TJC - [2009] WASAT 232

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: TJC [2009] WASAT 232

MEMBER: MS D DEAN (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 24 NOVEMBER 2009

FILE NO/S: GAA 1448 of 2006
GAA 1449 of 2006

BETWEEN: KAC
Applicant
AND
TJC
Represented Person

Catchwords:

Guardianship order made - Application for legal costs of a party to be paid out of the represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Factors to be considered in determining costs - Whether the principle that parties bear their own costs should be set aside - Reasonable costs

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(4)
State Administrative Tribunal Act 2004 (WA), s 5, s 40, s 87, s 87(1)

Result:

Application successful in part

Category: B

Representation:

Counsel:

Applicant: N/A
Represented Person : Selfrepresented

Solicitors:

Applicant: Shaddicks Lawyers
Represented Person : Self-represented

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

LC and JS [2007] WASAT 127
TJC [2009] WASAT 130

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This was an application for costs relating to proceedings by which a guardianship order, having been set aside by the Supreme Court and remitted back to the Tribunal for a rehearing, was reviewed by the Tribunal and a new order made.
The mother of the represented person sought an order for costs associated with her legal representation in relation to the proceedings, to be paid out of the estate of the represented person.
The Tribunal accepted that without legal representation the mother may not have able to present her evidence in a timely and coherent manner and that it was in the best interests of the represented person that she be able to do so.
The Tribunal did not accept that the costs claimed accurately reflected the legal work appropriately undertaken, given the circumstances of the case and the limits imposed by the Tribunal on the cost of legal representation for the represented person. Taking this into account, the Tribunal ordered that $7,500, an amount substantially less than the $28,739.00 claimed, be ordered to be paid out of the estate of the represented person.

Background

This application relates to the legal costs of KAC, the mother of the represented person in the matter of TJC.
On 26 February 2007, the Tribunal made orders appointing KAC, TJC's mother, with whom he lives, limited guardian to make decisions about where and with whom TJC should live, the services he should receive and his medical and dental treatment. Because of longstanding, intense conflict and disagreement between KAC and other members of TJC's family about his wishes and where he should live, the Tribunal appointed the Public Advocate limited guardian to make decision about arrangements for contact with family members. TJC's paternal grandmother sought leave of the Supreme Court to appeal this decision.
On 21 December 2007, the Supreme Court set aside the Tribunal's decision and remitted the matter back to the Tribunal for rehearing. The original orders were to continue to operate pending the Tribunal's further determination.
On 14 March 2008, the Tribunal appointed the Public Advocate litigation guardian for TJC pursuant to s 40 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and directed her to instruct a solicitor to represent TJC in the proceedings. The Tribunal directed the Public Advocate to delegate her function as litigation guardian to a person other than the person to whom she had delegated her function as limited guardian in relation to contact. The Public Advocate subsequently instructed Ms Stokes of Chris Stokes and Associates to act on behalf of TJC.
On 14 March 2008, the Tribunal ordered that an independent assessment of TJC's views and wishes, and any other matters the Tribunal considered relevant, be conducted by a psychologist nominated by the Tribunal. Dr Phil Watts, a clinical psychologist, was appointed to conduct the assessment.
The Tribunal directed the administrator to pay out of TJC's estate the cost of the assessment up to $10,000, the cost of Dr Watts' attendance at the hearing up to $5,000 and the cost of separate representation up to $10,000.
The review of the guardianship order was heard over three days: 18, 19 and 20 February 2009. At the direction of the Tribunal, TJC's father, paternal grandmother and aunts, who all travelled from New South Wales for the hearing, were represented by one of the aunts.
Details of this matter can be read in TJC [2009] WASAT 130.

The application

In October 2009, KAC, the mother, made application to the Tribunal seeking reimbursement of $28,739.00 in legal fees related to the Tribunal proceedings referred to above. The applicant provided itemised accounts from Shaddicks Lawyers dated 15 December 2008 and 16 April 2009. These accounts relate to the periods from 13 March 2008 to 9 December 2008 and 5 January to 20 March 2009.
The applicant submitted, with reference to LC and JS [2007] WASAT 127 (LC and JS), that:
•the proceedings 'were unique by virtue of the number of parties involved, the level of conflict between those parties or more precisely between [KAC] and the five members of the [C] family who were all parties to the proceedings and opposed to her and the volume of submissions which were made to the Tribunal';
•there were 'serious allegations of abuse directed at [KAC] and other agencies which were involved in the care of [TJC]';
•'[KAC] would have found it extremely difficult to present her own case by reason of distance from the Tribunal, the number of parties opposed to her and the extensive number of submissions made by those parties, the allegations of abuse were made against her by those parties and the fact that she cared full time for the represented person'; and
•'[t]he presentation of [KAC's] case in a coherent fashion was necessary to accurately reflect the circumstances in which the represented person lives and the realities of his day to day existence. This information was not provided by the Public Advocate'.
The applicant further submitted that 'because [she] has full time care of [TJC] her only income is the amount paid to her by the Administrator of the estate of the represented person. She does not have access to any other source of funds from which to pay the accounts'.

The legislation

The jurisdiction to make an order for costs in the matter before the Tribunal is found in the SAT Act and the Guardianship and Administration Act 1990 (GA Act). If the two Acts are in conflict, the enabling act prevails (s 5 of the SAT Act).
Section 87 of the SAT Act relevantly 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.
The provision relating to costs to be paid out of the estate of the represented person is found in s 16 of the Guardianship and Administration Act 1990 (WA) (GA Act). Section 16(4) provides that if the Tribunal is satisfied that a party to proceedings commenced under the GA Act has acted in the best interests of the represented person, it may order that such costs relative to those proceedings as it thinks fit be paid to that party out of the estate of the represented person.

Findings and reasons

The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs. However, s 16(4) should not be read independently of s 87(1) of the SAT Act and the starting position that parties bear their own costs.
Section 16(4) requires me to address the questions whether the party, in this case KAC, acted in the best interests of TJC, and if I am satisfied that she did so and consider it appropriate to order that costs be paid out of the estate of TJC, whether the quantum of costs is appropriate given the circumstances of the case.
In addressing the question of best interests I must separate, in this case, the interests of KAC, who is TJC's primary carer with whom he lives, and those of TJC himself.
In her application, KAC acknowledges that she is dependent on the income she receives as his paid carer from the estate of TJC. In assessing her application, I must consider whether the desire to continue to receive an income from the estate of TJC motivated her to seek legal representation to promote her own interests in maintaining the status quo, or whether her primary concern was the best interests of TJC.
I accept that there is some merit in the claim in her application that KAC was able to bring to the proceedings information that may not otherwise have been available to the Tribunal. KAC provided evidence about some of the day to day minutiae by which the Tribunal was able to understand the more intimate details of day to day life for TJC.
I also accept that, given the significant level of conflict and the history of allegations, particularly in relation to her care of TJC, directed at KAC by other family members, it may have been difficult for her to provide evidence to the Tribunal in a coherent fashion.
I do not accept that the proceedings were 'unique' for the reasons outlined in the application. The Tribunal frequently has before it cases with numerous parties in attendance and a high level of conflict between them. Proceedings before the Tribunal are conducted with as little formality as is practicable and this, along with the Tribunal's inquisitorial role which allows it to gather information in any way it sees fit, generally obviates the necessity for legal representation. Given the nature of the conduct of proceedings before the Tribunal, it will only award costs in exceptional or unusual cases.
Consideration of the question of what constitutes 'exceptional or unusual circumstances' is detailed in LC and JS, referred to by the applicant in her application. In that case, the Member outlined some of the types of situations where the Tribunal might choose to exercise its discretion when making a determination in respect to an application for legal costs. Those situations include the following:
•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, for example, sterilisation; and
•Where the application raises a special point of law.
In this case, there were allegations that TJC was suffering from abuse and some of those allegations were made in relation to KAC and her care of TJC. In my opinion, given that she is TJC's carer and that he lives with her, it was necessary, and in TJC's interests, for KAC to be able to provide evidence in a cogent and coherent manner, particularly in relation to those allegations. It was reasonable, given the history of conflict in this matter, that KAC have legal representation to facilitate this process. Although it is not for the Tribunal to make the decision about TJC's longterm accommodation needs, it is for the Tribunal to decide who is suitable to be appointed to make such decisions for him, and evidence in relation to the allegations of abuse is important and must impact on any such decision made by the Tribunal.
I accept that the conflict between the parties was longstanding and of such magnitude that it was likely that, without legal representation, KAC would be unable to present her evidence in a coherent manner. I also accept that it is in TJC's interests that KAC's physical and emotional wellbeing is not jeopardised by the stress of representing herself in the proceedings. It is in TJC's interests that KAC remains emotionally well and strong in order for her to continue to provide the care he requires, at least until the guardian makes a decision about his long term accommodation and care needs.
I found that it was not easy to separate the needs of TJC and those of KAC as the two are, to some extent, intertwined but, on balance, I accept that KAC was motivated by a desire to seek the best outcome for TJC and was, in large measure, acting in his best interests in seeking legal representation for herself in relation to the proceedings before the Tribunal.
The fact that KAC lacks sufficient funds to pay the cost of her legal representation is not directly relevant to the Tribunal's determination in relation to this application. It is not clear whether KAC applied for Legal Aid to assist with the cost of her legal representation and if so, what the outcome of such an application was. I note that there is reference in the submitted legal accounts to telephone attendance on, and letters to, Legal Aid but I am not privy to the reason or details for these.

Quantum of costs

While accepting that KAC acted largely in the best interests of TJC in seeking legal representation to present her evidence in these proceedings, I do not accept that the total legal fees incurred represent costs which, in all the circumstances, ought to be paid out of the estate of the represented person. I am of the view that the quantum of costs applied far exceeds what is appropriate.
In addressing the issue of what is a reasonable fee for the legal work done in this case, I must also take into account the $10,000 assessed by the Tribunal as the reasonable maximum fee for TJC's legal representation in this matter. In my view, it is not reasonable, necessary, or appropriate, for TJC to pay out of his estate, legal fees for KAC in excess of his own.
The $28,739.00 sought far exceeds both the $10,000 the Tribunal authorised be spent on the cost of legal representation for TJC and the $10,000 authorised to be spent on the expert witness. I consider it significant that such cost limits were imposed in Tribunal hearings on 14 March 2008 and 30 September 2008, in which KAC's legal representatives participated. The legal assistance provided to KAC should, under the circumstances, have been provided in a more cost efficient manner.
In my view, both the justification for KAC's legal representation and the level of assistance provided by KAC's legal representation fall far short of those accounting for the Tribunal's authorisation of the payment of legal costs for TJC which relate more directly to issues at the core of the Supreme Court's orders that the matter be reheard by the Tribunal.
Given the circumstances of the case, and in particular the limits imposed by the Tribunal on the cost of legal representation for the represented person, the amount of legal work required to be undertaken for the mother in the best interests of the represented person, and the comparatively low level of assistance provided by the legal representation for which the costs order is sought, I find that that $7,500, an amount substantially less than the $28,739.00 claimed, is appropriate to be paid out of the estate of TJC, the represented person.

Conclusion

I acknowledge that it is the right of any party to seek legal advice and representation in proceedings before the Tribunal, but, as noted by the Tribunal in LC and JS, 'it is crucial for the legal profession to advise clients of the principle in the Tribunal's jurisdiction that parties bear their own costs and that an award of costs is the exception rather than the rule'.
Having said that, in this case, for the reasons outlined above, I am satisfied that an order for costs should be made under s 16(4) of the GA Act but I am not satisfied that the quantum of costs claimed by the applicant is reasonable. I consider, in the circumstances, that a costs order of $7,500 is appropriate.

Orders

The administrator of the estate of TJC is to pay the sum of $7,500 as a contribution to the legal costs incurred by KAC in respect of the matter heard and determined by the Tribunal on 18, 19 and 20 February 2009.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER