WD - [2022] WASAT 12 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   WD [2022] WASAT 12
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   10 NOVEMBER 2021
DELIVERED          :   10 FEBRUARY 2022
FILE NO/S:   GAA 2548 of 2021
GAA 2550 of 2021
GAA 3829 of 2021
GAA 4688 of 2021
GAA 4689 of 2021
WD
Represented Person
MD
Applicant
SD
First Interested Party
GD
Second Interested Party

Catchwords:

Guardianship and Administration Act 1990 (WA) - Applications to revoke or vary enduring power of guardianship and enduring power of administration - Application to appoint applicant as guardian and administrator - Applications for the production and audit of records and accounts kept by donees - All applications dismissed - Discretion to award costs - Conduct and merit of the proceedings - Costs awarded

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(4), s 4(7), s 43(1)(b), s 45, s 51, s 51(2)(g), s 64(1)(a), s 64(2), s 70, s 100N, s 107, s 108, s 109, s 109(1), s 109(1)(a), s 109(1)(b), s 109(1)(c), s 109(2), s 110G, s 110J, s 110J, s 110K, s 110K, s 110N, s 110N(1)(a), s 110N(1)(b), s 110N(1)(b)(ii), s 110N(1)(b)(iii), Pt 9A, Div 4
State Administrative Tribunal Act 2004 (WA), s 9, s 47, s 47(1), s 47(2), s 49, s 87

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	In Person
First Interested Party	:	Mr Leo Barry
Second Interested Party	:	Ms Jillian Saint

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A
First Interested Party	:	Vibe Legal
Second Interested Party	:	Ms Jillian Saint

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

EW [2021] WASAT 111
GG [2021] WASAT 133
KS [2008] WASAT 29
LGW [2004] WAGAB 4
MM (2001) 28 SR 320
PHQ and LPQ [2015] WASAT 5
PJC and RJC [2008] WASAT 224
PT [2020] WASAT 147
SM [2015] WASAT 132

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings concern WD and his family. WD is 83 years old and is married to GD - they have been married for 60 years (having reached that milestone in November 2021). They have three children - a son, MD, and daughters SA and SD.
On 11 December 2003, WD signed an enduring power of attorney (EPA) appointing SD and GD as his joint and several attorneys.
On 30 March 2016, WD signed an enduring power of guardianship (EPG) appointing SD as his sole enduring guardian.
There were no restrictions on the decision-making powers conferred under the EPA and EPG. The EPA is to operate notwithstanding any legal incapacity of WD; the EPG operates at any time WD is unable to make reasonable judgments about matters relating to his person.
In broad terms, the proceedings concern applications brought by MD who seeks to replace SD and GD as the substitute decision-maker for WD. Each of the applications is brought under the Guardianship and Administration Act 1990 (WA) (GA Act). In these reasons, except as otherwise specified, every reference to a statutory provision is a reference to a provision of the GA Act.

Issues

In determining the applications, I will need to decide the following issues:
a)Is there sufficient evidence to rebut the statutory presumption that WD has the capacity to make decisions about his person and his estate[1] on his own behalf?
b)If so, is there a need to appoint a guardian or administrator? Related to this issue:
i)are the EPA and EPG less restrictive alternatives to the making of guardianship and administration orders that would meet WD's needs; and
ii)is there a sufficient basis to revoke or vary the terms of the EPA or EPG (and does MD have a proper interest in applying for such an outcome)?
c)If so, what functions should the guardian and/or administrator exercise and who is suitable for appointment?
d)Whether or not the EPA is revoked or varied, should the Tribunal exercise its discretion such as to require that SD and GD produce, and to require an independent audit of, records and accounts relating to their functions under the EPA (and does MD have a proper interest in applying for such an outcome)?

Procedural matters

[1] As to which, see [35]-[36] below.

The present proceedings comprise five related applications brought by MD, as follows:
a)applications dated 20 June 2021 for orders:
i)under s 100N revoking the EPG, or varying its terms such as to appoint MD as WD's attorney (GAA 2548/2021);
ii)under s 109(1)(c) revoking the EPA, or varying its terms such as to appoint MD as WD's attorney (GAA 2550/2021);
b)an application dated 6 September 2021 for guardianship and administrations orders appointing MD as WD's guardian and administrator (GAA 3829/2021);
(together, the Primary Proceedings); and
c)an interim application dated 4 October 2021 which, by orders dated 1 November 2021, was taken to be two separate applications made under s 109(1)(a) (GAA 4688/2021) and s 109(1)(b) (GAA 4689/2021) for orders requiring:
i)SD and GD to file with the Tribunal and serve on MD a copy of all records and accounts kept by them of dealings and transactions made by them in connection with the EPA; and
ii)such records and accounts to be audited and a copy of the auditor's report to be furnished to the Tribunal and MD
(together, the Accounts Applications).
By orders made on 9 September 2021, the Primary Proceedings were ordered to be heard and determined together, and an initial hearing was commenced on 29 September 2021.
Following a series of interim applications filed after that date, a directions hearing was held on 1 November 2021, where the Accounts Applications were ordered to be heard and determined with the Primary Proceedings (together, the Consolidated Proceedings). Evidence in each of the Consolidated Proceedings is evidence in each other of the Consolidated Proceedings.
I note, for completeness, that two further interim applications made by MD were dismissed on 1 November 2021, being applications made:
a)on 14 September 2021, in GAA 2548/21, for orders requiring each of SD and GD to produce copies of various documents to him; and
b)on 1 October 2021, in GAA 3829/21, for orders that:
1.[An] Aged Care Group provide [MD] and other persons he nominates access to [WD] to take him away for the purposes of medical assessment and medical treatment.
2.[MD] to select licenced medical practitioners to medically taper to NIL [WD's] dosages of all mental health medications which includes Madopar and Escitalopram otherwise known as Lexapro.
3.[MD] is authorised to do all necessary things to give effect to these orders.
4.[GD, DD, SD and LD] are to do all necessary things to give effect to these orders.
5.[GD, DD, SD and LD] to make available vouchers for subsidised wheelchair taxi, Medicare card and relevant information for health fund processing.
The Consolidated Proceedings were listed for a final hearing to be held on 10 November 2021.
In written submissions filed in the Primary Proceedings and in response to the Accounts Applications, each of GD and SD applied to have the Consolidated Proceedings struck out or dismissed,[2] and for MD to pay their costs.[3]
Application to adjourn
[2] Pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
[3] Pursuant to s 87 of the SAT Act.
By letter dated 9 November 2021 (and emailed to the Tribunal at 9.28 pm that evening), MD notified the Tribunal (by copy of a letter sent to other interested parties) that he would apply for an adjournment of the hearing, and he made that application at the commencement of the hearing.
By way of background, pursuant to orders granting him access to documents filed in the Consolidated Proceedings, MD had attended the Tribunal and inspected the documents. In his application for adjournment, he stated that he had perceived 'irregularities in the Tribunal file' and proposed that the hearing be vacated for the Tribunal to conduct an investigation in relation to the following matters/protocols:
1incoming data logs
2incoming document logs and paper trail
3video footage
4witness's [sic] without a reason to have a bias
5witness's [sic] that have a reason to have a bias.
He submitted that the inability to take copies of documents put him at a disadvantage. He also submitted that a mediation of the matter should be ordered. Each other interested party opposed the application to adjourn.
I note that in approaching questions of adjournment in such matters I am required to consider:
a)as my principal concern, the best interests of the proposed represented person[4] and, subject to that;
b)the objectives contained in s 9 of the SAT Act which include:
i)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
ii)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties.
[4] GA Act, s 4(2) relevantly provides that, in dealing with proceedings commenced under the GA Act, the primary concern of the Tribunal shall be the best interests of the person in respect of whom an application is made.
The application for adjournment was refused on the basis that:
a)MD had had a reasonable opportunity to inspect the documents filed in the Consolidated Proceedings; and
b)I did not consider there to be sufficiently strong grounds to vacate the hearing in order for the Tribunal to carry out an internal investigation.
Evidence
Materials filed in the Consolidated Proceedings included:
a)the applications (including attachments) in each of the Consolidated Proceedings;
b)bundles of documents filed by MD on 15 September 2021 (First Bundle) and 20 September 2021 (Second Bundle), the latter including a supplementary statement of MD made in the Primary Proceedings and dated 20 September 2021;
c)written submissions made by MD in the Accounts Applications dated 8 November 2021;
d)written submissions filed on behalf of SD in the Primary Proceedings dated 28 September 2021, and in the Accounts Applications dated 8 November 2021;
e)written submissions filed on behalf of GD in the Primary Proceedings dated 27 September 2021 and in the Accounts Applications dated 8 November 2021;
f)an investigation report and supplementary report of a delegate of the Office of the Public Advocate, Ms ZG, dated 23 September 2021 and 9 November 2021 respectively (together, OPA Reports);
g)a service provider report of NM, Facility Manager of the residential aged care facility (MH) in which WD resides, 6 September 2021; and
h)medical reports from:
i)Dr DN, a general practitioner (GP), dated 6 September and 13 September 2021; and
ii)Dr PS, a specialist neurologist, dated 11 July 2021, attaching a letter from Dr PS to Dr NL dated 18 July 2019.
I note that the First Bundle includes additional letters from Dr PS, as follows:
a)letter dated 23 October 2009 to Dr RK, a psychiatrist;
b)letter dated 3 October 2014 to Dr RN; and
c)letter dated 17 December 2018 to Dr NL.
In addition to the above materials, at 12.41 pm on 10 November 2021, being about an hour before the final hearing, MD emailed an affidavit to the Tribunal:
a)At the time of the hearing, the affidavit had not been seen by the other parties or the Tribunal.[5]
b)In the event, MD gave oral evidence, including in relation to the contents of the affidavit. I note further that the contents of the affidavit are largely contained and/or repeated in the previously filed materials.[6]
[5] Indeed, no further documents were expected since an order was made on 13 October 2021 that no further materials were to be filed in the proceedings without leave of the Tribunal.
[6] And each of the annexures to the affidavit are contained in the First Bundle.
In each of the hearings on 29 September 2021 and 10 November 2021:
a)MD appeared in person and was self-represented -although on each occasion he sought and was granted leave to have a support person, Ms AS, attend by telephone;
b)SD attended in person and was legally represented;
c)GD attended in person and was legally represented;
d)Ms ZG of the Public Advocate attended to advance the interests of WD;
e)each of SD and MD gave oral evidence;
f)two medical practitioners involved in the care of WD, Dr NL (a specialist geriatrician) and Dr DN also attended to give evidence (including in response to questions from interested parties); and
g)each of the interested parties who attended made oral submissions.

Material facts

Based on the medical and service provider evidence available,[7] I find that:
[7] Contained in the reports and materials identified at [18](g)-(h) above.
a)WD has significant neurological issues, with a fairly complex history.
b)He has a very long history of mood disorder, which was first (in or about 1969) diagnosed as depression, and later (in the 1990s) as paranoid psychosis with a differential diagnosis of bipolar affective disorder (BPAD). He has been treated for his depressive symptoms (for over 40 years) with long-term antidepressant therapy, and has on at least six occasions required admissions for severe depression.
c)From around 2009, he developed a tremor. Investigations indicated a diagnosis other than idiopathic Parkinson's disease. A series of MRI scans initially (in 2009) showed multiple strokes, and later (in 2011), the development of frontoparietal brain atrophy and occipital strokes with changes in the pons suggestive of a diagnosis of multi-systems atrophy (MSA) or Parkinson Plus Syndrome.[8]
d)His condition evolved with further strokes over the years (as noted on a 2016 MRI parietal brain scan) and the development of additional features of REM sleep behaviour disorder and sleep apnoea.
e)On this background of a vulnerable brain, his condition has continued to progress and decline with increasing age. He now has clinical features consistent with Alzheimer's dementia, with regular short-term memory loss and confusion. He can be unresponsive to voice or touch for long periods and, when responsive, is limited to one-word answers or facial gestures such as smiling.
f)WD was admitted into full-time care at MH on 25 July 2019.
g)WD has been under the medical care of Dr PS, Dr NL and Dr DN for a number of years.
h)He was referred to Dr PS, for review of his tremor in 2009 by his then treating psychiatrist, Dr RK[9] and continued to be seen by Dr PS until shortly before his admission to MH.[10]
[8] I note that MD disputes the diagnosis of MSA and attributes much of WD's neurological symptoms to be the effects of some or a combination of the drugs he is taking.
[9] As appears from the letter dated 23 October 2009 from Dr PS to Dr RK.
[10] In his medical report, Dr PS stated that he last saw WD on 13 July 2019.
Dr DN gave evidence that:
a)she first saw WD in the early 1990s when she admitted him to hospital for an episode of depression (which had atypical features). She noted that during that admission he 'flatly refused to take any medications' in hospital, and discharged himself after about three weeks;
b)she did not see him again until about 2014 when he was brought to her after-hours service with a history of recurrent falls at home (in the evening). At that time, he was also being seen by another general practitioner; and
c)she has been his regular GP since around November 2019, following his admission to MH.
Dr NL, gave evidence that she first saw WD as an inpatient 'around 2013' and she has continued, since then, to be involved in his medical care and management (her evidence is that she reviews him every four to six months, and last saw him on 3 November 2021, seven days before the final hearing). She provided a written report (dated 20 August 2021) of the current medications prescribed for WD. They include:
a)Levodopa and benserazide (Madopar) (200 mg +50mg) for Parkinsonism;
b)Escitalopram (15 milligrams mane) for his longstanding depression;
c)Quetiapine (25 milligrams) which has been prescribed PRN (per required need) for agitation and angst (but Dr NL and Dr DN gave evidence that this has never in fact been given under this prescription to WD, because the need has not arisen);
d)to reduce risk of fractures if he falls, Denosumab (60 milligrams subcutaneously six monthly) and Vitamin D supplements to prevent progression of osteoporosis and bone loss or thinning;
e)Asprin for stroke prevention, and fludrocortisone to treat hypotension;
f)Duodart to improve urinary output (from an inflamed prostate) and Hiprex to prevent recurrent UTIs; and
g)for symptoms of constipation, Macrogol (two x sachets mane) to keep his bowels regular, Rectogesic ointment to treat perianal discomfort, and Fleet enema PRN (for impaction).
Both Dr NL and Dr DN gave evidence that WD's neurological condition is Levodopa responsive. Dr NL expanded that, because it improved his neurological symptoms, it also benefitted WD's underlying mood disorder (and so any reduction must be approached with caution). She referred to an earlier trial to wean WD off Madopar in hospital, as follows:
[A]t that stage we weaned him off … completely, but then he had a fall and broke his neck … and it was felt that that was due to him freezing and - and having symptoms of worsening Parkinson's, so he ended up back on the medication.[11]
[11] ts 13, 29 September 2021.
Dr NL said that, since that time, there had been fluctuations in his doses to try to balance his issues with mobility and stiffness, as well as many other things like his escalating confusion. She said that 'in the days when he would express his opinion [WD] actually didn't want the Madopar cut back - chipped back. He actually felt better on it'.[12]
[12] ts 18, 10 November 2021.
To the extent that there had been some concern about his Parkinsonian features being associated with drugs, those concerns were of Dr PS in connection with the antipsychotic medications WD had been prescribed in the 1960s. WD has since been weaned off those medications, but has 'never quite got back to base'.[13]
[13] ts 14, 29 September 2021.
Dr NL and Dr DN gave evidence that Dr PS has been principally involved in managing WD's neurological condition and associated medications.
In his letter to Dr NL dated 18 July 2019, Dr PS noted that:
a)WD was by that date unable to make competent decisions about his own care and medications;
b)at a consultation between Dr PS and WD's family (on or about 14 July 2019) (Family Meeting), MD had raised his concerns (and provided a bundle of materials in support of those concerns) about WD's medications, and the doses and side effects thereof, notably of Escitalopram and Madopar;
c)extensive discussions had ensued, including addressing MD's concerns about associations between those drugs and:
i)suicide and/or death; and
ii)WD's symptoms of dyskinesia (being uncontrolled involuntary movements), hallucinations and constipation;
d)the studies to which MD referred were out of the clinical context and not relevant for someone like WD in terms of his clinical history and current situation;
e)as to the anti-depressant Escitalopram:
i)in relation to hallucinations, this was the least contributor to WD's symptoms given his longstanding psychiatric disease, frontoparietal brain atrophy, multiple strokes to the occipital and parietal regions and Madopar therapy;
ii)further, despite WD's reluctance at times to be on anti-depressants (as noted by Dr DN) he had in fact been recommenced on it at his request in 2014 and had improved on it, and 'all psychiatrists had felt that he needed long-term anti-depressant therapy'; and
iii)in the setting of the neurodegenerative processes that were occurring, it would be 'a far more cruel outcome' to cease it;
f)as to Madopar:
i)a previous trial to take WD off it had been trialled in hospital and had resulted in a significant deterioration in WD's condition; and
ii)its withdrawal would make WD more bradykinetic, immobile, and prone to complications of immobility;
g)despite extensive discussion and explanation, it was not possible to change MD's viewpoints. He observed that 'family conflicts extend well outside [MD's] interpretation of [WD's] care' and that 'the family conflict situation is continuing to deteriorate'.

I accept the professional opinions and factual accounts of each of Dr NL, Dr DN and Dr PS, as it is outlined above. My impression of the oral evidence of Dr NL and Dr DN was that it was candid and balanced. Further, the reports of each of Dr NL, Dr DN and Dr PS are internally and mutually consistent, and consistent with contemporaneous records which appear in the First Bundle and Second Bundle.
It is quite clear that MD's concerns, and associated tensions in the family, extend some time back. The documents submitted by MD in the First Bundle and Second Bundle show, and I find, as follows:
a)In June 2012, MD wrote to a Centre where WD was then being treated, expressing concerns that WD was:
i)being treated with 'scores of drugs' but that none had given relief from his mental health issues, and had in fact compounded his mental health problems;
ii)being tested for Parkinsons disease, given that MD understood there to be no definitive factual test for it; and
iii)affected by environmental issues, principally financial in nature (including 'his wife's spending').
b)In November 2013, he wrote to the hospital expressing concern about WD being discharged home to be cared for by GD, stating that:
i)'her decision making is impaired' and that she was 'currently undergoing psychiatric treatment with a psychiatrist'; and
ii)she was against recommended mitigation strategies and was 'sadly not ready to care for [WD]' due to her psychiatric condition and likelihood of changing her mind to things previously agreed to.
c)In December 2018, he submitted an adverse event report to the Therapeutic Goods Administration (TGA), attributing a range of WD's symptoms to Madopar and adding, as 'further information' statements that included that:
i)'my dad is acting to get this drug' and that GD was willing to accept his acting to get the drug;
ii)GD controls and supplies all the information to WD's treating doctors about how he is doing; and
iii)GD 'likely has some kind of psychological disturbance such as personality disorder', but there was no evidence she had been psychologically tested by WD's neurologist which was concerning given the reliance he placed on her information.
d)In December 2018, MD wrote to Dr PS:
i)requesting that he 'please take dad off Madopar medication due to the harm it is causing him';
ii)addressing a range of symptoms (including constipation, hallucinations, falls risk, sleepiness, a twist in his foot, stroke and blood pressure);
iii)stating that 'dad is drug dependant and has had several decades of putting on an act to go to the psychiatrist to get his drugs intake increased'; and
iv)querying a diagnosis of Parkinsonism for WD.
e)In June 2019, MD wrote to Dr PS expressing concern about WD being prescribed Madopar, stating that:
i)he (MD) had seen no benefit of WD taking Madopar;
ii)GD has a psychological condition where she erroneously believes doctors can solve all mental health issues with tablets, and that it was apparent Dr PS had 'no plan to detect and deal with this disorder';
iii)it was 'extremely disappointing' that Dr PS was prescribing medication to WD that 'is on course to be the major factor leading to his likely premature death';
iv)the approach of the hospital in failing to plan for the withdrawal of Madopar was akin to 'planning to fail'; and
v)if the above matters were not resolved to MD's satisfaction within seven days he would complain to the Health and Disability Services Complaints Office.
f)MD produced nine typed pages of notes for the Family Meeting, reiterating and expanding upon the matters outlined above.
g)He wrote a further letter to Dr PS on 17 July 2019 (following the Family Meeting) expressing ongoing concerns and seeking further intervention to refer WD for tapering off his medications.
h)On 17 July 2019, GD applied for and was granted an interim restraining order against MD (Restraining Order).[14] In the course of that hearing, she expressed that she was frightened because MD had become 'very erratic and aggressive' and had threatened WD's treating doctors and nursing home,[15] leading to MH withdrawing the offer of a permanent place for WD, and that he was:
[14] The transcript of the proceeding, held on 17 July 2019 in the Magistrates Court, was filed by MD in the First Bundle (RO Transcript).
[15] RO Transcript, pages 6, 8. I note that those allegations are denied by MD.
… telling everyone that I'm mentally unstable, that I am feeding my husband poison.[16]
[16] RO Transcript, page 6.
i)On 1 August 2019, MD contacted the Aged Care Quality and Safety Commission (ACQSC) expressing concerns that:
i)WD was being overmedicated and chemically restrained at MH;
ii)GD had a long-term tendency to overstate medical needs and to seek unnecessary medical intervention, and that medical professionals had diagnosed and over-medicated WD based on skewed information, disproportionate to his medical needs; and
iii)MD was being restrained by GD from intervening in medication decisions for WD.
j)Having sought and obtained a response from MH, on 27 August 2019 the ACQSC decided and notified MD that no further action was required.
k)On 14 September 2019, MD formally requested review of that decision, expressing ongoing concern about the medical management of WD, and attendant risks.
l)On 1 October 2019, the ACQSC confirmed its decision that no further action was required.
m)On 19 September 2019, MD wrote to Dr NL stating that:
i)WD's former psychiatrist, Dr TT, had told MD that WD was not mentally ill but that the family was 'dysfunctional' and needed family therapy;
ii)WD suffered high levels of stress from GD's high levels of spending and family dysfunction, and needed those matters addressed rather than medication. He suggested that a psychologist be engaged to repair WD's relationship with MD, which had been decimated by GD and SD (noting that the police had declined to intervene);
iii)WD despised mental health medications, doubted their efficacy, and feared their longterm effects;
iv)GD is, and has always been, domineering and WD would just go along with her views, and gave in to her insistence that he take mental health medications;
v)doctors and psychiatrists chosen by GD were selected because they were 'pro-drug and promedical intervention' and these were forced upon WD by GD;
vi)Dr PS did not discuss the risks of mental health drugs with WD and dismissed them when raised by MD;
vii)WD's medication management is prefaced on an acceptance by Dr PS and others of the 'chemical imbalance theory' which has been discredited; and
viii)WD 'pretended his muscular rigidity improved' after taking Madopar, and this behaviour was that of a drug addict not a patient being therapeutically helped.
I note that each of the above complaints and concerns are repeated and reflected in the written submissions filed by MD in support of the applications.
It is not contentious between the parties that:
a)the Restraining Order was lifted when, in November 2019, MD entered into a 12-month conduct agreement with GD (Conduct Agreement). Pursuant to the Conduct Agreement, MD:
i)was authorised to visit WD at MH on Sundays, and any other day by request; and
ii)regularly visited WD on Sundays, until April 2020.
b)since April 2020:
i)as a result of the introduction of the Emergency Public Health Directive, which operated to prevent unvaccinated persons from attending care facilities, MD has ceased having regular personal contact with WD;[17] and
ii)a staff member at MH facilitated a few (around five) in-person visits for MD outdoors, but other than that, MD has had only videobased contact with WD;
c)the Conduct Agreement has expired (on 20 November 2020), and SD has instead sought an undertaking from MD, as a condition of his contact with WD, that he will not discuss with WD the Tribunal proceedings, WD's health and medical management or his relationship with GD (Undertaking).

General principles

[17] It is also uncontested that MD has not had a flu or COVID-19 vaccine and/or is unwilling to disclose his vaccination status to MH (he contends that any requirement to disclose such information would be in breach of privacy principles).

In dealing with the Consolidated Proceedings, pursuant to the principles contained in s 4 thereof:
a)the primary concern of the Tribunal is the best interests of WD;[18]
b)in considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes WD has expressed, in whatever manner at the time, or as gathered from his previous actions;[19] and
c)orders should only be made, and be in such terms, as necessary to meet WD's needs, in the least restrictive way possible.[20]
[18] Section 4(2), GA Act.
[19] Section 4(7), GA Act.
[20] Section 4(4), GA Act.
In addition to the above, WD is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal.[21]

Capacity

[21] Section 4(3), GA Act.

It was not contentious that WD now lacks capacity. Nevertheless, I am required to be satisfied, on the basis that I feel an actual persuasion on the evidence, of the matters in each of s 43(1)(b) in relation to guardianship; and s 64(1)(a) in relation to administration.[22] That is:
a)the Tribunal cannot consider appointing a guardian for WD unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others; and
b)further, the Tribunal cannot consider appointing an administrator of the estate of WD unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate. For this purpose, 'mental disability' is defined to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
[22] See discussion in GG [2021] WASAT 133 (GG) at [31] and [45]-[63].
Each of Dr PS and Dr DN has assessed that WD would now be unable to make or communicate decisions about his financial and personal affairs. Dr DN assesses that he would be incapable of grasping concepts of finances any longer and would be unable to understand or carry out any plan of action or to formulate opinions about his finances. Further that he would be unable to understand the implications of medical treatment decisions, or to formal communicate opinions or requests about his care. Dr PS dates these inabilities from around 2019.
Based on that evidence, I am satisfied that the presumptions of capacity in s 4(3) are rebutted, and that WD is a person in respect of whom each of the limbs of s 43(1)(b) and s 64(1)(a) apply.
Given those findings as to capacity, I could appoint a guardian and administrator. However, such orders should not be made unless they are needed.

Is there a need to appoint a guardian or administrator?

If the needs of WD can be met in a manner less restrictive of his freedom of decision and action, then orders appointing a guardian or administrator should not be made.[23] The 'needs' of a person in this context are broadly construed.[24] They are, in essence, the practical manifestation of a person's best interests and as such are properly:
a)informed by, but not limited to, the matters outlined in s 51 and s 70; and
b)assessed in the particular circumstances of the represented person in question (in this case, WD).
[23] Section 4(4), GA Act.
[24] MM (2001) 28 SR 320; LGW [2004] WAGAB 4 at [25].
One of the ways in which WD's current needs may be met is through the operation of the EPA and EPG. The EPA and EPG are also evidence of WD's wishes in relation to who he would want to make decisions on his behalf, which I must take into account.
When such instruments are validly made, orders revoking them and appointing a guardian and administrator are restrictive of the donor's freedom of decision and action (because the instruments are the product of the person's decision and action, when competent). Such action may well be justified in the best interests of the donor once that person has lost decision-making capacity, but it is clear that the GA Act requires a cautious approach and clear evidence of a need to intervene.
Principles relevant to the EPA and EPG
Donees under an EPA and EPG have responsibilities to the donor.
Under s 107, a donee under and EPA is relevantly obliged to:
a)exercise powers as attorney with reasonable diligence to protect interests of donor (and liable for loss occasioned by failure); and
b)keep and preserve accurate records and accounts of all dealings and transactions under the power.[25]
[25] Additionally, subject to s 109(2), a donee may also renounce power during donor's incapacity, and must report to the Tribunal if they become bankrupt. Neither of those matters is relevant to the present proceedings.
Under s 109, the Tribunal exercises a general supervisory jurisdiction[26] in relation to EPAs. On the application of a person with a 'proper interest' it may:
a)require donee to file/serve a copy of records and accounts;
b)require such records and accounts to be audited;
c)revoke or vary terms (or confirm substitute has become donee). Further, if the Tribunal upon an application under s 109, the Tribunal may make 'such other order as to the exercise of power or construction of terms as it thinks fit'.
[26] KS [2008] WASAT 29 (KS) at [26], [47].
As to guardianship:
a)under s 110G, a donee under an (unrestricted) EPG has the same functions and limitations as a plenary guardian has under s 45; and
b)on the application of a person with a 'proper interest'[27] the Tribunal may (amongst other things) make a declaration regarding the validity of an EPG,[28] revoke the EPG,[29] or revoke the appointment of a donee[30] if the donee:
i)wishes to be discharged;
ii)has been guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders the person unfit to continue as an enduring guardian; or
iii)appears to the Tribunal to be incapable by reason of mental or physical incapacity of carrying out the person's duties.
Parties' positions
Applicant's grounds and contentions
[27] GA Act, s 110J provides that a person who in the opinion of the Tribunal has a proper interest in the matter may apply to the Tribunal for a decision under Pt 9A Div 4, which Division includes s 110N.
[28] Section 110K.
[29] Section 110N(1)(a).
[30] Section 110N(1)(b).
In this case, the applications to revoke or vary each of the EPA and EPG are not grounded in allegations that WD lacked the requisite capacity to execute those instruments.[31] (Indeed, there is no application made in connection with the validity of the EPG at all - noting that the application was brought under s 100N, not s 110K). Rather, the applications are founded on MD's contentions about the operation of, and decisions made under the auspices of, the EPA and EPG.
[31] Although Ms AS raised that issue in her questioning of Dr DN: ts 41-42, 10 November 2021.
More specifically, although the materials filed by MD are voluminous and challenging to distil, it is clear that the applications are directed towards revoking the EPA and EPG on such grounds as are contemplated by s 110N(1)(b)(ii) and s 110N(1)(b)(iii).[32]
[32] See [46](b)(ii)-(iii) above. There is no express equivalent ground for making orders to revoke or vary an EPA under s 109(1)(c), although clearly a failure to perform the obligations identified in s 108 would suffice.
At the heart of all the applications are the contentions, made by MD, that WD:
a)has been, and continues to be, harmed by the medications (notably Madopar and Escitalopram) being administered to him; and
b)is being cut off or isolated from his son MD.
Those primary contentions are supported by contentions to the effect that:
a)the guardianship decisions being made for WD are not being made in his best interests because:
i)consent has been given to the administration of the medications in question;
ii)WD is being denied contact with MD (contrary to his interests, as informed by research about the benefits of family contact and by s 51(2)(g) of the GA Act); and
iii)guardianship decisions are effectively being made by GD even though SD is appointed as his enduring guardian;
b)WD's estate is being managed other than in his best interests because:
i)his funds are used to pay for medical treatment that is harmful, and the medical practitioners who prescribe it;
ii)he has been placed in a residential care facility instead of being cared for by MD;
iii)the joint funds of GD and WD are going towards 'overspending' on GD's behalf; and
iv)GD 'cannot be trusted' and may lack capacity (she is variously described in the applications as having a mental health condition, and as being psychotic).
Similarly, the Accounts Applications appear to be founded on contentions that:
a)MD is a beneficiary under WD's will, and has an entitlement to a share in his estate upon his death;
b)the value of WD's share of the assets he owns jointly with GD is in the order of half a million dollars;
c)information contained in the OPA Reports is to the effect that WD's estate is being depleted yearly;
d)it is necessary to make immediate provision for the protection of WD's estate;
e)'the finances need to be transparent and audited' - MD has requested financial information from GD and SD, who have refused to provide it; and
f)GD 'cannot be trusted' as she has a history of providing 'false information' (to the Tribunal and others).
Further, MD contends he is a person with a 'proper interest in the matter' (which is necessary for all applications made under s 109 and under Pt 9A Div 4 of the GA Act) because he:
a)is WD's biological son;
b)is a beneficiary under WD's will, and has an entitlement to a share in his estate upon his death;
c)has a genuine desire to act in WD's best interests, and is concerned about WD's welfare and his estate; and
d)is putting himself forward for appointment as WD's guardian and administrator.
Donees' contentions
SD is the sole enduring guardian under the EPG, and joint and several attorney under the EPA. Her contentions may be summarised as follows:
a)The EPA and EPG are the least restrictive option for managing WD's financial and personal affairs, are operating in WD's best interests, and reflect his wishes.
b)WD is happy and settled at MH, and in 2019 wanted to transition his care there from respite to permanent residential - accordingly, that arrangement is reflective of his views and wishes and in any event meeting his care needs.
c)Before he lost capacity to manage his own affairs (and before he moved into permanent care) WD chose his treating medical practitioners[33] - they included Dr PS, Dr DN and Dr NL. As guardian, SD has continued with that team, to support his wishes and because she believes them to be professional, competent, compassionate, and working in WD's best interests with a full understanding of his complex medical conditions.
d)The most important supportive relationship in WD's life is that with GD. SD consults, and will continue to consult, with GD in relation to all significant decisions affecting WD – but understands and takes ultimate decision-making responsibility in relation to guardianship decisions.
e)SD has not denied WD contact with MD. Restrictions in relation to his contact have arisen through:
i)in the first instance, the Restraining Order and Conduct Agreement; and
ii)since April 2020, the introduction of the Emergency Public Health Directive which operated to prevent unvaccinated persons from attending MH.
f)Her decision to refuse permission for MD to take WD off the MH site was made on the grounds of concerns that WD would not be returned and/or would be subjected to unauthorised medical intervention. Those concerns arise from MD having expressed dissatisfaction with WD's care arrangements, insofar as they facilitate the medical treatment to which he objects. They also arise from MD's previous attempts to take WD to alternative medical practitioners chosen by him without the consent of SD.
g)She sought the Undertaking, and a condition that MD must not otherwise behave in an aggressive or threatening manner when visiting WD, in WD's best interests to avoid the stability of his care arrangements being compromised,[34] or WD being distressed by the subject matter of the Undertaking.
[33] This is supported by a similar contention made by GD in the statement annexed to her written submissions and application for dismissal of the proceedings dated 27 September 2021 (marked 'Annexure B') (GD's Statement), at para 3.
[34] Both GD and SD contended that MD's repeated complaints resulted in MH initially withdrawing the offer of a permanent place for WD: GD's Statement, para 6.

SD and GD, as joint and several attorneys under the EPA, have both made submissions regarding the administration of WD's estate and the Accounts Applications, which may collectively be summarised as follows:
a)SD and GD work collaboratively in managing WD's estate, which is applied principally to meet his care and medical needs;
b)MD has not adduced any evidence of any improper conduct of the attorneys in connection with the EPA, or that the administration of his estate is not working in his interests;
c)SD and GD have provided information regarding his estate to Ms ZG for the purposes of her investigation into the need for an administrator. That investigation supports a finding that the EPA is meeting WD's needs, and revealed no concerns that would support the revocation of the EPA;
d)the only stated ground for the Accounts Applications is that MD wants and has been refused access to WD's financial information. MD is not entitled to such information and the applications therefore fail to identify any valid purpose or proper interest;
e)neither MD nor Ms ZG has identified any matter in connection with the EPA which requires investigation, in the absence of which transactions undertaken pursuant to an EPA (which is a private agreement between donor and donee) should not be ordered to be disclosed or audited.
Similarly, both GD and SD have made contentions to the effect that:
a)WD's wellbeing is threatened by the 'continuous and incessant' nature of MD's opposition to, and attempts to control, WD's care;
b)that same conduct has also resulted in significant costs which negatively impact on the joint estate of GD and WD.
As noted above, both SD and GD oppose the applications and have applied to have each of the applications dismissed under s 47 of the SAT Act. That section applies[35] if the Tribunal 'believes' that a proceeding is:
a)frivolous, vexatious, misconceived or lacking in substance; or
b)being used for an improper purpose; or
c)otherwise an abuse of process.
[35] Section 47(1), SAT Act.
In those circumstances, the Tribunal may determine that the proceeding be dismissed or struck out and make any appropriate orders: s 47(2). If the Tribunal makes such an order then 'another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member : s 49 of the SAT Act.
Ms ZG's submissions
Ms ZG is an acting senior investigator and advocate with the Office of the Public Advocate (OPA). As OPA's delegate, she investigated and reported on matters relevant to the proceeding, and attended the hearings to advance the best interests of WD. In the OPA Reports and in the course of her oral submissions, Ms ZG:
a)reported upon her investigations, including to the follow effect:
i)although Ms ZG attempted a private in-person interview with WD, his neurological condition made it impossible to confidently ascertain his current views and wishes. He was only able to respond 'yes' or 'no', and was on occasion unresponsive;
ii)Ms ZG also spoke with MD, GD, SD, SA, Dr DN and Ms NM in the course of her inquiries;
iii)she concluded from her investigation that WD is not being isolated in MH, and that family visits (including from MD and SA are facilitated subject to restrictions arising from COVID-related protocols (and previously from the Retraining Order and Conduct Agreement);
iv)no person other than the applicant has provided information or evidence that would validate MD's concerns regarding WD being the victim of elder abuse, or of inappropriate and harmful medical treatment or restraint;
v)GD and SD provided Ms ZG with information and access to records connected with their administration of WD's estate under the EPA;
vi)WD does not have a separate bank account, but rather his income is managed through the joint bank account he holds with GD;
vii)WD's principal asset is the family home which he owns jointly with GD (and who continues to reside in the property). His only source of income is the national aged pension;
viii)the cost of WD's accommodation[36] and services exceeds his monthly income by $350 per month. He has additional regular expenses for pharmaceutical and allied health care amounting to around a further $500 per month. Regular expenses associated with the family home (such as maintenance, rates and insurance) amount to around $700 per month;
[36] Assessed on the basis of a Basic Daily Fee, noting that he is a concessional resident and is not required to pay a refundable accommodation deposit (RAD).
ix)accordingly, the costs of WD's care exceed his income. A reverse mortgage has been taken out against the family home to meet that shortfall, and can be drawn down to a total of $110,000. That arrangement is expected to meet WD's care expenses for the next four years;
x)there was no evidence to suggest that either of GD of SD was guilty of neglect, misconduct or default in their roles as WD's donees; and
xi)GD and SD had incurred significant legal costs in responding to the applications in the Consolidated Proceedings;
b)made submissions to the effect that:
i)there was no information or concern to warrant orders that the donees' accounts and records be produced or audited, and the Accounts Applications should be dismissed;
ii)given the outcomes of the investigation, as outlined above, the EPA and EPG were operating to meet WD's needs and in his best interests, and should remain in place. The applications in the Primary Proceedings should also be dismissed; and
iii)the repeated complaints and proceedings made by MD concerning WD's care were not in WD's best interests and were negatively impacting his relational and financial interests.
Disposition
For the reasons that follow, I find that:
a)although MD has a proper interest in applying, there is no sufficient basis to revoke or vary the terms of either the EPA or the EPG;
b)the EPA and EPG are less restrictive alternatives to the making of guardianship and administration orders that are capable of meeting WD's needs; and
c)each of the applications in the Consolidated Proceedings should be dismissed.
First, as I noted above, there is no contention that the EPA and EPG are invalid. In any event, there is insufficient evidence to displace the presumption that WD had the requisite capacity in 2016 to execute such documents, and even less so in relation to his execution in 2003 of the EPA.
a)I observe that the question of capacity in this context is narrower than a global assessment of capacity (the latter of which is undertaken in assessing whether the capacity criteria in s 43(1)(b) and s 64(2) are satisfied).[37] That is because this is a specific type of decision.
b)The question of capacity for these purposes is therefore confined to whether WD had the ability to understand the nature of, and the consequences of signing, the EPA and EPG, and to exercise his judgment to make a decision in relation to those matters.
c)Dr DN gave oral evidence that in her view, WD had that capacity at the relevant time, but would have lost such capacity in 2019. That evidence is consistent with the medical report of Dr PS to which I have previously made reference.
[37] As to which, see EW [2021] WASAT 111 (EW) at [39]-[40]; GG at [61]-[62].
On the face of it, therefore, I am satisfied that the EPA and EPG have effect. Accordingly, if those instruments are capable of meeting WD's needs, then an order appointing a guardian or administrator for WD should not be made.[38]
[38] Section 4(4), GA Act.
I find that WD's needs include decisions to be made in relation to:
a)medical treatment and management that responds to his complex array of neurological symptoms, as well as his general physical and psychological wellbeing;
b)accommodation that is suitable to meet his high and increasing requirements for personal support and physical care (including to mitigate his risk of and from falling);
c)so far as is consistent with his health and safety, maintenance of close and supportive personal relationships; and
d)the use and management of his estate to meet the costs of his care and maintenance.
As noted above, I have accepted the opinion evidence of Dr NL, Dr DN and Dr PS. It follows that I do not accept one of the fundamental factual premises of MD's applications in the Consolidated Proceedings, being that WD is being subjected to, and harmed by, inappropriate medical management. The weight of the evidence is overwhelmingly against that premise.
While that finding is practically significant in the context of these proceedings, it should not detract from the focus of the Tribunal's task. That task is to determine whether there is a need to interfere in the arrangements WD himself put in place for decisions to be made on his behalf. That is, the Tribunal is concerned with whether alternative decision-makers should be appointed and, if so, the functions they should exercise - it is not directly concerned with determining the particular decisions that should be made on WD's behalf. Nevertheless, the degree to which a donee has acted either consistently or inconsistently with the best interests of the represented person is relevant to deciding that matter.
A cautious approach is, however, appropriate. That is because an appointment under an EPA or EPG is 'essentially a private agreement between the donor and the donee'.[39] Before scrutinising[40] or disturbing[41] that arrangement, the Tribunal should be satisfied that, in addition to the application being made by a person with a proper interest in the matter,[42] the circumstances justify[43] such orders.
[39] EW at [94].
[40] By making such orders as are contemplated by s 109(1)(a) and s 109(b) of the GA Act.
[41] By making such order as are contemplated by s 109(1)(c) and s 110N of GA Act.
[42] Section 109(1) and s 110J.
[43] See KS [2008] WASAT 29 (KS) at [49] and EW at [94].
As to whether MD has a 'proper interest', I note that:
a)although the term 'proper interest' is not defined, given the protective intent of the GA Act,[44] it should not be restrictively applied;[45]
b)although each case must be decided on a case by case basis, some guidance may be obtained from authorities which have recognised circumstances giving rise to a 'genuine and proper interest' to include:
[W]here there was a recognised legal basis for an interest; where there may be a public interest and where a person is embroiled in 'collateral court proceedings'[.][46]
c)such an interest might be distinguished from one that is frivolous, vexatious or prurient in nature;[47] and
d)a close family relationship with, and an interest in the estate of, a donor may be sufficient to give rise to a proper interest.
[44] SM [2015] WASAT 132 (SM) at [7].
[45] EW at [27].
[46] EW at [26].
[47] EW at [38].
In this case, I am satisfied that MD has a sufficient interest in his father's welfare, including his physical and financial interests, to constitute a person with a proper interest in the applications he has made under s 109(1) and s 110N.
That finding is a necessary but insufficient basis upon which to make the orders sought. As noted by the Tribunal in EW:
It is clearly not sufficient that an order be made simply upon the making of an application by a person with a proper interest. To do so would obviate the discretion available to the Tribunal. An enduring power of attorney is an essentially private agreement between the donor and donee, and the transactions undertaken pursuant to that agreement should not be scrutinised unless there is reason to do so.[48]
[48] EW at [94].

I am not satisfied that the circumstances justify any interference with the EPA and EPG in question.
I accept the evidence of Ms ZG in relation to the investigations she conducted. By the time she made submissions to the Tribunal, she had clearly formed a view about the outcomes she supported. That is not improper (and indeed, is consistent with her delegated role of advancing the interests of WD in the proceedings) and did not detract from my impression that she formed those views based on information obtained in an independent manner, including from the interested parties (GD, SD and MD) and from more independent sources (doctors and service providers involved in WD's care).
I accept that Ms ZG found no evidence that would give rise to any concern regarding the management of WD's estate. Indeed, it would appear that the decisions made by SD and GD have been consistent with both his views and wishes (being that he wanted to remain in MH) and with his need for high level care. I find that WD's income, and the interest that he has in the home he owns jointly with GD, is being applied to meet his care needs. Those arrangements are transparent (insofar as they need to be) and appropriately arrived at.
The fact that MD has sought and been refused access to accounts and records is not a sufficient basis to make orders under s 109(1)(a) and s 109(1)(b). Indeed, in the absence of a 'proper or sufficient basis for an inquiry' into the management of WD's financial affairs, such refusal is consistent with the private nature of the appointment and functions of the donees under the EPA.
Similarly, in relation to the EPG, I find that SD has:
a)taken advice from appropriately qualified professionals in making decisions about her father's health care and living arrangements; and
b)not unduly restricted WD's ability to have contact with those with whom he has a supportive relationship.[49]
[49] As to which, I have regard to s 51(2)(g), GA Act.
As to the former matters, the vast swathe of documents and literature produced by MD in support of his application does not undermine my views. As noted by Dr PS, those materials are not directed to WD's particular circumstances. I am satisfied that a range of qualified and competent medical professionals have carefully and collaboratively considered WD's medical management, including having regard to the particular concerns of MD (and the underlying basis and rationale offered by him for holding those concerns). They have provided internally consistent and considered advice to SD, who has ultimately followed their recommendations.
As to the latter, maintaining supportive relationships for WD is not the same thing as facilitating unfettered and unconditional contact with him. Rather, decisions made in WD's best interests must respond to a range of matters and may appropriately impose such restrictions as are reasonable and necessary to safeguard WD's health and safety. I find that the restrictions that have been in place to date are not such as to be inconsistent with WD's best interests, viewed holistically.
In relation to both instruments, I find that the evidence does not support a finding that either of SD or GD are incapable of performing their respective functions as WD's donees.
In particular, in relation to GD, she consistently maintained that she was not under the care of a psychiatrist. She produced a letter from her general practitioner of some four years, Dr TF, in which Dr TF produced the scores of a cognitive function test that she had undertaken with GD, which indicated no cognitive impairment. Dr TF indicated that she had no concerns about GD's decision-making and assessed her as capable.
Further, Dr DN and Dr NL both gave evidence that in their dealing with SD and GD over the years that they had been involved in WD's care, they had had no concerns about the capacity of either.
It follows from the findings above that:
a)I decline, on the basis that I do not consider that the circumstances justify it, to exercise my discretion to:
i)revoke or vary either the EPA or EPG; or
ii)order the production and audit of records of accounts in connection with the exercise of authority under the EPA.
b)I am satisfied that there are less restrictive alternatives to the making of guardianship and administration orders that are capable of meeting WD's needs.
Each of the applications in the Consolidated Proceedings is dismissed.

Applications for summary disposition and costs

I have determined and dismissed each of the Consolidated Proceedings substantively, rather than by way of dismissal under s 47 of the SAT Act.
That is because, in my view:
a)the exercise of discretion to strike out or dismiss an application summarily sits uncomfortably with the protective nature of the jurisdiction exercised by the Tribunal under the GA Act;
b)although there are certainly some instances in which such a step may be warranted, the exercise of such a discretion should be approached with a greater degree of caution than in non-protective proceedings; and
c)such caution is especially warranted where the proceedings involve a first instance application in the Tribunal and where findings about the capacity of a proposed represented person need to be made.
It is unsurprising, therefore, that the Tribunal has only rarely made such orders, and has done so largely in the context of applications for the production and audit of financial records under s 109(1)(a) and s 109(1)(b).[50]
[50] See example, PT [2020] WASAT 147.
In this case, although the Accounts Applications are applications for orders under s 109(1)(a) and s 109(1)(b) of the GA Act:
a)those applications were intimately tied to the applications in the Primary Proceedings; and
b)there was a range of medical and other decisionmaking in question in the Primary Proceedings, such that it was in my view preferable to consider and make findings on the evidence, and to determine the applications on the merits.
That is not to say, however, that there is no scope to consider or respond to the manner and context in which the proceedings were brought and, importantly, conducted.
In this case, each of GD and SD have applied to recover from MD the costs they have incurred in responding to the proceedings.
The discretion of the Tribunal to award costs arises under s 87 of the SAT Act. The starting position is that the Tribunal is a no costs jurisdiction.[51] That position is, however, expressly subject to the discretion of the Tribunal:
… 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.[52]
[51] SAT Act, s 87(1).
[52] SAT Act, s 87(3).
In considering the exercise of the discretion to award costs in a proceeding brought under the GA Act, the Tribunal has previously observed that the making of administration and guardianship applications are 'very intrusive and lead to the exploration of sensitive issues in a person's life'. They should, therefore, not be made lightly and the applicant should have a reasonable belief, objectively grounded, of the grounds for making the application. [53]
[53] PJC and RJC [2008] WASAT 224 at [57] - [58].
Applying that reasoning, the Senior Member Wallace (as she then was) relevantly commented that:
In circumstances where the applicant is made aware of material in clear and unequivocal terms, which reasonably leads to the conclusion that the application is unlikely to succeed, then the expectation of the Tribunal is that the application ought to be withdrawn, unless contrary, probative medical evidence is able to be produced.
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, unnecessarily prolonging an 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 proceedings.[54]
[54] PHQ and LPQ [2015] WASAT 5 (PHQ) at [32] - [33].

Those submissions are not properly dealt with here.[61] That is because the decision to award costs has been made. It is not open in this forum for a party to challenge or re-agitate arguments in relation to the underlying decision. The only issues to be determined now are the amount and time for payment of the costs the subject of the orders made on 10 February 2022.
[61] Save, perhaps, in relation to the issue of apprehended bias, in respect of which the applicant has sought that I be removed from further decision-making in these proceedings. The Tribunal has not acceded to that request. I note, for completeness, that I do not consider it necessary or appropriate to recuse myself, taking account of the principles and approach articulated in (for example) Electricity Networks Corporation t/as Western Power and Bombara [2021] WASAT 3 at [12] - [23].
As to those issues, MD's submissions are to the effect that:
a)he does not have capacity to pay costs;
b)neither SD nor GD have complied with the orders of the Tribunal in relation to their claim for costs, in that they have not provided:
i)an adequate or sufficiently detailed schedule of costs; or
ii)a bill of costs;
c)neither SD nor GD's submissions identify any unreasonable costs MD caused them to incur;
d)the costs claimed by GD are excessive (noting the disparity between the costs claimed by her and those claimed on behalf of SD); and
e)he cannot make a submission about the date for payment of costs, since he has no capacity to pay.

Disposition

Principles and approach

As noted by Senior Member Aitken in PT:[62]
26One of the main objectives of the Tribunal in dealing with matters within its jurisdiction is to minimise the costs to the parties: s 9(b) of the SAT Act.
27When 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 awarded, to reflect an expectation that the legal representatives of the parties will approach proceedings in a way that minimises costs to their clients.
…
29The Tribunal is empowered to fix the amount of costs to be paid and if it does not fix the amount of costs then the amount is to be assessed; s 89 of the SAT Act. The usual approach of the Tribunal is to fix costs, rather than assess them.
[62] PT [2020] WASAT 147 (S) (PT) at [26] - [29], citing J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [38].
As noted in that case,[63] the Tribunal's approach to fixing costs has been explained[64] in the following way:
a)the Tribunal approaches the task of fixing costs to be awarded in a 'broad and relatively robust fashion';
b)the Tribunal must be satisfied that the claim is reasonable having regard to the matter before it; and
c)an award of costs is not intended to be a full indemnity for the actual expense incurred by a party to a proceeding, but rather:
… [T]he preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion[.][65]
[63] PT at [30].
[64] GB [2020] WASAT 61 (S) at [58] - [61].
[65] Winterbourn and Western Australian Planning Commission [2013] WASAT 72 at [45], citing Medical Board of Australia and Costley [2013] WASAT 2 at [66].
That approach is relevant to the objections raised by MD as to the level of detail in the schedules of costs provided by SD and GD, and to the non-production of the underlying costs agreements.[66]
a)As to the latter, SD and GD have claimed costs based on the rates set out in the SAT Determination (with each submitting that the actual charge-out rates, and therefore the costs incurred, were higher). I am satisfied that that is an adequate and reasonable basis upon which costs can be determined.
b)As to the former, I am satisfied that the schedules of costs provided by each of GD and SD are sufficiently detailed for the purposes of fixing rather than assessing costs.
[66] See [9](b) above.
Finally, noting MD's submissions in relation to his ability to meet a costs order,[67] I would add that the subjective capacity of a party to pay costs is not a relevant consideration to the question of the sum to be fixed.
a)Once a costs order is made fixing the sum that is allowed, that sum becomes a judgment debt. The capacity to pay that debt may well be relevant to any enforcement proceedings, but it is not to my mind material to the question of what sum is reasonable to allow.
b)Rather, once the Tribunal has determined that one party should pay another party's costs, the focus must turn to fixing a sum that is reasonable having regard to the nature and complexity of the matter, and the work reasonably associated with it.
Costs fixed
[67] See [9](a), (e) above.
Taking account of the above, I have determined to fix the costs to be paid by MD as follows.
First, in relation to the submission of MD at [9](c) above, I observe that the costs order I made in the Decision:
a)was founded upon an assessment of whether it was reasonable in the circumstances to award costs against MD;
b)limited the costs awarded to those incurred by each of SD and GD after 1 November 2021; and
c)was not otherwise limited to 'unreasonable costs'.
Second, relevant to the costs claimed by both GD and SD, I note that the materials submitted by the applicant were extensive. While the legal representatives would have had the opportunity to consider those materials prior to 1 November 2021, I am satisfied that it was reasonable for them to review all relevant documents in preparation for the final hearing.
More specifically, as to the costs claimed by SD:
a)I consider that the nature of the SD work and the time allowed for it in the schedule of costs submitted by SD to be reasonable, taking account of the nature of the matter, the length of the hearing, and the materials to be reviewed; and
b)I fix the amount of costs to be paid by MD in respect of the proceeding, taken together at $4,538.
As to the costs claimed by GD:
a)I consider the claim for 17 hours of professional time to be somewhat elevated, particularly when compared with the costs incurred by SD;[68]
b)although a number of personal allegations were made by MD against GD, which reasonably required response, I do not consider that that would have caused the professional time taken to prepare for the final hearing to be markedly different from that required by SD (noting that SD was both a joint donee under the EPA and WD's sole guardian);
c)accordingly, I consider that GD's costs should be fixed at a sum equivalent to those allowed for SD; and
d)I fix the amount of costs to be paid by MD in respect of the proceedings, taken together, at $4,538.
[68] And to that extent, I accept the submission of MD at [9](d) above.
I consider that a period of 28 days following the date of the orders that follow to be a reasonable period to allow for MD to pay the costs awarded to each of SD and GD.

Orders

The Tribunal orders:
1.MD must, by no later than 4.00 pm on 14 June 2022, pay the costs of SD fixed in the amount of $4,538.
2.MD must, by no later than 4.00 pm on 14 June 2022, pay the costs of GD fixed in the amount of $4,538.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR B MCGIVERN, MEMBER

17 MAY 2022