KMR -v- JWH [2026] WASC 17 (6 February 2026)

1. The present appeal is solely against the costs order. There is no appeal against the dismissal of the application. The appeal itself was not filed until 17 December 2025, and was four months out of time, the last date for filing the appeal being 15 August 2025. In addition to an extension of time, the appellant also requires leave to appeal from the decision, pursuant to s 105(1) of the SAT Act.
2. On the court's own motion, the appellant's application for an extension of time was listed for hearing ahead of the substantive appeal, and prior to the filing of any appearance by the respondent. I heard from the appellant on 5 February 2026. He appeared by video link without legal representation. I have considered the affidavit material filed in support of the extension of time application, the materials which were before the Member at first instance, and a written chronology which was filed by the appellant after the hearing with the leave of the court.
3. In my opinion, for the following reasons, the extension of time application should be dismissed. These reasons are being administratively published today, without the need for an appearance, and a copy will be provided to the solicitors for the respondent for their information.
4. Given the nature of the proceedings, and the terms of s 113 of the Guardianship and Administration Act 1990 (WA) (GAA), I will anonymise the names of the parties and the factual background to the extent necessary.

1. The proceeding before the Member was substantively heard on 16 May 2025, at the conclusion of which the application was dismissed.[3] The Member dismissed the application primarily on the basis that the presumption of capacity had not been rebutted and, in any event, no need had been demonstrated for the appointment of a guardian or administrator, particularly given the existence of a validly executed enduring power of attorney and an enduring power of guardianship.[4]
2. The Member concluded that the application was an abuse of process.[5]
3. In summary, the Member noted that the appellant had conceded in the hearing that he had no evidence to support the allegations made in the proceedings, and he had had no contact with the respondent since 2018. The appellant also conceded he had no basis for his assertion that two other persons had convinced the respondent to appoint them as directors of his company. Further, the appellant had no personal knowledge of the respondent's current financial circumstances and he did not know what, if any, medical treatment the respondent was receiving or from whom.[6]
4. The Member concluded that the appellant should reasonably have assumed that the respondent would engage solicitors to represent him in the proceedings and would incur costs in doing so. Further, the appellant would have known that the bringing of the application would cause distress and anxiety to the respondent.[7]
5. The Member observed that a professed concern for the respondent's vulnerability, without more, was not a sufficient basis to grant an application of that nature.[8]
6. Importantly, as already noted, the Member found that the application was an abuse of process in that the appellant was reckless or indifferent to the truth and accuracy of the information contained in the application. The information relied on by the appellant to ground the application in fact related to events preceding the appellant's termination in 2018 as an employee of a company controlled by the respondent and another person, and were irrelevant to the determination of the application.[9]
7. The Member considered the quantum of costs claimed by the respondent and was satisfied it was fair and reasonable for the appellant to pay the respondent's costs fixed in the sum of $14,602.50.[10]

1. In his appeal notice, the appellant has identified four specific grounds of appeal, as follows:[11]
   1. The Tribunal erred in law in its approach to and/or application of s 87(2) of the SAT Act (including the threshold of exceptional circumstances) when making the costs order.
   2. The Tribunal erred in law by failing to consider relevant material that was before it (including evidence lodged via the eCourts Portal) and/or by taking into account irrelevant considerations in exercising the costs discretion.
   3. The Tribunal erred in law by making material findings that were not open on the evidence and/or were legally unreasonable, including findings that the application was baseless, misdirected or a waste of Tribunal resources.
   4. The Tribunal denied procedural fairness by failing to meaningfully engage with, address or weigh material evidence relied upon by the Applicant that was on the Tribunal file.

1. The appellant recognises that he requires an extension of time to file his notice of appeal, and that he requires leave for the substantive appeal, respectively pursuant to s 105(7) and s 105(1) of the SAT Act. The court is not determining the 'leave question' at this stage, although the merits of the appeal are relevant to the grant of any extension of time.
2. The court has a discretion whether to grant an extension of time.
3. The relevant matters for the court to consider when a party seeks to extend the time for filing its notice of appeal are well understood. A court considering an application to extend time will generally consider the length of the delay, the reasons for the delay, the prospects of the applicant for leave succeeding in the appeal, and the extent of any prejudice to the respondent: Engwirda v Owners of Queens Riverside Strata Plan 55728.[12]
4. The appellant has deposed to the reasons for the delay in filing the proceedings.[13] As I have said, the delay is four months. The appellant has deposed that, during the period in which he was required to file this appeal, he had various other legal proceedings on foot in the various courts, in which it was necessary that he prepare materials and attend hearings. The appellant provided only sparse and general information about these other matters in his affidavit, but further explained them at the hearing, and provided a chronology of the other proceedings in a document filed following the hearing, with leave. The chronology identifies four other proceedings, which I understand are unrelated to the present matter, being conducted in the Magistrates Court, this court, the District Court, and the Family Court of Western Australia.
5. The appellant has explained that he has been representing himself in those other proceedings (and in the present proceedings) and so he has been required to prepare all the materials himself and undertake the appearances on his own. The appellant emphasised that he is a respondent in the other proceedings, not a plaintiff.
6. The litigation workload of the appellant has been compounded, he says, by the appellant's work and parenting commitments, all of which 'significantly constrained the time available to prepare the present application within the prescribed period'. The appellant deposes that the delay in the present matter occurred 'due to these competing court obligations and limited resources', and 'not through any intention to disregard the time limit'. Further, once his other hearings and urgent steps were completed, he says he 'acted promptly to prepare this application'.
7. Some of the delay is also explained by the appellant's conduct in erroneously lodging papers with the Tribunal seeking an internal review of the costs decision. The appellant lodged the internal review application on 24 November 2025. On 10 December 2025, the appellant received a letter from the Principal Registrar of the Tribunal (which is dated 26 November 2025) informing him that any right to appeal had to be commenced in this court. The appellant thereafter, on 17 December 2025, filed his notice of appeal in this court.
8. The appellant deposes that:[14]

Once it was made clear to me that an appeal lay to the Supreme Court and that there was no internal review mechanism available, I took steps to prepare this application as promptly as I could, including obtaining the relevant transcripts and preparing draft grounds.

1. The appellant deposes that, if time is not extended, he will be deprived of the opportunity to seek leave to appeal so that he can challenge the Tribunal's exercise of the costs discretion.
2. The appellant has observed that the costs order is a 'monetary order capable of enforcement' and he deposes that, unless the operation of the Tribunal's decision as to costs is stayed, he is 'concerned that enforcement action may be taken against [him] before the Court determines [his] leave application, causing significant prejudice that may not be able to be undone'. The reference to a 'stay' in this regard is a reference to the appellant's stay application in the Federal Court, which I will explain below.
3. It is apparent from the materials before the court that the respondent acted expeditiously to enforce the costs order.
4. In this regard, the appellant has produced a certificate of judgment issued by the Magistrates Court in respect of proceedings brought by the respondent for enforcement of the costs order. The certificate of judgment was issued by the Magistrates Court on 8 October 2025.
5. The respondent thereafter served a bankruptcy notice on the appellant, dated 23 October 2025. The bankruptcy notice required payment of the sum of $14,602.50 within 21 days of service. It is apparent the appellant has not, to date, paid the amount owing to the respondent by way of costs. Indeed, the respondent has initiated proceedings in the Federal Court to have sequestration orders made against the appellant. The appellant has explained that the hearing of the creditor's petition has been scheduled for 10 March 2026.
6. The appellant has also explained that he filed a stay application in the Federal Court in response to the petition. The appellant deposes that the respondent 'will suffer little prejudice if a short stay is granted pending the determination of leave', whereas the appellant 'will suffer substantial prejudice and bankruptcy' if enforcement of the costs order occurs before this court can consider the appeal.[15]

1. The court has not yet heard from the respondent in relation to the application for an extension of time. As I will explain, it is not necessary to do so. This is because I am satisfied on the materials available that the application for an extension of time should be refused.
2. The first consideration to address is the length of the delay. The decision in question was made on 18 July 2025, following the initial hearing on 16 May 2025. The appellant had until 15 August 2025 to file an appeal. The notice of appeal was only filed on 17 December 2025, some four months after that deadline had expired.
3. A delay of four months is lengthy, particularly when viewed in the context of the nature of the decision at first instance, being a decision which required payment by the appellant of a sum of money to compensate the respondent for the legal costs he had incurred in opposing the application. The Tribunal characterised the underlying application as an abuse of process. In that context, a prompt challenge to the decision was required, in my view.
4. The second consideration is the appellant's explanation for the delay. The appellant has explained that he is involved in various other legal proceedings and the pressures of attending to matters for the purposes of those proceedings impacted his ability to challenge the Tribunal's decision in a timely manner. He points to other pressures as well, including his work and parenting commitments.
5. The court is conscious of the pressures of litigation on those members of the community who are not legally represented. The constraints arising from the appellant's other litigation matters provides some explanation for the delay here, but those constraints cannot serve as a complete answer for that delay.
6. Busy litigants cannot simply decide for themselves that particular matters will be given a lower priority in their own self-selected running list of litigation tasks. Rather, a party is obliged to prioritise matters according to the time requirements established by Parliament, or by the rules of the court. To allow litigants to decide their own priorities would be to seriously undermine the policy which drives the imposition of time limits set by Parliament and by the rules.
7. The third consideration is the prospects of the appellant succeeding in the appeal. This requires some examination of the merits of the appeal, although it is unnecessary at this stage to undertake a deep analysis of the substantive issues raised by the proposed appeal.
8. To put the present appeal in context, it is to be remembered this is an appeal only against the award of costs in favour of the respondent, not against the decision to dismiss the application. Further, the Tribunal member gave oral reasons for the decision to award costs, outlining the relevant statutory provisions and the applicable legal principles at some length, including the principles expressed in the Court of Appeal's decision in Western Australian Planning Commission v Questdale Holdings Pty Ltd,[16] and various decisions of the Tribunal itself on costs.[17]
9. In considering the question of costs, the Member expressly recognised that the 'usual order as to costs' had no application. Rather, the statutory framework required the Tribunal to assess whether an exercise of the costs discretion was fair and reasonable in all the circumstances of the case.[18] Further, the Member recognised the respondent carried the onus to demonstrate that a costs order should be made.
10. In exercising the discretion, the Member noted that a failure by a party in advancing certain contentions at trial did not signify that the party had acted inconsistently with the statutory objects of the Tribunal in s 9 of the SAT Act, such as the requirement that proceedings be conducted fairly and in accordance with the substantial merits and with as little formality and technicality as possible, so as to minimise the costs to the parties. The Member was also conscious that applications under the GAA should not be made lightly given the intrusive nature of such applications, and noted the need for an applicant to have a reasonable belief, objectively grounded, that a person is no longer capable of managing his or her affairs. That said, the Member acknowledged that the failure of a weak case did not necessarily give rise to, or justify, the making of a costs order.
11. As I have earlier explained, the Member provided detailed oral reasons for her conclusion that the application should be dismissed, and for her conclusion that the proceedings were an abuse. The Member was not satisfied the appellant held the necessary reasonable belief to ground the application. With respect, the available evidence supports that conclusion. The application thus failed at the threshold level of capacity, with the Member concluding that:[19]

Despite being informed at the hearing that capacity was a threshold issue before orders could be made, and acknowledged such benchmarks, [the appellant] persisted that he could not stand by without making this application. This raises questions about whether [the appellant] holds genuine concern held in good faith about [the respondent's] wellbeing if he was prepared to continue with such an intrusive and delicate application without accepting the thresholds that must be crossed as to [the respondent's] decision-making capacity.

1. Further, the Member characterised the appellant's attitude in making serious allegations against two other persons as 'cavalier':[20]

Similarly, I am concerned about [the appellant's] cavalier attitude towards making allegations of, essentially, coercion and exploitation by [C and E] towards [the respondent], in the sense that they were said to have convinced [the respondent], to appoint them as directors without any basis for such assertions. This has impaired the tribunal's objective to determine proceedings fairly and in accordance with the substantial merits of the case and to act as speedily as practicable as it required [C and E] to have to file sworn testimony to refute such baseless allegations and for the tribunal to have entertained such allegations which, as it turned out, was made without any evidence whatsoever.

1. The Member's reasons for decision are thorough, clear and persuasive, and consistent with established principles. The Member plainly formed the view that the application ought not to have been brought by the appellant and was critical of the lack of recent evidence to sustain the appellant's subjective concerns for the respondent. Having reached the conclusions she did, the Member also recognised the legal rationale for the proposed costs order was not to punish the appellant but to compensate or reimburse the respondent.
2. Following her assessment of the quantum of costs claimed by the respondent, the Member declined to order the entire amount sought, undertaking a review of the time spent by the legal practitioners and of the various tasks said to have been involved, and then ordering a reduced amount.
3. The appellant asserts four grounds of appeal. Whilst each is superficially directed at raising questions of law, as is required by s 105 of the SAT Act, none of the stated grounds can be described as enjoying much in the way of prospects of success. In my view, the proposed grounds are extremely weak, having regard to the material before the Tribunal and the reasoning process of the Member which I have earlier summarised. Further, any attempt to challenge the quantum of the costs order, as a question of law, would be doomed to fail, in my opinion.
4. The final matter to address is that of prejudice to the respondent. The primary prejudice which the court can infer in this regard is the delay in payment of the costs order which was made by the Tribunal on 18 July 2025 and, I think importantly in this case, the incurring of further costs by the respondent to enforce the Tribunal's order.
5. Ordinarily, the appellant ought to have filed any appeal by 15 August 2025. As we know, the appellant did not challenge the order within that time frame. In the period thereafter, the respondent brought enforcement proceedings in the Magistrates Court and obtained a certificate of judgment. In reliance on that certificate, the respondent then caused a bankruptcy notice to be issued. It is concerning that the appellant did not seek to challenge the costs order until he lodged the internal review documentation on 24 November 2025, even though he was aware from at least around 23 October 2025 that the respondent was pursuing enforcement steps against him.
6. Giving consideration to these matters, in all the circumstances, I am unpersuaded that the extension of time should be granted. The delay is lengthy but is explained in part by the appellant's busy litigation agenda and other personal pressures, together with his erroneous decision to file review proceedings in the Tribunal.[21] However, the four month period has not been wholly explained by the appellant and, as I have said, I have concerns about the appellant's personal assessment that this proposed appeal was not as urgent as his other litigation matters and could be dealt with after he had attended to those other matters. The prospect of an appeal being filed against the costs order ought to have been given a much greater priority by the appellant, and not brought only once the appellant appreciated that the costs order was being actively enforced by the respondent.
7. Fundamentally, I do not in any event consider the appeal, as presently formulated, has strong prospects. Indeed the appellant's challenge appears to be extremely weak. In form, at least, the grounds appear to raise questions of law, but in truth they essentially seek to challenge the factual findings made by the Member. The grounds advanced by the appellant do not involve any contestable questions of law, in my view.
8. An appeal against a costs decision, particularly one grounded on an assessment that the underlying proceeding was an abuse of process, should be brought promptly. The purpose of the costs order made by the Member was to compensate the respondent, at least in part, for the legal costs he had incurred in resisting the failed application brought by the appellant.
9. The respondent, for his part, acted promptly to enforce the order through his solicitors, which ought to have accelerated the appellant's decision to lodge an appeal, rather than delay the matter further. The additional costs and expenses spent by the respondent in these circumstances is a factor which is relevant to the extension question, pointing to additional prejudice to the respondent caused by the further effluxion of time. It provides further support for the conclusion that leave to appeal out of time should not be granted in all the circumstances.

1. I will therefore refuse the appellant's application for an extension of time to appeal against the Member's costs order which was made on 18 July 2025. As a result, the appeal itself will also be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lawrence v Cooperative Bulk Handling Ltd [2017] WASC 24 (S) [9] (Corboy J).

[2] The considerations specified in s 87(4) are not presently relevant.

[9] ts 7 - 8 (SAT hearing on 18 July 2025).

[10] ts 14 (SAT hearing on 18 July 2025).

[11] The fifth stated ground is 'Such further grounds as may be identified upon receipt of the Tribunal record and/or transcript'. At the hearing, it became evident that the appellant also wished to challenge the Member's assessment of the quantum.

[12] Engwirda v Owners of Queens Riverside Strata Plan 55728 [2019] WASCA 190 [97] (Vaughan JA, with whom Murphy and Mitchell JJA agreed).

[14] Affidavit sworn 17 December 2025 [11].

[15] Affidavit sworn 17 December 2025 [15].

[16] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 (Questdale Holdings).

[17] Including Summerville and Department of Education and Training & Ors [2006] WASAT 368 (S) (Barker P); Chew and Director General of the Department of Education and Training [2006] WASAT 248 (Eckert DP, Toohey M, and Professor Mulvey M); and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) (Chaney P, Raymond M, and Anderson M).

[18] Questdale Holdings [46] - [50] (Murphy JA, with whom Martin CJ and Corboy J agreed).

[19] ts 11 (SAT hearing on 18 July 2025).

[20] ts 12 (SAT hearing on 18 July 2025).

[21] There was also a delay in the provision of the transcript by the Tribunal although that appears not to have been causative of the delay on the appellant's part.