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[2008] WASAT 239
procedural. The applicants were ordered to pay KW $3,000 as a contribution towards the legal expenses she incurred in the proceedings. Her stated total costs were $4,019.40.
The Tribunal allowed the daughters to withdraw their application seeking an administrator for their mother, but ordered them to contribute $3,000 towards her legal costs. The application had been lodged without medical evidence or an apparent attempt to obtain it, and the applicants had not contacted their mother to clarify their concerns. Investigations did not find evidence supporting an administration order. Given the serious consequences of such an order and the applicants’ own legal representation, the Tribunal considered it reasonable for KW to have legal representation. The order was a contribution, not payment of her full stated costs.
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KB and DB, two daughters of KW, applied to the State Administrative Tribunal for an administration order for their mother. The application was lodged on 19 March 2008 through their solicitors ([6]). The daughters said they were involved in Supreme Court proceedings relating to the will and estate of KW’s late husband. They were concerned that KW appeared increasingly unable to protect her financial interests or understand the complex legal issues in those proceedings ([11]).
2 cited instruments linked from this judgment.
They also raised concerns about KW’s son, who held an enduring power of attorney. The application alleged that he might not be acting in KW’s best interests. Alternatively, the daughters suggested that KW’s debts and vulnerability to her son and his wife indicated that she might lack capacity to manage her financial affairs ([12]). They did not provide details supporting those allegations. They identified no current diagnosis, though they speculated that KW might have dementia or residual brain damage from a stroke ([13]).
The application sought a directions hearing and an order requiring KW to attend a geriatric physician for examination and testing. The daughters said they might later seek to remove their brother as attorney and appoint an administrator ([14]). The application contained no supporting information about KW’s capacity. Although it identified doctors and said reports were unavailable, the Tribunal found no indication that the daughters had tried to obtain reports from them ([15]).
The Tribunal contacted the nominated doctors. KW’s regular general practitioner, Dr P, said she was appropriately dressed and behaved, drove herself to town for shopping, and was capable of making reasonable decisions about her financial affairs. He said she was normal and oriented to time and space ([17]–[18]). A geriatrician, Dr K, later reported that his limited assessment did not permit definite conclusions. He noted some mild memory dysfunction and limited knowledge of some financial matters, but did not have enough information to refute the basic assumption of financial capacity ([21]–[22]).
At a directions hearing on 5 May 2008, KW’s counsel argued there was no evidence that she lacked capacity to manage her financial affairs. The Tribunal did not consider it had power to compel KW to undergo a medical examination, and therefore did not make the order requested by the daughters. It instead referred the matter to the Public Advocate for investigation under s 97(1)(b)(iii) of the Guardianship and Administration Act 1990 (WA) ([19]–[20]).
The Public Advocate contacted KW, family members, the parties’ legal representatives, doctors and local service providers. The resulting report concluded that the evidence was insufficient to displace the presumption of capacity in s 4(2) of the Act ([8], [23]). The parties then agreed that the application would be withdrawn and that KW would make written submissions about costs, with a response from the applicants ([25]–[26]).
KW claimed $4,019.40 in legal costs and sought an order under s 87(2) of the State Administrative Tribunal Act 2004 (WA) ([27]). The Tribunal ordered the daughters to pay $3,000 as a contribution towards those costs ([43]).
The Tribunal began with the general costs rule. Section 87(1) of the State Administrative Tribunal Act provides that parties ordinarily bear their own costs. Section 87(2), however, permits the Tribunal to order a party to pay all or some of another party’s costs ([31]–[32]). The Tribunal treated this as a broad discretion, not one confined to a closed list of circumstances ([32]–[34]).
The Tribunal drew on costs guidance discussed in Summerville and Department of Education and Training, which in turn referred to Chew and Director General of the Department of Education and Training. That guidance identifies circumstances such as unreasonable or inappropriate conduct, a clearly untenable claim, vexatious proceedings or an abuse of process as potential grounds for a costs order ([33]–[35]). The Tribunal did not treat those examples as an exhaustive definition of its discretion. It expressly noted that the statutory provision does not enumerate every circumstance in which costs may be ordered ([34]).
The protective purpose of the guardianship legislation mattered. The Tribunal accepted that applications may sometimes be made when little or no evidence of incapacity is available at the outset. But it referred to PJC and RJC for the requirement that an applicant have “a reasonable belief, objectively grounded” that the person is no longer capable of managing their affairs ([36]). The judgment therefore distinguishes a genuine, objectively based concern that initially lacks formal evidence from an application unsupported by investigation or particulars.
The Tribunal focused on what the applicants had done before applying. They provided no medical evidence, had made no apparent attempt to obtain it, and had not contacted KW directly to clarify their concerns about her capacity ([37]–[39]). The daughters said their concerns were based on their observations and on comments by a judicial officer in the Supreme Court proceedings, but they did not explain what they had observed or what those comments were ([39]). The Tribunal also recorded that the applicants had not disputed the claim that they stood to gain if the plaintiff in the Supreme Court proceedings, who was one applicant’s husband, succeeded ([38]). The Tribunal did not need to make a separate finding that the application was brought in bad faith. Its stated conclusion was that the application could not have succeeded when it was made, because the inquiries produced no information on which an administrator could be appointed ([40]).
The applicants argued that KW did not need legal representation because the Tribunal process was accessible, the matter was not complex, and she had been found to have capacity ([41]). The Tribunal considered that framing too narrow. An administration order was a serious step: under s 77 of the Guardianship and Administration Act, the represented person becomes incapable of dealing with her estate ([42]). It was also relevant that the applicants themselves were legally represented. In those circumstances, the Tribunal considered KW’s decision to engage a lawyer reasonable ([42]).
Finally, the Tribunal assessed the amount. KW’s legal costs were $4,019.40, but the order was for a $3,000 contribution rather than the full amount ([27], [43]). Its conclusion was that this contribution was fair and reasonable “in all the circumstances” ([43]).
The judgment describes the starting point before the costs application: parties to Tribunal proceedings generally pay their own costs under s 87(1) of the State Administrative Tribunal Act. That position is subject to the Tribunal’s discretion under s 87(2) to order payment of all or some of another party’s costs ([31]–[32]). The provision also permits an order compensating a party for expenses, loss, inconvenience or embarrassment resulting from proceedings, as set out in the statutory extract reproduced by the Tribunal ([31]).
The Tribunal’s reasoning places the dispute within a developing body of costs decisions under similar statutory regimes. It refers to Chew for examples of conduct that may justify a costs order and to Summerville for the caution that such examples do not exhaust the statutory discretion ([33]–[35]). The judgment does not announce a new, comprehensive test for costs. Instead, it applies the discretionary framework to the particular conduct and evidence before it.
For guardianship applications, the judgment articulates the balance it considers relevant. The protective character of the legislation may permit an application to be made before substantial evidence has been collected. But the applicant still needs an objectively grounded reasonable belief that the person cannot manage their affairs ([36]). That approach sits alongside the statutory presumption of capacity identified in s 4(2) ([8]). The Tribunal’s application of those points here was shaped by the absence of both supporting evidence and apparent efforts to make basic inquiries before commencing the proceeding ([37]–[40]).
After this decision, the immediate legal effect was an order requiring the applicants to pay $3,000 towards KW’s costs. The judgment itself does not describe any statutory amendment, appellate ruling or later decision changing its reasoning. It also does not provide information about how later courts or tribunals treated this particular decision. Any broader account of subsequent developments would require sources beyond the judgment.
At [36], the Tribunal states that an applicant needs “a reasonable belief, objectively grounded” that the person is no longer capable of managing their affairs. In plain English, a protective application should rest on an objectively supportable concern, not simply a suspicion. The Tribunal immediately recognises that little or no evidence may sometimes be available at the start of a protective proceeding, so the passage does not say that a complete medical case must always exist before an application can be made.
At [37], the Tribunal notes that the daughters applied without medical evidence and without an apparent attempt to obtain it. This is significant because the Tribunal’s concern was not merely that the application ultimately lacked evidence. It considered the information and inquiries available when the application was made.
At [39], the Tribunal records that the applicants did not explain what they had observed or what the judicial officer had said that prompted their application. In plain terms, their stated reasons were not particularised enough for the Tribunal to assess the factual basis of their concerns.
At [40], the Tribunal says the application “could not have succeeded at the time it was made.” This was its assessment of the available evidentiary basis, informed by the Tribunal’s and Public Advocate’s inquiries. It is not a finding about every possible future application concerning KW.
At [42], the Tribunal explains that appointing an administrator is serious because it affects the represented person’s ability to deal with her estate. It adds that it was not unreasonable for KW to have legal representation when the applicants were themselves represented. In plain English, accessibility of the Tribunal process did not, by itself, make KW’s legal costs unreasonable.
At [43], the Tribunal orders a contribution of $3,000 against stated costs of $4,019.40. The order therefore does not reimburse the full amount claimed.
The judgment is most directly relevant to a costs dispute following a guardianship or administration application that is withdrawn or fails after inquiry. The relevant combination here was an application alleging incapacity, no supporting medical evidence, no apparent effort to seek such evidence, no direct contact with the proposed represented person to clarify concerns, and no particulars explaining the applicants’ observations ([37]–[40]).
It is also relevant where the applicant’s basis for seeking intervention is tied to another dispute. Here, the daughters’ concerns arose in the context of Supreme Court proceedings relating to the deceased husband’s estate, and KW’s submissions raised the possibility that the applicants stood to gain if the plaintiff succeeded ([11], [28]–[29], [38]). The Tribunal recorded that context but did not make a distinct finding that the application was brought for an improper purpose.
The decision should be read with its recognition that guardianship applications may sometimes begin with little evidence. The judgment does not treat the absence of a medical report, on its own, as automatically warranting costs. Its reasoning turns on the wider circumstances, including the lack of apparent investigation, the absence of direct clarification, the missing particulars, and the conclusion that the application could not succeed on the evidence available ([36]–[40]).
A further relevant pattern concerns the proposed represented person’s legal costs. The Tribunal considered the seriousness of the order sought and the fact that the applicants had legal representation when deciding that KW’s representation was reasonable ([42]). The judgment’s costs result was a contribution, not an automatic rule that the unsuccessful or withdrawing applicant must pay the other party’s full legal bill.
The judgment text supplied here contains no later decisions discussing or applying KB and DB and KW. It therefore does not permit a grounded account of how later courts or tribunals treated this decision.
The judgment itself refers to earlier authorities. It discusses Summerville and Department of Education and Training and Chew and Director General of the Department of Education and Training in explaining the discretionary approach to costs ([33]–[35]). It also cites PJC and RJC for the objectively grounded reasonable-belief formulation relevant to protective applications ([36]). Those are authorities the Tribunal relied on or referred to in 2008; they are not evidence of later treatment of KB and DB and KW.
The judgment does not decide exactly what amount or quality of preliminary inquiry will satisfy the requirement for an objectively grounded reasonable belief in a particular future case. It accepts that protective applications may sometimes be made with little evidence, but the line between a justified early application and an inadequately investigated one remains dependent on the circumstances ([36]–[40]).
Nor does the decision define when an application is vexatious or brought for an improper purpose. KW advanced a submission that the proceeding might have been a fishing expedition or intended to delay the Supreme Court proceedings, but the Tribunal’s reasons do not make a separate finding that this was established ([28]–[29], [38]–[40]).
The judgment also does not determine whether the applicants’ concerns about KW’s ability to participate in the Supreme Court proceedings were well founded for purposes of those proceedings. Its decision concerned the administration application and the costs claimed in the Tribunal proceeding. It records that the applicants raised this concern, but does not decide the Supreme Court question ([11], [30]).
Finally, the Tribunal does not explain how it calculated the precise $3,000 contribution from the total claimed costs of $4,019.40. It states that the contribution was fair and reasonable in all the circumstances, without setting out a calculation or itemised assessment ([27], [43]).
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ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION : KB AND DB and KW [2008] WASAT 239
Costs - Application for appointment of administrator - Proposed represented person capable of managing her financial affairs - Application withdrawn - Application by proposed represented person for her legal costs to be paid by the applicants - Applicants ordered to pay contribution towards costs
Applicants to pay contribution of $2,500 towards the proposed represented person's legal costs
1 The daughters of an elderly woman applied to the Tribunal for an administration order for their mother. The applicants were involved in proceedings in the Supreme Court against their mother in connection with the estates and will of her late husband. They said she was vulnerable and appeared not to understand the complex proceedings. They were concerned that their brother, who was their mother's attorney under an enduring power of attorney, was not acting in her best interests.
2 At the time of lodging the application, the applicants did not have medical information about their mother's capacity to make reasonable judgments about her estate. Information subsequently obtained by the Tribunal from her general practitioner indicated that she was capable of making reasonable judgments about her estate.
3 The applicants withdrew their application and their mother sought an order under s 87(2) of the State Administrative Tribunal Act 2004 (WA) that they pay the legal costs she incurred in resisting their application.
4 The Tribunal took into account that the applicants had no medical evidence to support their application and had made no attempt to obtain such information. Nor had they contacted their mother to clarify their concerns about her understanding of the Supreme Court proceedings. Their application could not possibly have succeeded on the evidence. It was reasonable in the circumstances for their mother to engage legal representation particularly as the applicants were themselves legally represented.
5 The Tribunal ordered the applicants to pay a contribution of $3,000 towards the costs of $4,019.40 incurred by their mother.
6 On 19 March 2008, KB and DB through their solicitors, WL & KJ Everett, lodged an application for the appointment of an administrator for their mother, KW.
7 A directions hearing was held on 5 May 2008 at which KW was represented by Cooper Legal. Counsel for KW argued the application should be dismissed for want of evidence that KW lacked the capacity to manage her financial affairs. The Tribunal adjourned the proceedings for the Public Advocate to investigate and report to the Tribunal pursuant to s 97(1)(b)(iii) of the Guardianship and Administration Act 1990 (GA Act).
8 The Public Advocate subsequently reported that, having made contact with KW and her doctors, with the applicants and other family members and with service providers, there was in her view insufficient evidence to set aside the presumption of capacity in s 4(2) of the GA Act.
9 The parties subsequently advised the Tribunal that they had agreed that the application would be withdrawn, that KW would make written submissions as to costs and that the applicants would provide a written response to her submissions.
10 The Tribunal gave the applicants leave to withdraw and ordered parties to file submissions as to costs.
11 In their application for an administration order, the applicants stated that they were currently involved in proceedings in the Supreme Court against KW in connection with the will and estate of her late husband and they were concerned that she appeared increasingly to lack the capacity to look after her own financial interests or to understand the complex legal issues raised by the Supreme Court proceedings.
12 The applicants stated that they suspected that their brother, whom KW had appointed her attorney under an enduring power of attorney, had not acted in her best interests; alternatively, if their brother was not acting pursuant to his power as attorney, KW's lack of capacity to manage her financial affairs was demonstrated by a substantial increase in debt over previous months and her vulnerability to their brother and his wife. They did not provide details.
13 The applicants stated that they were not aware of any current diagnosis of a disability but it was 'likely that [KW] may have dementia and possibly residual brain damage from a stroke'.
14 The application asked the Tribunal to list the matter for a directions hearing with a view to an order that KW attend on a geriatric physician for examination and testing to determine the degree of impairment of her faculties. The applicants stated that, depending on the outcome, they contemplated seeking orders to remove their brother as attorney and appoint an administrator.
15 The application was lodged without any supporting information, in particular as to KW's capacity to manage her financial affairs. The applicants stated that they anticipated KW would object to the application and that her general practitioner might be precluded by patient confidentiality from providing information about her. The application identified two doctors and noted that reports were 'Not available' but there is no indication that the applicant had in fact tried to obtain a report from either doctor.
16 The Tribunal wrote to the doctors nominated in the application form and asked them to complete a standard form Doctor's Guide about KW. It listed the application for a directions hearing on 5 May 2008.
17 On 7 April 2008, Dr P returned the completed Doctor's Guide. He indicated he had known KW since 1964 and was her regular general practitioner. He commented that her dress and behaviour was always 'appropriate'; she lived some distance from town but drove herself to town for shopping each week.
18 In response to standard questions on the form, Dr P ticked boxes indicating that KW was capable of making reasonable decisions about her personal health care, her living situation and her financial affairs. He added that she 'does not require the attention of the Tribunal' and 'she is normal and oriented as to time and space'.
19 At the directions hearing on 5 May 2008, counsel for KW argued the application should be dismissed for want of any evidence that KW lacked the capacity to manage her financial affairs. Counsel for the applicants submitted that Dr P's report was limited and the matter should not be dismissed without the Tribunal obtaining further information.
20 The Tribunal does not consider it has the power to compel a person to submit to a medical examination and so did not make the order sought by the applicants for their mother to submit to a medical examination. However, it decided it should adjourn the proceedings and referred the matter to the Public Advocate for investigation pursuant to s 97(1)(b)(iii) of the GA Act as to whether any evidence could be found to support an administration order, what KW's views and wishes were, and anything else the Public Advocate considered relevant.
21 KW subsequently attended on Dr K who is a geriatrician who assessed her 'financial capacity'. In a detailed report to a doctor at the same practice as Dr P, Dr K concluded that it was almost impossible to draw any definite conclusions from his limited assessment; there was some evidence of some mild memory dysfunction and in some respects KW's knowledge of her financial affairs appeared somewhat limited. He concluded that he did not have enough information to refute the 'basic assumption of financial capacity' but a more complete assessment would have to be undertaken for a more certain opinion.
22 The doctor sent Dr K's report to the Public Advocate with the comment that he had never conducted any mental health or competency assessment of KW but there appeared 'no cause to doubt her competence'.
23 The Public Advocate provided the Tribunal with a detailed report of her investigation. She stated she had contacted KW, family members including the applicants, the legal representatives, each of the doctors and local service providers. It is not necessary to detail all her observations other than her conclusion that the available evidence was insufficient to set aside the presumption that KW was capable of managing her financial affairs.
24 In accordance with an order made at the directions hearing, the Tribunal sent a copy of the Public Advocate's report to the parties and asked for any submissions within 14 days.
25 The application was listed for final hearing on 30 June 2008 but on that date parties advised that they had agreed that the application would be withdrawn; KW would make written submissions as to costs; and the applicants would provide a written response to her submissions.
26 The Tribunal gave the applicants leave to withdraw and ordered parties to file submissions as to costs.
27 KW seeks an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (SAT Act) that the applicants pay the legal costs she incurred in resisting their application. The costs are $4,019.40.
28 It is submitted for KW that it is open to the Tribunal to infer, from the application itself, its context and the resulting investigation of the Public Advocate, that the applicants acted unreasonably or vexatiously and have caused embarrassment and inconvenience to KW as a result of which she has incurred substantial, unnecessary costs.
(i) the application had, on its face, no merit, no grounds and no supporting evidence; at the time it was made, there was no evidence of incapacity and no attempt to investigate capacity or contact KW directly;
(ii) the application sought an order, being to compel KW to submit to examination by a geriatric specialist, that was not within the Tribunal's power;
(iii) there was no mention in the application of any contact by the applicants with KW, even though one lives in the same area and the other is often in the same area; the applicants had not seen their mother for 12 months except at mediation conferences in the Supreme Court;
(iv) the Public Advocate conducted a thorough investigation and was unable to elicit any evidence of lack of capacity; KW voluntarily cooperated with the Public Advocate's investigation and provided responses consistent with normal capacity.
(v) none of the health professionals contacted by the Public Advocate could provide any indication of incapacity;
(vi) the application was, at best, a fishing expedition and, at worst, a bad faith attempt to delay Supreme Court proceedings by the applicants who, while not plaintiffs in those proceedings, stood to gain if the plaintiff (who is the husband of one of them) succeeded.
30 In response the applicants say that parties should bear their own costs. In particular, they say:
(i) the question is under what circumstances it is appropriate for a party to seek legal advice or be represented in proceedings under the GA Act;
(ii) the Tribunal process is accessible to parties; the matter was not complex and it was not necessary for KW to seek legal advice or be represented, especially given that she was found to have capacity;
(iii) the application was made in response to a comment by a judicial officer in the Supreme Court proceedings; it was necessary for the applicants to bring the application to ensure their mother was capable of participating in, and giving instructions in, the Supreme Court proceedings; in light of the medical information obtained, they believed they had discharged their obligations and would not take the Tribunal proceedings further;
(iv) the evidence tending to establish their mother's diminished capacity was their own observations over time including following a motor vehicle accident;
(v) the application was made in their mother's best interests and the outcome would have no bearing on the substantive proceedings in the Supreme Court;
(vi) although the medical evidence did not establish that KW needs a next friend in the Supreme Court proceedings, this might change and a further application might be necessary;
(vii) KW refused to undergo a full assessment by the geriatrician and did not attend the Tribunal hearing, thereby depriving the Tribunal of the opportunity to make a first hand assessment of the merits of the application.
(1) Unless 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.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or material on the application of the party under section 35.
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power 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.
32 Section 87(1) of the SAT Act provides that parties to proceedings before the Tribunal bear their own costs. However, the Tribunal has a broad discretion to award costs in appropriate cases: s 87(2).
33 Costs orders under s 87(2) were considered at length by the President, Justice Barker, in Summerville and Department of Education and Training [2006] WASAT 368(S). His Honour considered that the statement by the Tribunal in Chew and Director General of the Department of Education and Training [2006] WASAT 248 was a useful guide. In that case, the Tribunal said at [85]:
We take the view that in proceedings under the SAT Act, the Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
34 His Honour observed (at [27] and [28]) that these remarks had to be understood in the context of s 87(2) which does not enumerate the circumstances in which costs might be ordered and it would not be appropriate for the Tribunal 'to attempt finally to delineate the particular circumstances in which the discretion to award costs will be exercised'.
35 His Honour went on to outline some of the many decisions of courts and tribunals based on cost regimes similar to in s 87(1) and s 87(2) in which costs have been awarded including:
(i) where a party pursued a claim which was clearly untenable or which no reasonable person would have believed could be successful: see Tanglemayer v FAI Workers Compensation (Victoria) Pty Ltd (Anti Discrimination List No M4 of 1998, 16 December 1998.
(ii) where the complainant did not have a bona fide belief in the genuineness of his own claim, it was so lacking in any real foundation that he should never have brought it: see Wilson v Phoenix Contracting Services (unreported, Vic ADT, 27 March 1998) .
(iii) where the conduct of a party was unreasonable or embarrassing and not based on any genuine belief in the nature of the case: see, for example, Squires v Qantas Airways Ltd (No 1) (1985) EOC 92135; and
(iv) where an unsuccessful party subjected the successful party to 'rigorous and sometimes embarrassing crossexamination': see, for example, Gonsalves v MAS National Apprenticeship Services (Anti Discrimination) [2007] VCAT 64 at [15].
36 The protective nature of the GA Act means that applications will sometimes be made where there is little or no evidence of incapacity available at the time. However, as the Tribunal observed in PJC and RJC [2008] WASAT 224 at [58], an applicant needs to have 'a reasonable belief, objectively grounded, that the person for whom protection is sought is no longer capable of managing his or her own affairs'.
37 In this case, the applicants brought their application without any supporting medical evidence, without any apparent attempt to obtain that evidence and believing that their mother would object to the application.
38 It is submitted for KW, and the applicants have not disputed, that they made no attempt to contact her directly to clarify their concerns about her capacity to manage her affairs. Their contact appears to have been in the course of the Supreme Court proceedings. It is submitted for KW, and the applicants have not disputed, that, while not plaintiffs in those proceedings, they stood to gain if the plaintiff succeeded.
39 The applicants say that they brought the application in response to comments by a judicial officer in the Supreme Court proceedings but they have not said what those comments were or why they thought they should act on them. They say their concerns were based on their observations of their mother during the Supreme Court proceedings but have not said what they observed.
40 The application could not have succeeded at the time it was made. Inquiries by the Tribunal and the Public Advocate failed to elicit any information on the basis of which an administrator might have been appointed for KW.
41 The applicants say that the question for the Tribunal now is under what circumstances is it appropriate for a party to seek legal advice or be represented in proceedings under the GA Act. They maintain that the Tribunal process is accessible, the matter was not complex and it was not necessary for KW to seek legal advice or be represented, especially given that she was found to have capacity.
42 I think this frames the question too narrowly but, in any event, it overlooks the fact that the applicants were themselves legally represented. The appointment of an administrator is a serious step involving a declaration that the represented person is unable, by reason of mental disability, to make reasonable judgments about her estate. The effect of a declaration is that the represented person becomes incapable of dealing with his or her estate: s 77 of the GA Act. It is not unreasonable for a person to engage legal representation to resist an application by persons who are themselves legally represented.
43 KW's legal costs in relation to the tribunal proceedings were $4,019.40. In all the circumstances, I consider it fair and reasonable that the applicants pay a contribution of $3,000 towards those costs.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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The applicants were ordered to pay KW $3,000 as a contribution towards the legal expenses she incurred in the proceedings. Her stated total costs were $4,019.40.