A and Es [2005] WASAT 279 (20 October 2005)

Guardianship and Administration Act 1990 (WA), s 16, s 16(4)

State Administrative Tribunal Act 2004 (WA), s 87

1 This was an application for costs relating to proceedings by which an Administration Order and a Guardianship Order were sought. The costs application relates to costs associated with legal representation at the first hearing of the applications. The Tribunal ordered that the applicant's costs, in part, be paid out of the represented person's estate.

2 This application relates to the legal costs of representation of Ms A at the first of three hearings of the applications. The applicant, Ms A, brought applications for guardianship and administration in respect of Mrs ES (the represented person). The hearing dates were 16 December 2004, 10 February 2005 and 6 May 2005. An administrator, Mrs W, was appointed on 16 December 2004 and the order confirmed on 10 February 2005. The application for appointment of a guardian was dismissed on 6 May 2005.

3 The first hearing was conducted by the Guardianship and Administration Board. Subsequent hearings were conducted by the State Administrative Tribunal exercising the jurisdiction previously exercised by the Guardianship and Administration Board.

4 The hearing on 16 December 2004 was attended by Ms A and Mrs W, daughters of Mrs ES, Mr S, son of Mrs ES, Ms Robyn Baker from the Office of the Public Advocate, Mr John Byrne, acting for Ms A, Mr Johnson Kitto, acting for Mrs ES and Mr Patrick Hogan acting for Mr S. In subsequent hearings, not relevant to this application, Mrs W was represented by Mrs Elizabeth Heenan.

5 Ms A set out her grounds for payment of costs in a written submission to the Board, dated 31 January 2005, under the heading "Legal Representation". She reiterated these grounds in a letter to the Tribunal, dated 25 June 2005, in response to a letter from the Tribunal seeking further information on the accounts.

6 In summary, Ms A's grounds for costs are:

• Whilst she prepared the application documents herself, she consulted Mr Byrne, a solicitor, when she learnt that her joint power of attorney (EPA) had been revoked.

• It was her brother's arrangements with Mr Kitto to prepare a revocation of power attorney and her removal as signatory to her mother's account, that prompted her to "get legal advice to protect my mother's well being and financial interests".

• On 19 January 2005, it was made clear to Mr Byrne that Mr Kitto was acting solely for Mrs ES, and that Mr Kitto had advised Mr S and Mrs W to obtain their own representation.

• Ms A states, "As I was acting to protect my mother's best interests, I believe the fees charged by John Byrne should be refunded to me".

7 Ms A is claiming $8129 (which includes GST). She states that all these costs relate to work by John Byrne in relation to her mother's hearings. Mr Byrne appeared at the December hearing but not at the subsequent hearings.

8 The relevant provision relating to costs at the date of the hearing to which this application relates is section 16 of the Guardianship and Administration Act 1990 (WA) (the Act), which provides that:

(1) Each party to any proceedings before the Board shall bear his own costs of the proceedings except to the extent that provision is otherwise made under subsection (2), (3) or (4).

(2) Where a person gives evidence or information -

(b) at the instigation of a party and the Board considers that the circumstances are exceptional,

the Board may approve payment to him of such amount as it thinks fit in or towards defraying any costs and expenses incurred by him in doing so, and an amount so approved shall be paid from moneys appropriated by Parliament for that purpose.

(3) Where in the opinion of the Board a party to proceedings has behaved unreasonably, vexatiously or frivolously in relation to the proceedings, the Board may order that that party pay such costs as the Board thinks fit to any other party who has not so behaved.

(4) The Board may, if it is satisfied that a party to proceedings 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 Board thinks fit be paid to that party by, or out of the assets of, that person.

(5) If any costs ordered by the Board to be paid by a party are not paid -

(a) the executive officer shall, upon application made by the party entitled to such costs, grant to him a certificate specifying the amount of such costs; and

(b) the party so entitled may recover the costs from the party against whom the order was made as a debt due in a court of competent jurisdiction."

9 Section 16 subsequently has been amended but those amendments do not affect this application.

10 Ms A's application falls to be determined under s 16(4) of the Act as set out above.

11 The other parties to the applications, Ms W and Mr S, were sent copies of Ms A's application and copies of the accounts. They were invited to make written submissions to the Tribunal on the application for costs. They were advised that the Tribunal would then consider the submissions and advise them of its determination.

12 An extension of time within which to make the submission was applied for by Ms Heenan, acting for Ms W, and was granted. Her letter of submission is dated 18 August 2005. The letter of submission from Mr Patrick Hogan, acting for Mr S, is dated 16 August 2005.

13 Ms W submits that Ms A's costs should not be paid or if there is a costs order it should not be full payment.

14 In summary, Mrs W's reasons are as follows:

• Mrs W is concerned that Ms A is seeking legal costs for hearings in November (although the Tribunal notes that this would have been December) when a three month appointment was made, and the February hearing, when the appointment was confirmed. She states "the applications were only required and attendances at the hearing because the behaviour of Ms A was such that co-operation between her and the brother of Ms A and Mrs W, Mr S had become impossible". In her view, had the donees been able to maintain a harmonious relationship in the best interests of Mrs ES, the applications and hearings would have been unnecessary.

• Mrs W and Mr S were represented at the two relevant hearings but paid their own costs. Ms A knew from 19 January, that Mr Kitto was acting for Mrs ES and therefore, that her mother's interests would be represented by him at the February hearing.

• With respect to Ms A's comment that she cannot afford to pay the legal fees, the attention of the Tribunal is drawn to the fact that a distribution of $150 000 was made from the Family Trust to each of the children in August 2004.

• Concern that allowing payment for the costs of earlier proceedings may encourage her to bring further applications before the Board which may not be well founded and may further encourage her not to co-operate with Mrs W as Plenary Administrator of Mrs ES's financial affairs.

15 Mr S submits that the Tribunal ought not to be satisfied that Ms A has acted in the best interests of her mother in making her applications for Guardianship and Administration.

16 The following points are made in support:

• The revocation of the joint EPA was made on 26 October 2004. The applications were made on 26 October 2004 and 29 October 2004. Mr S indicated his willingness to work with Ms A, for example to Ms Baker on 13 December 2004. Mr Hogan states "Ms A could have communicated to my client any concerns which she had with a view to a joint application for guardianship being made by the two of them, or indeed no application being made at all. With respect to administration, Ms A could have communicated with my client with a view to having Mrs W appointed as administrator. My recollection is that at the hearing on 16 December 2004, both Ms A and my client agreed to the appointment of Mrs W as administrator". Had there been communications before the applications were made, the matter could have been progressed in a less adversarial manner and there would have been no need for legal costs to be incurred.

• While it is not alleged that Ms A was acting in her own interests in making her applications, Mr S submits that she was not acting in the best interests of Mrs ES. The reason given, is that it is not in Mrs ES's best interests to have costs paid out of her estate where the applications had no prospect of success (guardianship) or could have been achieved by consent (administration).

• An ongoing concern of Mr S, is that if Ms A is successful in this application, then anytime there is disagreement between the two of them over her mother's affairs Ms A may go to the Tribunal with an application, with no resultant financial detriment to herself. He refers to two conversations with Ms A in which she said she was "going back to the Board". Mr Hogan states that his client wishes to ensure as far as possible that no further applications are made by Ms A.

17 By letter to the Tribunal dated 15 September 2005, Ms A commented on the submissions made on behalf of Mr S and Mrs W, refuting many of the comments made in those submissions and reiterating her basis for claiming costs.

18 Ms A's financial ability to pay her solicitor's fees is not, in our view, a relevant consideration under s 16 of the Act. The question for the Tribunal is whether it is satisfied "that a party to proceedings has acted in the best interests of the represented person" and if so, the Tribunal can "order that such costs relative to those proceedings as the Tribunal thinks fit be paid to that party".

19 Neither, in our view, can the application be refused with the intent of deterring future applications by Ms A. There are provisions under the State Administrative Tribunal Act 2004 (WA), specifically s 87, to deal with that issue. There are no facts to indicate that Ms A would be encouraged by an award of costs on this application to be legally represented at any subsequent hearings.

20 In our view, the argument made for Mr S that the guardianship application had no prospect of success, and that the administration could have been achieved by consent, must be rejected, based on what transpired in and between the hearings of these applications. Further, Mr Byrne submitted for his client at the December hearing the preferred position that the EPA be restored, rather than Mrs W's appointment as administrator.

21 We are satisfied that the applications were made in the best interests of Mrs ES, and given the circumstances surrounding the revocation of the joint EPA, and the size and complexity of the estate, it was appropriate that Ms A seek legal advice and representation. Therefore we would make an award of costs.

22 In our view, the argument that further efforts might have been made to reach agreement between the parties has some merit. The parties clearly did attempt this with a mediation after the 16 December hearing. It should have been evident to the parties by this stage, however, by what was said during that hearing, that the appointment of an administrator is not a matter that could be dealt with "by consent", and that the matter would need to be decided finally by the Tribunal.

23 In respect of the amount of costs awarded, the Tribunal does not award the amount sought. In the Tribunal's view it is proper to award a reasonable amount for obtaining advice and being represented at the 16 December hearing. The Tribunal does not consider it appropriate to award amounts that were incurred in negotiating with the other parties, and preparing for and attending the subsequent mediation and hearings.

24 The Tribunal awards an amount that takes into account the majority of legal costs incurred from 9 November 2004 until the hearing date on 16 December 2005. This amounts to $4350.

25 Upon an application by Ms A for costs pursuant to s 16(4) of the Act in respect of her application for the appointment of an administrator and guardian of ES, it is ordered that:

1. Costs of $4350 be paid to the applicant from the represented person's estate.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS R CARROLL, SENIOR SESSIONAL MEMBER