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 by the Tribunal.
The investigation found that CO and Y did not understand that CO's parents' funds were not available to CO and Y. There was a lack of transparency around Y's income, contribution to household funds, and visa status. The couple were living rent free in the family home, however their only income was a single disability pension.
Orders reappointing the PT as the plenary administrator were made on 15 October 2014, and confirmed two years later on 3 November 2016, to be reviewed by 3 November 2021.
Y sought leave on 29 April 2020 under s 87 of the GA Act to seek review under s 86 of the GA Act of the 2016 order. In the interim, CO's parents had died, and their estates were being finalised, meaning that title of the family home and a substantial sum of money would be transferred to CO's estate.
In her application, Y explained that CO's ability to express his views and wishes had improved significantly over their eight years of marriage. He was frustrated that despite his belief that he had sufficient funds available, he and Y had not been able to negotiate with the PT to enable reasonable repairs and renovations to be carried out to the family home, and to replace their car.
Y stated that she had tried without success to communicate with the PT, that she and CO struggled on her income and they believed payment to them of a regular sum would be reasonable and feasible.
She sought revocation of the orders appointing the PT, and appointment of herself solely or jointly with the PT as the plenary administrator save that CO manage his weekly allowance. I note that at the time of the application CO did manage $620 of his $711.80 per fortnight disability pension (the sum that remained after payment of chemist and utility bills).
Y also sought that the administrator be directed to pay $15,765 costs she had incurred for herself, her son and CO to travel to Hong Kong in January 2020, up to $20,000 towards the cost of a family car, a regular maintenance allowance for Y and CO, and payment of the legal costs incurred in this application.
I note that these requests overlap to some extent with requests made in a letter to the PT from Tan & Tan Lawyers (Tan & Tan) dated 17 December 2019 in which they refer to Y and CO as 'their clients'.
Hearings were held on 29 June, 31 August and 9 November 2020. At the first hearing, Y had legal representation, but CO did not. Counsel for Y, Ms Debbie Taylor, suggested that CO would benefit from independent legal advice, and the PT as his administrator indicated its willingness to fund this subject to a costs agreement. At the second and third hearings, both Y and CO were represented.
During the hearings written and oral evidence from CO, Y, and representatives of the PT revealed that CO's communication style over several years had led to liaison with the PT being required to be via third parties (CO's case manager or more recently a support worker from Mental Illness Fellowship WA (MIFWA)).
Y had however formed the view that support from MIFWA should not occur at the family home, and that CO was unsettled when he returned from community access visits, and so this avenue of communication had become less available to CO.
Necessary work to repair and value the family home was not able to be completed by the PT's contractors due to confusion about timing or necessary access leading to them being denied access by Y or CO. However, Y and CO also wished for the repairs to occur, as did the PT, as it needed to occur to allow transfer of the title and the residue of the parents' estate to CO.
It appeared from the evidence that it had been impossible prior to the hearing to overcome the communication failures in the relationship between the PT, CO and Y, despite the attempts by Y (and possibly CO) themselves, or via Tan & Tan or support workers.
However, at the third hearing, a new trust manager had been appointed, who appeared to have established a supportive relationship with CO. Additionally, the PT had progressed the finalisation of CO's mother's estate, the title of the family home was now his, and $376,704.12 was held in the common account for CO.
On 9 November 2020 I made orders reappointing the PT as the plenary administrator for CO, but directing that it provide the entirety of his pension income to CO to manage independently, and to advance him $70,000 of his estate to manage independently on a trial basis for 12 months duration to give CO the opportunity to demonstrate or develop the skills to manage a larger proportion of his estate, given the need for it to last him many years. Ex tempore reasons were provided at that hearing for this decision, which gave significant weight to the written and oral evidence of Dr C, a specialist geriatrician, of CO's improving capacity after several years of regular depot medication.

The application for costs

At the conclusion of the hearing, Ms Taylor requested that the Tribunal order that Y's legal costs or a part thereof be paid from the estate of CO, under s 16(4) of the GA Act. CS, representing the PT, opposed such an order.

The Tribunal's power to make costs orders in respect of applications under the GA Act

Section 16(4) of the GA Act states:
The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
Written submissions were sought from the parties. I noted that as a result of the orders made at the hearing, CO now controlled $70,000 of his estate. Were Tribunal orders in regard to costs to be made, that payment would still be made from CO's estate, albeit possibly from the portion controlled by the PT as plenary administrator. I also noted the principle in s 87(1) of the State Administrative Tribunal Act2004 (WA) (SAT Act), that '[u]nless 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'. In RK [2020] WASAT 53 (S) (RK ) at [22] the Full Tribunal found that 'the starting point in respect of applications for costs in relation to GA Act proceedings is that the parties to those proceedings should bear their own costs'.

Written submissions of the applicant, Y

Tan & Tan, representing Y, filed multiple invoices with the Tribunal on 16 November 2020 dating back to 2017, variously naming CO or Y as the client, and referring to Migration, Estate and Administration matters. They indicated that the costs sought totalled $27,160.54.
In support of the request for payment of these costs, Tan & Tan argued in written submissions dated 2 December 2020 that the following points demonstrated that Y's actions were in the best interests of CO:
(a)CO supported Y's application for review.
(b)There was a complete breakdown of the relationship between CO and the PT prior to commencement of the proceedings, and without Y's application this would still not be resolved.
(c)Dr C's assessment and reports demonstrated CO's improved capacity, leading to less restrictive orders being made, which resulted in a number of benefits for CO and this occurred as a result of Y's application and the hearing process.
(d)The outcome demonstrates the merit of the application.
(e)Y could not have made the application without legal representation as she does not read or write English and has limited, highly accented spoken English.

Written submissions of the PT

CS, representing the PT, opposed the application on the following grounds:
(a)Legal costs were paid to Vibe Legal to represent CO, and were approved and paid for by the PT from CO's estate.
(b)The review could have been conducted without legal representation as it was not complex.
(c)The costs sought are not payable:
(i)insofar as they relate to CO (a total of $5,713.95);
(ii)not payable pursuant to s 16(4) of the GA Act as they relate to Y and matters that are unrelated to the review proceedings; and
(iii)the costs sought are not reasonable.
CS expressed concern that legal costs had been claimed from CO when an administration order was in place, and those purporting to represent him were informed by the PT (and anyway should have known) that they could not purport to act for CO without being engaged by CO's administrator.
In support of this CS provided correspondence between Tan & Tan and the PT from 2017 onward, including a letter dated 5 July 2019 stating:
As [CO] is under an administration order, he is not able to enter into a contract without the approval of his administrator, therefore I advise, that should he wish for you to represent him, we would need that request and a costs agreement forwarded to us for our approval. Without that approval, we will not be liable for any costs incurred.
On 18 December 2019, PT wrote to Tan & Tan stating:
The Public Trustee does not hold any consent from [CO] in which he has appointed your office to act on his behalf. Therefore we decline to provide the requested information. [CO] liaises with this office through MIFWA and should he request the information through MIFWA it will be provided to him. Please note that the Public Trustee has not signed a costs agreement for your services and decline to make payment of your fees. Neither [CO] nor [Y] can instruct this office to make payment of your services so please keep this in mind when taking instructions.
On 27 May 2020 an email from the PT to Tan & Tan again noted the lack of a consent form and asked for provision of a consent form where CO appointed its office to act for him and a costs agreement to be forwarded to the PT legal department for consideration.
On 12 June 2020 CS wrote to Tan & Tan, referring to its letter of 19 May 2020 in which it refers to CO as its client and its notice of representation to the Tribunal regarding the review application which indicated it was acting for Y. CS asked Tan & Tan to clarify for whom it was acting.
In her submissions, CS states:
Now that the accounts have been received from Tan & Tan, it is more apparent that that firm has:
a.Acted for [Y] in relation to migration issues, and they are now claiming costs pursuant to s 16(4) GAA for her migration issues;
b.Are claiming costs for [Y] from 2017 relating to earlier review applications; and
c.Are purporting to claim fees pursuant to s 16(4) GAA from [CO] without formal instruction (from his administrator), engagement and costs agreement regarding matters unrelated to the review hearing (eg his parents' estate).
CS, arguing that none of the below apply to CO's case, referred to the factors outlined in ReWA and IA, Ex Parte AA and JA [2011] WASAT 33, supra at [59]-[60] (re WA and IA) (which I note are in turn derived from LC and JS [2007] WASAT 127 (LC and JS) at [56]) for consideration by the Tribunal of whether it should exercise its discretion to order a represented person to pay another party's legal costs:
59The factors include:
•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; and
•where the application raises a special point of law.
60Awards of costs pursuant to s 16(4) of the GA Act are not common. They have generally been made when the application for costs is made by the applicant in the substantive application … and the Tribunal finds that the represented person benefitted by the applications being made and protective orders made[.]
(Emphasis added)
CS also referred to the discussion in RK at [26] and [28], noting that:
(a)s 16(4) conditions the positive exercise of the Tribunal's discretion on it being satisfied that the person seeking costs has acted in the best interests of the represented person; and
(b)the amount of the costs which may be awarded should be such costs relative to those proceedings as the Tribunal sees fit. The award is not referable solely to the costs incurred by that party.
CS disputed that the appointment of the new trust manager was related to the review application. She noted that an incident log had been created in the past due to incidences of aggression from CO to trust managers, and this had led to the requirement for communication via third parties for their protection.

Written submissions of CO

Written submissions from CO's legal representative were received on 3 December 2020, and neither supported nor opposed the application for costs, other than to say that CO considered it was appropriate for Y to engage legal representation to assist her with the review application given her limitations, and that Y acted in CO's best interests throughout the proceedings.

The Tribunal's decision 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 the costs regime in the SAT Act and the starting position that parties bear their own costs (see M [2008] WASAT 262 (S) (M) at [66] and RK).
Read in this way, more than merely acting in the best interests of the person will be required to succeed in a costs order under s 16(4) (see M at [66]).
I note that in re WA and IA, cases in which some of the costs sought have been awarded by the Tribunal are detailed, including ReIO; ExParte VK [2008] WASAT 8 (IO) where an applicant daughter was paid some of her costs as the Tribunal found the application might not have been made but for the legal advice and assistance obtained by her, and there was conflicting capacity evidence, legal complexity and allegations of financial abuse. In this case the costs application of the non-applicant daughter was refused, on the grounds amongst other reasons, that she 'had legal representation to argue her own position and interests before the Tribunal rather than the interests of the represented person' (IO at [41]).
In BMD and JDN and KWD [2009] WASAT 132, $5,000 of a claimed $23,579.50 was awarded as the Tribunal found that the applicants acted in the best interests of their father in bringing the application (where he had disposed of a major asset and they sought the setting aside of that contract).
In MK and GSK [2009] WASAT 257 (MK and GSK), $5,000 of a claimed $8,231.88 was awarded after adjustment in line with the costs determination applicable at the time and a further reduction for legal representation at the hearing that the Tribunal found unnecessary. The costs were awarded because the Tribunal found the case involved 'an unusual and complex set of circumstances that justifie[d] the exercise of its discretion under s 16(4) of the GA Act' (MK and GSK at [22]].
I am, in light of all the circumstances, satisfied in this case that an order for a portion of the costs claimed should be made under s 16(4). The reasons for this finding follow:
Y was supported by a case manager to make her initial review application in 2014, and by a translator as well as her legal representatives during the course of the three days of hearing in this matter. It was clear that the language barrier and legal complexities of the way that CO and his parents' estate interacted while under administration contributed to the communication failure between Y, CO and the PT over the last several years. Similarly, these would have made it impossible for Y to present her case as successfully without legal representation. I reject the PT's submission that legal representation was not necessary for Y to bring the application.
I also reject the PT's submission that it was not necessary to bring the application in order to secure adjustment of the orders on behalf of CO and to restore communications between CO and the PT. The emails and letters provided as part of that submission document multiple attempts by Tan & Tan to advocate on behalf of Y and CO for provision of information, or to arrange a meeting to discuss the situation and their requests. Notwithstanding the issues of whether CO could instruct Tan & Tan without the agreement of the administrator, it is apparent that attempts were made to resolve the issues outside of a review application, and they were unsuccessful.

The circumstances described in LC and JS as the ones in which the Tribunal may consider exercising its discretion under s 16(4) are not exhaustive. In relation to the circumstances of this case, the question arises whether CO benefits sufficiently from the increased freedom of decision and action afforded him as a result of the less restrictive orders being made, and whether that outcome was sufficiently unlikely to have occurred without legal advice having been sought by the applicant, to enliven consideration under s 16(4) of the GA Act.
The examples listed above (at [38] to [40]) relate to situations where protective orders were made for vulnerable people as a result of applications.
In this case, CO (and Y) were in straitened financial circumstances, and as a result of the application this has improved. There is extensive documentation in the evidence before me of the distress that CO experiences as a result of being the subject of orders. CO has benefitted from the updated medical evidence before the Tribunal showing his improving capacity, leading to the making of orders which have decreased his emotional and financial distress. This evidence was initially sought in the course of exploring the options available to remedy the circumstances in which CO and Y found themselves which subsequently led to the application being made. I am therefore satisfied that Y acted in the best interests of CO, and that it was unlikely the application, from which CO ultimately benefitted, would have been made had not legal advice been sought by the applicant. I therefore find that s 16(4) of the GA Act is enlivened in this case.
I accept the submission that CO's independent legal representation for the second and third hearings occurred as a result of advocacy by Y's representative, Ms Taylor, and that it was in CO's best interests to have legal advice independent of Y, as it was foreseeable that they may have a conflict of interests. However, the cost of CO's legal representation was met by the estate, and is not included in this costs claim. I accept the PT's submission that once CO had independent legal representation, no further costs incurred as a result of Y's legal representation should be met under s 16(4) of the GA Act.
I also note that the costs claimed substantially exceed what could be considered to relate to the proceedings before the Tribunal and so, therefore should not be paid from the estate (see IO at [5]). I find so for the following five reasons:
Firstly, I cannot accept that invoices from 2017 and 2018 which relate to migration issues should be included in the costs claim.
Secondly, there are items documented in October 2017 as 'Review file in preparation for periodic review hearing, attend hearing at SAT'. There was no periodic review hearing for CO in 2017. It is possible this may relate to one of CO's parents, but it cannot be said to relate to the current proceedings in a way that would enliven s 16(4) of the GA Act. Even were it in relation to a previous review hearing for CO, those costs should have been sought at that time, and not at a subsequent review hearing under a different section of the GA Act.
Thirdly, there are charges related to calls from Tan & Tan to Y to explain probate questions. Again, this does not relate to the current proceedings.
Fourthly, Tan & Tan were repeatedly and clearly informed in writing by the PT between 5 July 2019 and 27 May 2020 that CO could not instruct it or direct that the PT would pay its costs in the absence of written evidence of CO's consent and a costs agreement signed by the administrator. These were not provided.
Fifthly, from 6 August 2020, CO had his own legal representation. It was no longer necessary for Y to have representation at CO's cost in addition. CO's best interests would now be served by his legal representative, whose costs were the subject of an agreement with CO's administrator. Y continued to have the services of an interpreter provided at no cost by the Tribunal. If Y chose to continue to have her own legal representation, the cost should not be charged to CO's estate, given that he was already meeting the cost of his own representation from that time.
After removing the sums from 2017 and 2018, those from 2019 that relate to other matters and those amounts subsequent to the appointment of legal representation for CO under a costs agreement with the PT, the sum remaining detailed in invoices from Tan & Tan that could reasonably be said to be related to the current proceedings is $11,199.10.
In addition, Ms Taylor's fees are detailed in an invoice provided by Tan & Tan which unfortunately does not provide a breakdown of her costs in relation to the first and second hearings. There is a sum of $3,459.50 itemised as an unpaid fee note rendered 8 September 2020. I deduce that this likely represents some or all of the costs of preparation and attendance at the first two hearings which went for 1.5 and 2.5 hours respectively. There is also a sum of $2,125 plus GST sought for preparation and attendance at the third hearing (2.5 hours of preparation and 3.75 hours of attendance). I therefore deduce that the cost of representation at the first hearing (which is what I consider is relevant to consideration under s 16(4) of the GA Act as it occurred prior to CO having his own representation) would be in the order of $1,500, as a proportion of the figure of $3,459.50.
The hourly rates charged by Tan & Tan and Ms Taylor are within the allowable rates of the relevant costs determination.
The total amount that could potentially fall within my discretion to award amounts to $12,699.10. The entirety of representation giving rise to this amount was incurred after the PT's letter to Tan & Tan dated 5 July 2019 advising that the PT (as the administrator of CO's estate) would not be liable for any costs incurred in the absence of a request and a costs agreement.
This sum should however not be awarded in full and should be further discounted for two reasons. Y's financial interests are inextricably linked with CO's. Y sought directions that she be refunded the cost of a family holiday, and that money be released from the estate to pay for a family car and home improvements. I think it is appropriate to discount the costs by 50% to reflect the fact that the orders sought (and costs incurred) were equally for Y's benefit. In addition, it should not have been necessary for Tan & Tan to engage in correspondence with the PT on multiple occasions regarding the fact that it was purporting to represent CO in circumstances where no consent or costs agreement was in place (see [50]) and I am therefore further discounting the costs.
In view of all the circumstances, I consider that a costs order of $5,000 is appropriate.

Order

1.The administrator of the estate of CO is to pay to the applicant the sum of $5,000 from the part of CO's estate under the administration of the Public Trustee as a contribution to the legal costs incurred in respect of the application heard and determined by the Tribunal on 29 June, 31 August and 9 November 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
31 DECEMBER 2020