MM [2025] WASAT 103 (23 September 2025)

1. The ordinary meaning of 'relative to' is having reference or regard to, or being relevant or pertinent to.[45] A report about a person's capacity is clearly relevant to the question of whether the Tribunal should appoint an administrator for the protection of that person.
2. The SAT Act provides that the Tribunal may appoint an expert to assist it in relation to a proceeding whether by providing advice, professional services or by giving evidence.[46] The Tribunal may order a party to pay the Tribunal's costs of obtaining the assistance of the expert only if the Tribunal gives a party notice of the intention to obtain such assistance and gives that party an opportunity to be heard in respect to it and the costs of obtaining that assistance.[47]
3. To the best of my knowledge, there are no published decisions where the Tribunal has ordered that the costs of expert evidence be paid from the estate of the proposed represented person pursuant to s 16(4). However, I am satisfied based on the provisions I have referred to that if notice is given, the Tribunal has discretion to prepare orders to obtain an expert report with the costs of same to be paid out of the proposed represented person's estate.[48]
4. Alternatively, if notice was not given and the Tribunal was satisfied that obtaining the report was in the proposed represented person's best interests, then the terms of s 16(4) would still allow the Tribunal to exercise the discretion make an order that the costs of the report that was already obtained be paid from the estate of the person.

Application of s 16(4) to YY's application for costs

1. I accept that YY genuinely believes that MM lacks capacity due to her inaction in respect of renegotiating the Settlement Deed and her inability to understand her dire financial predicament, in YY's view, resulting from the agreement reached with SS. However, I am satisfied that:

(a) YY made the application due to her concern that she may become financially responsible for MM and VV's financial support in the future. YY gave evidence that she would need to earn an extra $100,000 per year to have $75,000 available to support MM and VV;[49]

(b) YY gave evidence that were it not for her concerns about VV, she would likely not have made the application;[50] and

(c) the conflict between YY and SS has impacted on YY's view of the reasonableness of MM's decision-making, as YY is unable to understand why MM would trust SS to pay her living expenses in accordance with the informal agreement reached, which is in conflict with YY's fixed, negative view of her brother.

1. I am therefore satisfied, and I find, that YY has not acted solely in MM's best interests in making this application. She has acted in what she perceives to be VV's best interests and in her own interests due to her concerns about being financially responsible for VV and MM in the future. YY has also allowed the conflict with her brother to cloud her judgment.
2. I am further satisfied, and I find, that obtaining the Opinion was not in MM's best interests. I decline to make an order pursuant to s 16(4) of the GA Act that MM reimburse YY for the cost of the Invoice. It was YY's choice to contact Dr J to engage and brief her to prepare the Opinion.

1. Section 87 of the SAT Act refers to the 'costs of a party'. Where costs are to be awarded, the Tribunal may also make an order for compensation in accordance with s 87(3) which states:

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 any 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.

1. It is therefore open to the Tribunal to make an order that another party, such as SS, reimburse the costs of the Invoice.
2. However, I am not satisfied that such an order is appropriate as SS played no part in obtaining the Opinion, which I have found was not in MM's best interests.
3. I will dismiss YY's application for costs.

1. SS submits that a costs order should be made against YY for the following reasons:

(a) YY could have not have reasonably believed that MM is or was at any time incapable of managing her affairs, and the application was brought due to a perception that the sale of 50% of the Property to SS was beneficial to him as opposed to a genuine, objective belief that MM was no longer capable of managing her affairs. YY views the agreement reached as problematic but has failed to link that to MM's capacity;

(b) the application was an abuse of process, as the application was made to delay and/or defeat the Transfer, not because MM had a cognitive impairment, and YY has sought to use the GA Act to advance her own financial interests;

(c) YY's conduct unnecessarily prolonged the resolution of the dispute by engaging Dr J to prepare a report without consulting MM or SS, and providing information directly to Dr J that was not available to MM at the time of the examination, placing her at a significant disadvantage;

(d) YY rejected an offer made by SS on 7 March 2025 to withdraw the application, and when it was not withdrawn, caused the need for the application to be determined at the Second Hearing; and

(e) the seriousness of the allegations made and the imposition of the Public Trustee as the emergency administrator made it reasonable for SS to obtain legal representation in the proceeding.

1. YY contends that costs ought not be awarded to SS for the following reasons:

(a) as MM's enduring attorney, it was YY's responsibility to make 'the authorities' aware of MM's inability to make complex financial decisions for herself, due to the detriment that would be caused to MM's and VV's financial future;

(b) YY did not use the application for her own financial gain and it was made with genuine concern for MM;

(c) the focus of the Tribunal proceeding was MM's capacity, which SS's solicitors would have been aware of, so it was not necessary for SS to engage a solicitor to refute the allegations of elder abuse and coercive control. It was SS's choice to engage a solicitor; and

(d) YY did not prolong or delay the proceeding. YY did not accept the offer to withdraw as she believed that MM was struggling with her capacity and wanted to attend the Second Hearing to hear the results of the further assessment of Dr F.

1. I asked the parties why SS, rather than MM, engaged legal representation. MM explained that when she attended upon Palmos Legal with SS, she was advised by the solicitor that she did not need legal advice, but SS did.[51]
2. However, there are many complex features of this application, even for a person with capacity, and it would have been beneficial for MM to have the assistance of legal advice and representation. MM's solicitor could have obtained a copy of the Opinion on 7 February 2024 when it was filed, which would have provided ample opportunity to communicate with Dr J about her conclusions, and the documents and information provided by YY.
3. Taking into account the general principles in relation to costs I have referred to and the submissions of the parties, I am not persuaded that YY's conduct in any way caused SS to incur legal costs. I am therefore not persuaded that YY should make a contribution to SS's legal costs for the following reasons.
4. First, I am persuaded that YY believed that MM lacked capacity and that YY was genuine in her concerns for her mother and brother's financial security, in addition to being concerned about herself. YY had been discussing the perceived problems with the Settlement Deed with MM for 18 months and MM responded to YY's concerns in ways to 'keep YY happy' rather than being honest and direct with YY. MM went as far as attending meetings with Williams + Hughes when she did not want to and incurring the costs of those meetings and the preparation of the Draft Variation which MM had no intention of signing.
5. Objectively, YY's observations of her mother's behaviour may cause concern. MM indicated a level of agreement with the matters YY viewed as critical to MM's future, but did not follow through with YY's suggestions. She attended meetings with Mr Robertson but did not sign the Draft Variation. It was reasonable in my view for YY to be concerned about her mother's responses and lack of action to the concerns YY raised.
6. Second, I am satisfied that SS's intention in attending the Tribunal proceeding was to ensure the Settlement Deed was not disturbed and in turn, advancing his own financial interests. SS explained in detail at the First Hearing that he wanted to settle on the first 50% of the Property and purchase the second half, the cost of which was increasing. SS estimated that because he mortgaged and then sold his home to financially assist his parents, he has missed out on a capital gain of around $1,000,000, irrevocably harming his financial position.[52]
7. Third, I am satisfied that YY's conduct did not prolong the resolution of the proceeding. It was necessary for the Second Hearing to occur so that further evidence could be obtained from Dr F. YY independently sought the assistance of Dr J and MM independently sought the assistance of Dr F. It was therefore necessary, in my view, that Dr F be given Dr J's Opinion and other relevant documents to have the opportunity to reconsider his assessment of MM's capacity. MM agreed with this course of action. The only delay in the proceeding occurred when SS's solicitor disagreed with certain documents being provided to Dr F, taking an adversarial approach to protect SS's interests in ensuring that the Settlement Deed was not disturbed.[53]
8. Fourth, it was reasonable for YY to reject the offer made on 7 March 2025 to withdraw the proceeding. The Second Hearing was scheduled at the instigation of the Tribunal for the reasons set out above, and it is consistent with YY's stated concern for her mother. It is therefore reasonable that YY wanted to hear the updated evidence of Dr F. Further, an applicant can only withdraw proceedings with leave of the Tribunal.[54] I would not have allowed the application to be withdrawn prior to the Second Hearing as it was necessary to receive the further evidence from Dr F.
9. Fifth, in terms of the seriousness of the allegations made against SS, it was his choice to obtain legal representation to defend the Settlement Deed and protect himself against YY's allegations of abuse and coercive control. The Tribunal does not have jurisdiction to make findings or give remedies in respect of such allegations. The Tribunal has no jurisdiction at all if the presumption of capacity is not set aside. SS had the benefit of legal advice to that effect.
10. Sixth, there was nothing complicated about this matter in terms of SS's interests that required him to obtain legal advice and representation. SS is a sophisticated, professional party who capably advocated for, and advanced, his own interests at the Hearings.[55] The appointment of the Public Trustee as the emergency administrator is a routine measure taken by the Tribunal in matters where there is an immediate risk to the person's estate. MM communicated directly with the Legal Officer and Trust Manager at the Public Trustee, so I am satisfied that the involvement of the Public Trustee did not cause SS to incur legal fees.
11. Finally, the Settlement Deed was signed in February 2023, two years prior to the application being made, with all parties acknowledging that there were no concerns about MM's capacity at that time. Since then, SS agreed to pay, and has been paying, more of MM's expenses than was required under the Deed, which is not consistent with elder abuse. SS submitted at the First Hearing that the Settlement Deed was an enforceable agreement and even if he was presented with the Draft Variation to sign, he was not obliged to sign it if he did not want to. That is correct and is further evidence of SS's ability to advocate for himself.
12. The Tribunal will make findings about MM's present capacity and whether she needs an administrator now, meaning that any allegation of 'coercive control' or 'elder abuse' in respect of entering into the Settlement Deed or concerns about a conflict of interest with the solicitor acting for MM in 2023 would not be relevant.
13. I therefore make the following orders.

1. The application of [YY] for costs is dismissed.
2. The application of [SS] for costs is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[2] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; LP [2020] WASAT 25 at [48]; GC and PC [2014] WASAT 10 at [36].

[3] XYZ (Guardianship) [2007] VCAT 1196 (XYZ) at [65].

[4] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 32(2) and s 32(4).

[5] Legal Services and Complaints Committee and Robertson [2023] WASAT 127; Legal Services and Complaints Committee and Robertson [2023] WASAT 127 (S) and Robertson -v- Legal Services and Complaints Committee [2025] WASCA 92.

[8] Section 112(1) of the GA Act provides a conditional entitlement for the person for whom the application is made to have access to copies of all documents held by the Tribunal in relation to all proceedings relating to them.

[9] Clinical Neuropsychology Report and Opinion prepared by Dr J dated 7 February 2025 (Opinion).

[13] ts 42, 24 February 2025 and ts 30, 11 April 2025.

[15] Medical Report of Dr J dated 7 February 2025.

[16] Medical report of Dr L dated 20 January 2025.

[17] Report of the Investigator dated 17 February 2025.

[18] Report from Legal Directorate dated 19 February 2025.

[19] Report of Trust Manager from the Public Trustee dated 17 February 2025.

[20] ts 25, 24 February 2025 and ts 16, 11 April 2025.

[22] I confirm that the matters the subject of the decisions referred to in footnote 5 herein are completely unrelated to MM and SS.

[24] ts 27, 24 February 2025 and ts 23, 11 April 2025.

[26] T [2018] WASAT 128 at [35].

[32] YY provided the 2022 Email to the Tribunal on 9 May 2025 in support of her costs application.

[35] Email from YY to Dr L dated 4 December 2024.

[39] GD and AD [2005] WASAT 203.

[40] LC and JS [2007] WASAT 127 (LC and JS) at [41], citing Inquisitorial Processes in Australian Tribunals, Narelle Bedford and Robin Creyke, The Australian Institute of Judicial Administration Incorporated: March 2006: 15.

[41] Sections 34, 35, 66 and 67 of the SAT Act allow the Tribunal to seek documents and reports from parties and also from anyone else that may hold documents or information relevant to the proceedings.

[43] Stender and City of Cockburn [2025] WASAT 44 at [22] citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].

[44] Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] per EM Heenan J.

[45] Macquarie Dictionary (2013): 'relative to'.

[48] G v K [2007] WASC 319 at [98] - [99].

[55] ts 47 - 49, 24 February 2025 and ts 17 - 18, 11 April 2025.