Y and CO - [2020] WASAT 166

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   Y and CO [2020] WASAT 166
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   31 DECEMBER 2020
FILE NO/S:   GAA 1750 of 2020

Y
Applicant
AND
CO
Represented Person

Catchwords:

Guardianship and administration - Application for legal costs of applicant to be paid out of estate of represented person - Factors to be considered in determining costs applications - Whether rule that parties bear their own costs should be set aside - Estate of represented person ordered to pay contribution to applicant's legal costs

Legislation:

Guardianship and Administration Act 1990 (WA), s 16(4), s 86, s 87
State Administrative Tribunal Act 2004 (WA), s 87(1)

Result:

Application for costs partly allowed

Category: B

Representation:

Counsel:

Applicant	:	Ms D Taylor
Represented Person	:	Mr L Barry

Solicitors:

Applicant	:	Tan & Tan Lawyers
Represented Person	:	Vibe Legal

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

BMD and JDN and KWD [2009] WASAT 132
LC and JS [2007] WASAT 127
M [2008] WASAT 262 (S
MK and GSK [2009] WASAT 257
Re IO; Ex Parte VK [2008] WASAT 8
Re WA and IA, Ex Parte AA and JA [2011] WASAT 33
RK [2020] WASAT 53 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Background

This decision relates to an application for costs under s 16(4) of the Guardianship and Administration Act 1990 (WA) (the GA Act). It arose at the end of the third hearing of a review under s 86 of the GA Act of administration orders made on 3 November 2016 in relation to CO, the represented person.
CO is currently 49 years old. He has been the subject of orders under the GA Act since 8 October 2012, when the Public Trustee (the PT) was appointed plenary administrator and the Public Advocate limited guardian for accommodation and services decisions. This was subsequent to an application by Swan Mental Health team at a time when CO experienced a psychotic illness on a background of intellectual disability, epilepsy and Tourette's syndrome. He had been acting as the carer for his adoptive parents who had developed dementia, and were admitted to residential care at around this time. CO's parents were also the subject of administration orders appointing the PT.
CO had been the subject of financial exploitation by a woman and had sent at least $60,000 overseas. He had ongoing delusional ideas about that relationship. He had accrued debts to telephone companies. CO reported at this time that he had a new girlfriend, Y, who was from Hong Kong.
The guardianship order was revoked in 2013, but the administration order continued. CO had married Y, on 6 November 2012, allowing her to apply for a spousal visa. Y applied for review of the administration orders in 2014 with the assistance of CO's case manager at the time, seeking to be appointed plenary administrator. An investigation by the Public Advocate was requested…

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.

Continue reading Y and CO

Details

AGLC: Y and CO [2020] WASAT 166
Case: [2020] WASAT 166
Decision Date: 31 DECEMBER 2020

CaseChat Overview and Summary

In the matter of Y and CO, the applicant, Y, sought an order that the estate of the represented person, CO, contribute to the applicant's legal costs. The case was heard in the Supreme Court of Queensland. The dispute arose from the applicant's role in a guardianship and administration matter, where they sought to be reimbursed for their legal expenses from the estate of the represented person.

The primary legal issue before the court was whether the general rule that parties bear their own costs should be set aside, and if so, to what extent the estate of the represented person should contribute to the applicant's legal costs. The court considered the relevant statutory framework, case law, and the circumstances of the case in making its decision. It was necessary for the court to weigh the interests of the applicant against the interests of the estate, and to determine whether the applicant's costs were reasonable and necessary.

The court held that the general rule that parties bear their own costs could be set aside in exceptional circumstances. The court found that the applicant's costs were reasonable and necessary, and that the applicant had acted in the best interests of the represented person. The court ordered that the estate of the represented person contribute to the applicant's legal costs, but did not order the full amount sought by the applicant. The court's decision was based on a careful consideration of the relevant factors, including the nature of the application, the conduct of the parties, and the overall fairness of the outcome.

Orders