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…

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.

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Details

AGLC: TJC [2009] WASAT 232
Case: [2009] WASAT 232
Decision Date: 24 NOVEMBER 2009

CaseChat Overview and Summary

In this matter, the case before the court involved an application for a guardianship order concerning TJC, along with an application for the legal costs of one party to be paid out of the represented person's estate. The application was made under section 16(4) of the Guardianship and Administration Act 1990 (WA). The legal issues that the court was required to decide included whether the principle that parties bear their own costs should be set aside, and what factors should be considered in determining the costs.

The court considered the legal principles surrounding the payment of costs from the estate of the represented person. The court acknowledged that generally, parties bear their own costs, but this principle could be set aside if it was just and equitable to do so. The court also examined the factors relevant to determining costs, including the nature of the dispute, the conduct of the parties, and the outcome of the proceedings. The court concluded that it was just and equitable to order that the legal costs of the applicant be paid from the estate of the represented person, taking into account the factors outlined above.

The court found that the legal costs of the applicant were reasonable and necessary, and that the application for a guardianship order was successful. The court therefore ordered that the legal costs of the applicant be paid from the estate of the represented person. The court also made a guardianship order in favour of the applicant, with the consent of all parties. These orders reflect the court's consideration of the legal principles and factors relevant to the determination of costs and the outcome of the proceedings.

Orders