WD

Case [2022] WASAT 12

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

  1. 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.

  2. On 11 December 2003, WD signed an enduring power of attorney (EPA) appointing SD and GD as his joint and several attorneys. 

  3. On 30 March 2016, WD signed an enduring power of guardianship (EPG) appointing SD as his sole enduring guardian.

  4. 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.

  5. 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…

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WD [2022] WASAT 12
Case
[2022] WASAT 12
Decision Date

CaseChat Overview and Summary

The proceedings involved multiple parties, including MD, SD, GD, and WD, with WD being the subject of enduring powers of guardianship and administration. The dispute centred around applications to revoke or vary the existing powers, appoint MD as the new guardian and administrator, and requests for the production and audit of records and accounts kept by the donees. The applications were dismissed, and the court had to determine the appropriate costs to be awarded. The court had to consider the conduct and merit of the proceedings, as well as the principles and approach articulated in relevant case law, to determine the amount and time for payment of the costs.

The court's reasoning was based on the principles and approach articulated in relevant case law, including the main objectives of the Tribunal in dealing with matters within its jurisdiction, which is to minimise the costs to the parties. The court also considered the Tribunal's obligation to minimise the costs to parties when an order for costs is made. The court had the power to fix the amount of costs to be paid and if it did not fix the amount of costs, then the amount is to be assessed. The usual approach of the Tribunal is to fix costs, rather than assess them.

The court awarded costs, taking into account the conduct and merit of the proceedings and the principles and approach articulated in relevant case law. The court determined that 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 a reasonable allowance should be made for the work necessarily done to bring the proceedings to a conclusion.

The final orders were that the applications were dismissed, and the appropriate costs were awarded, taking into account the conduct and merit of the proceedings and the principles and approach articulated in relevant case law.

Orders

Orders of the court

Applications dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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; andb)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; andh)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; andc)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); andg)each of the interested parties who attended made oral submissions.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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; orii)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); ande)he cannot make a submission about the date for payment of costs, since he has no capacity to pay. 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; andc)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].