for the application with the siblings.
Secondly, being untruthful to the Tribunal by answering no to the question in the application form enquiring whether the person, that is SJT, has any nearest relatives or other significant people in their life, and not including any of the siblings in the informal supports section of the [Service Provider's] report filed by [Service Provider].
Thirdly, while the application was awaiting determination by the Tribunal [Service Provider] facilitated and encouraged SJT to dismiss her established supports including her general practitioner, her NDIS coordinator and her NDIS plan nominee on the purported basis that she was entitled to choose her supports for herself which is fundamentally at odds with [Service Provider's] application to appoint a guardian (that is by making an application for a guardian [Service Provider] must have at the very least suspected that SJT was incapable of making those kinds of decisions in her own best interests). Further [Service Provider] threatened to call the police if SJT's brother attempted to take her to see her doctor.
Fourthly, making scandalous or over exaggerated allegations against the siblings including 'broad emotive and incredible statements about the family' and prolix and serious allegations, including of coercion, manipulation and abuse, all of which allegations are either entirely untrue or based partially on fact but exaggerated to the point of being untrue.
Fifthly, being untruthful to the Tribunal by maintaining that there was no medical evidence to indicate SJT suffered from chronic constipation and required management for obesity, despite [Service Provider] being in possession of medical evidence to that effect from at least 8 August 2024.
Sixthly, maintaining that ST was an unsuitable person to be SJT's guardian and insisting that the Public Advocate should be appointed despite the Public Advocate being the guardian of last resort, there being no evidence, beyond bald assertion, that ST was not a suitable person to be appointed guardian, and the Public Advocate's investigation report finding that ST was a suitable person and recommending that he be appointed as SJT's limited guardian.
The siblings contend that in the above circumstances they were forced to incur otherwise unnecessary legal costs in this matter due to [Service Provider's] conduct of these proceedings.
The siblings say that [Service Provider] was put on notice that they would be seeking legal advice as early as 29 November 2024.
The siblings submit that it is appropriate that [Service Provider] pay their costs of the proceedings.
[Service Provider's] submissions
[Service Provider] contend that costs ought not be awarded to the siblings for the following reasons.
Firstly, the Tribunal appointed an administrator and a guardian for SJT. The Public Trustee was appointed administrator without opposition. [Service Provider] applied for the Public Advocate to be appointed as guardian whilst ultimately ST was appointed as her guardian by the Tribunal.
Secondly, the application was made with genuine concern for SJT and none of the conduct identified by the siblings was unreasonable or unfairly caused an increase to the costs incurred by them.
Thirdly, at the time the application was made by [Service Provider] the relationship between [Service Provider] and the siblings had broken down and the positive impact of any discussion as to the basis of the application would have been negligible.
Fourthly, in respect of the omissions to reference SJT's nearest relatives/significant people/informal supports, these were in error given that SJT's family members were either expressly or impliedly referenced in other sections of the relevant forms. [Service Provider] contend that they were minor omissions which did not cause detriment to the siblings. They contend that the assertion that [Service Provider] was untruthful is misconstrued and unsubstantiated.
Fifthly, the actions by [Service Provider] whilst the application was awaiting determination had no impact on the attainment of the Tribunal's objective and its determination of the proceedings. [Service Provider] contend there is no basis upon which it can be established that such conduct unfairly caused an increase in the costs incurred by the siblings. In any event [Service Provider] contend that such conduct had no relation to the proceedings and ought not to be considered for the purposes of the siblings' costs application.
Sixthly, in respect of [Service Provider's] allegations, [Service Provider] submits that the allegations made against the siblings, whether conflated on some level or emotively described, were substantiated to at least a reasonable degree on the evidence before the Tribunal. Further, [Service Provider] submits that it was reasonable for it to maintain the allegations in the circumstances based on information received from the support workers who communicated and interacted with SJT on a day-to-day or otherwise frequent basis.
Seventhly, in respect of the contentions that [Service Provider] was untruthful by maintaining there was no medical evidence to indicate SJT suffered from chronic constipation and required management for obesity, [Service Provider] contend that these assertions are misconstrued and unsubstantiated. Further [Service Provider] contend that there is no basis upon which it can be established that these alleged assertions unfairly caused an increase to the costs incurred by the siblings in respect of the proceedings.
Eighthly, [Service Provider] made the application in good faith, on the reasonable belief that SJT needed a guardian and administrator and it was in SJT's best interests for the Public Advocate to be appointed instead of a family member, and this was not unreasonable.
And lastly, [Service Provider] submit that it did not engage in conduct which was unreasonable and unfairly caused an increase to the costs incurred by the siblings in the course of proceedings, or which otherwise impaired the attainment of the Tribunal's objective which is to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible and in a way which minimises the cost to the parties.
Consideration
Taking into account the principles to which I have referred, and the submissions of the parties, if I had granted an extension of time within which the siblings could make their costs application, I would not have been persuaded that they should be awarded their costs for the following reasons.
Firstly, I do not consider that [Service Provider], in commencing the application without informing the siblings and then not discussing the basis of the application with the siblings was unreasonable or inappropriate. This jurisdiction is inquisitorial, not adversarial, and applications are often made without prior consultation of family members. Further, the privacy provisions in respect of this jurisdiction operate such that any request to inspect or have copies of any documents (including the application) must be made to the Tribunal pursuant to s 112 of the GA Act. Parties are not entitled to have a copy of, or know the basis of, the application as of right.
Secondly, whilst the failure of [Service Provider] to disclose SJT's nearest relatives in the application form was inappropriate, I am not persuaded that costs were unnecessarily incurred by the siblings as a result. For the same reason I am not persuaded that [Service Provider's] failure to include the siblings in the informal support section of their [Service Provider] report led the siblings to incur unnecessary legal costs as a result.
Thirdly, whilst [Service Provider] ought to have allowed the status quo to be maintained pending disposition of their application, rather than facilitating changes to SJT's supports, I consider that they did so motivated by what they considered to be in SJT's best interests. Albeit this was not a view shared by the siblings. I am not persuaded that this circumstance led to the siblings incurring unnecessary legal and other costs associated with these proceedings. Further whilst it may have been inappropriate, or to use the Public Advocate's investigator's descriptor 'heavy handed' for [Service Provider] to threaten to call the police if her brother attempted to take SJT to see her doctor, I am not persuaded that this circumstance led to the siblings incurring unnecessary legal and other costs associated with these proceedings.
Fourthly, whilst [Service Provider] made a number of allegations against the siblings, which reasonably required response and were explored at the hearing, there is nothing in the siblings' submissions to persuade me that those allegations led to them incurring unnecessary legal and other costs associated with these proceedings. It is not uncommon in applications in this jurisdiction, for parties to make allegations about each other which are then taken into consideration by the Tribunal in determining suitability for appointment.
Fifthly, in respect of the siblings' allegation that [Service Provider] was untruthful in maintaining that there was no medical evidence regarding SJT's chronic constipation and required management for obesity, this is simply a matter about which the parties have conflicting views of the evidence. I am not persuaded that this is a circumstance that led to unnecessary legal and other costs being incurred by the siblings.
Sixthly, the parties' differing views about the suitability of any prospective guardian is an issue properly canvassed at guardianship hearings, and commonly parties have different views about the suitability of prospective guardians. I am not persuaded that this is a circumstance that led to unnecessary legal and other costs being incurred by the siblings.
Seventhly, I am not persuaded that [Service Provider] engaged in conduct which impaired the attainment of the Tribunal's objectives as set out in s 9 of the SAT Act, that is, to achieve a resolution of the application, fairly and in accordance with the substantial merits of the case, speedily and with as little formality and technicality as practicable and in a way which minimises the cost to the parties.
And lastly the fact that [Service Provider] was put on notice that the siblings would be seeking legal advice is not a circumstance that warrants the making of a costs order. Parties are entitled to seek legal advice and representation if they so choose, but it does not follow that they will be awarded costs. Rather they must persuade the Tribunal that it should depart from the starting position, which is that the parties bear their own costs.
For the reasons I have given, if I had granted the siblings an extension of time within which to make their application for costs, I would not have made an award of costs, as none of the grounds they have argued lead me to a conclusion that [Service Provider's] conduct has led to unnecessary legal costs being incurred by the siblings.
Issue 3: Should [Service Provider] be awarded their costs of the siblings' costs application?
In considering whether the siblings' conduct in making and pursuing the costs application was unreasonable I have taken into account the following.
Firstly, the siblings were legally represented.
Secondly, on 4 March 2025 [Service Provider's] legal representative submitted, correctly, that the siblings' costs application had no prospects of success and was unreasonable to make and pursue. They referred the siblings to the case of Questdale and also the case of Lee and Pharmacy Board of Australia [2021] WASAT 132 (S) at [81] to [84] being my own decision in relation to a s 87 costs application, albeit a costs application in another jurisdiction.
Thirdly, on 4 March 2025 and again at the directions hearing on 14 March 2025, [Service Provider] put the siblings on notice that they would be seeking to recover their costs in relation to the siblings' costs application in the event that they pursued their costs application.
The siblings have put [Service Provider] to the expense of defending their costs application in circumstances where it ought to have been plain to them, with the benefit of legal advice, that it had no reasonable prospects of success.
In the circumstances I am persuaded to exercise my discretion under s 87(2) to award [Service Provider] its costs of having to defend the siblings' costs application.
Issue 4: If the third issue is answered in the affirmative, what should those costs be?
In fixing costs I have taken a robust and broadbrush approach in considering what reasonable allowance for costs should be made, having regard to the work necessarily undertaken in order to defend the siblings' costs application.
The costs applications were determined on the papers and [Service Provider] submitted five pages of submissions, with an annexure and an accompanying bill of costs. The costs include drafting the communication of 4 March 2025, attending the directions hearing on 14 March 2025 at which programming orders were made, and the legal costs associated with the costs applications including preparing the costs application, submissions and drawing the bill.
The total hours of practitioner time included 7.5 hours for a junior practitioner and .8 hours of senior practitioner time. The hourly rates claimed were in accordance with the Legal Profession (State Administrative Tribunal) Determination 2024 (WA).
The total costs claimed are $3,274.70.
Taking into account the relatively simple and straightforward nature of the defence to the siblings' costs application I consider that the total amount claimed is somewhat excessive. I consider that a reasonable allowance for costs in defending the siblings' costs application is $1,500.
I consider that a period of 28 days following the date of the orders to be a reasonable period to allow for the siblings to pay those costs.
Orders
The Tribunal orders:
1.[The siblings'] application for costs is dismissed.
2.[Service Provider's] application for costs is allowed in part.
3.Within 28 days of the date of this order [the siblings] must pay [Service Provider's] costs fixed at $1,500.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS V Haigh, MEMBER
3 JULY 2025
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