Guardianship and administration - Applicant failed to give proper attention to the basis of the guardianship and administration applications - Costs - Guardianship and administration legislation is protective in its intent - Applicant has a responsibility to consider the substance of (and intent behind) applications for guardianship and administration before proceeding - Applicant to have a reasonable belief, objectively grounded, that the person for whom protection is sought is no longer capable of managing his or her affairs

Equal Opportunity Act 1984 (WA)

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(b), s 16(4), s 43, s 64, s 65

State Administrative Tribunal Act 2004 (WA), s 47, s 87(1), s 87(2), s 88

1 On 12 November 2007, the Tribunal dismissed applications for administration and guardianship in respect of PJC made by his son RJC under the Guardianship and Administration Act 1990 (WA).

2 The applications were dismissed because there was no evidence to support the contention of RJC that PJC was no longer capable of managing his personal and financial affairs.

3 PJC made an application for costs of $7,058.60 against RJC pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).

4 Despite being put on notice, prior to the hearing of the administration and guardianship applications, that the medical information available to the Tribunal would likely not displace the presumption of capacity under the Guardianship and Administration Act 1990, RJC proceeded with the applications.

5 RJC was unable to provide the Tribunal with any information of probative value both prior to and at the hearing to give weight to his contention that PJC could not manage his affairs other than an assertion that a daughter of PJC was influencing his decision­making.

6 The Tribunal found that despite the protective intent of the Guardianship and Administration Act 1990 and the fact that RJC was unrepresented in the proceedings, RJC had failed to give proper attention to the basis of the applications for administration and guardianship.

7 In the circumstances, the Tribunal ordered that RJC contribute to the legal fees and disbursements incurred by PJC in the sum of $3,697.80.

8 These reasons relate to an application for an order for costs under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

9 The application is made by PJC against his son RJC who had made applications for guardianship and administration in respect of PJC under the Guardianship and Administration Act 1990 (WA) (GA Act).

10 The Tribunal had dismissed the applications for guardianship and administration on 12 November 2007. An application for costs was foreshadowed but there were a number of lengthy delays in receiving submissions from the parties, the last of the submissions having been received by the Tribunal in August 2008.

The applications for guardianship and administration

11 RJC had applied for the making of guardianship and administration orders for PJC on the basis that PJC's daughter (NG) 'controls his thoughts [and] actions because he cannot remember' and that she 'tells [him] what to say and do to her advantage. She told him nobody will look after him.' RJC stated in his applications that he was prevented from speaking to PJC by NG who had threatened him with a restraining order. He sought an independent assessment of PJC's capacity.

12 The solicitor for PJC had written to the Tribunal in response to the applications stating that RJC had been involved in litigation against PJC since at least 1996. The litigation had involved claims against PJC in relation to profits derived from the operation of commercial facilities, the will of PJC's deceased wife and an interest in land owned by PJC.

13 It was submitted on behalf of PJC that RJC has delayed the various actions in the expectation that PJC would die (at the time of the Tribunal hearing PJC was 96 years of age).

14 The solicitor provided the Tribunal with a number of medical assessments dating from 2004 and 2006. The Tribunal had also been provided with a further report by PJC's general practitioner.

15 These assessments, on their face, appeared to indicate that PJC had the capacity to manage his own affairs. They were:

• A report from Dr SH, psychiatrist, dated 25 February 2004 stating that PJC had full mental capacity to make a will.
• A report from Dr NW, PJC's general practitioner of 14 years, dated 15 September 2006 stating his view that PJC remained both physically and mentally well. The report stated that PJC had suffered a transient ischaemic attack in August 2005 from which he had made a full recovery.
• A report from Dr NDF, psychiatrist, dated 6 October 2006 in which PJC was assessed as having the capacity to manage his own financial affairs including making decisions about borrowing funds and allowing a third party access to his farm.
• A further report from Dr NDF dated 6 October 2006 in which he assessed PJC as capable of being able to take into account various aspects of the dispute with his son [RJC] and make his own decisions in that regard.
• A further report from Dr NW dated 22 September 2007 in which he assessed PJC as not having any impairment of his cognitive ability or mental function.

16 In the knowledge of the medical assessments the Tribunal wrote to RJC (copied to the solicitor for PJC) setting out what was required before guardianship and administration orders could be made and stating that orders were unlikely to be made on the basis of the medical reports alone.

17 RJC was invited to provide the Tribunal with the medical or other evidence upon which he intended to rely on in his application that PJC was no longer capable of making financial and personal decisions and was in need of an administrator and guardian.

18 In a submission in response to the Tribunal's request RJC stated:

I would like to have [PJC] independently assessed by an impartial party, as the assessments presented to this office have already been sighted through previous legal action. It is my belief that these documents were conducted by his daughters' [...] family doctor, therefore cannot be viewed as impartial or independent...Through [NG]'s interference, [PJC] has ended up embroiled in a legal battle. This should never have been allowed to occur.

19 RJC's submission included a reference to the will of his late grandmother and his assertion that certain shares held by the estate were in the hands of PJC as late as January 1996 and had not been distributed to the grandchildren (of which he is one).

20 A further submission was received from RJC prior to the hearing of the administration and guardianship applications in which he posed a number of questions in respect of a schedule of payments allegedly made on behalf of PJC by NG for the period 11 October 1994 to 6 October 1995. RJC also stated in the submission his belief that the solicitor for PJC was taking instructions from NG rather than PJC who was 'not aware of the great majority of the situation'.

21 On the day of the hearing of the guardianship and administration applications, the solicitor for PJC submitted a further report by Dr NDF, the psychiatrist who had assessed PJC in 2006. The report was dated 25 October 2007.

22 In his report Dr NDF stated that he had interviewed PJC twice in October 2007 and had also interviewed his daughters. He assessed PJC as still capable of managing his own affairs and business. He noted that PJC relied on his daughter to read documents and arrange meetings but understood this arrangement had been in place for many years given PJC's limited education. Dr NDF did not consider that there had been any substantial change in PJC's capacity since 2006. There was some evidence of some decline in short­term memory and greater difficulty with hearing but these did not render PJC incapable of managing his own affairs.

23 At the hearing RJC stated he did not dispute that PJC could look after himself but said that he required help with his 'money affairs'. RJC stated that PJC could not complete any paperwork on his own and even when things were explained to him:

When it's explained to him he still can't do it because he ­ he'll tell you himself that he didn't go to school in Australia at all. He went to school in Italy till he was ­ at a very young age when he come [sic] here. He never went back to school, that's all. (T:8)

24 RJC said that although he had not had contact or spoken with PJC for about 13 years he was of the view that PJC had been unable to make his own financial decisions when he last had contact with him. The reason given by RJC was:

Because of the ­ because of the way that they have done the ­ the affairs after my mother died [1993]. Nothing has been done properly. Everything's been done to how they feel like ­ how my sister [NG] feels like. (T:9)

25 RJC referred to his late grandmother's estate and the alleged lack of distribution of certain shares to the grandchildren (see above) and how in his view PJC had not adequately fulfilled the role of executor of his late wife's (RJC's mother) will.

26 RJC stated that he did not dispute what the medical practitioners said in the reports in respect of PJC's capacity to make decisions about his financial affairs but nonetheless was of the opinion that PJC's administrative affairs were not properly taken care of.

27 Counsel for PJC submitted that the applications for guardianship and administration were ill-founded. The applications were motivated by greed and in particular as an attempt by RJC to derail the Supreme Court proceedings he had commenced against PJC.

28 Counsel submitted that although the Supreme Court proceedings had been initiated by RJC, he had unnecessarily delayed their progress such that PJC had taken the unusual step of entering the matters for trial.

29 The Tribunal had received written submissions from another son of PJC and two daughters (NG and GR) all of whom did not support the applications and who were of the view that PJC was capable of making his own decisions.

The Tribunal's decision on the applications for administration and guardianship

30 Under the GA Act, before the Tribunal can consider the need for an administrator it must first be satisfied that the person for whom the application has been made is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate (s 64(1)(a)). Mental disability is defined to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia (s 3).

31 In respect of guardianship, the Tribunal must first be satisfied that the person for whom the application is made is incapable of looking after his own health and safety or incapable of making reasonable judgments in respect of matters relating to his person or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others (s 43(1)(b)).

32 A person is presumed to be capable until the contrary is proved to the satisfaction of the Tribunal (s 4(2) of the GA Act).

33 The Tribunal found that on the medical evidence it could not be satisfied that the presumption of capacity had been displaced and therefore dismissed both applications (T:21).

34 At the hearing for the applications for guardianship and administration, counsel for PJC foreshadowed an application for costs against RJC. He submitted that the cost of the most recent report of Dr NDF should form part of a costs order, that cost being $2,197.80. In respect of the legal fees counsel stated:

...the other would be a cost for the legal costs and expenses; a ball park figure of, say, $1,500 might be appropriate bearing in mind the number of documents that the Tribunal has provided to me, the number of letters I've had to write, including contacting the psychiatrist and finding out whether he was able to do another report, writing to him, dealing with [PJC]. It's very hard to calm him down sometimes, so some ­ what would be a relatively short meeting could turn into a great lengthy meeting because he get angry, perhaps rightly so, but that's a separate issue. He does get angry. He's an elderly gentleman; 96. I don't think we can use 'middle age' as appropriate language any more. (T:14)

36 PJC, through his legal representative, was requested to present an itemised account of the legal fees and RJC was given the opportunity to respond.

37 A 'Bill of Costs' was subsequently received which stated the costs for the period 18 September 2007 to 12 November 2007 to be $4,328.00 plus GST (the cost of Dr NDF's report was not included as a disbursement).

38 The initial submission of RJC in response to the application for costs was as follows:

• The starting position of s 87 of the SAT Act is that parties bear their own costs and there was nothing in the action undertaken by RJC to suggest this should be displaced. RJC was unrepresented in the proceedings but did not delay the hearing or otherwise conduct himself unreasonably. On the other hand, PJC by his solicitor, protracted the course of the hearing by accusations of personal gain and/or greed by RJC.
• RJC had genuine concerns about the mental condition of PJC because his affairs and communications seemed to be directed via one of his daughters; the same daughter appeared to have conduct of many of his financial affairs without apparent recourse to PJC himself; the conduct of the daughter 'gave the ostensible appearance of undue influence' over the affairs of PJC and PJC was involved in proceedings where it was important that he exercised his own volition.
• It was in the interests of all parties that the mental condition of PJC be clarified.
• RJC did not seek to be appointed PJC's guardian and administrator, proposing instead that independent appointments be made.
• The bill of costs was excessive in that significant portions related to discussions, file reviews and review of the SAT Act; discussions with NG (who was not a party to the application); medical discussions and appointments with doctors from whom no fresh evidence was presented; issues of confidentiality that were not necessary to the application and an item ($186) related solely to the costs themselves.
• Most of the legal work claimed was arguably of a nature which a competent law clerk could have been expected to do at one half the claimed expense. In addition, all work appeared to be rated closely to the Supreme Court scale which was unreasonable given the nature of the work in respect of the applications.
• The only item that appeared to be reasonably costed was the solicitor's appearance at the hearing ($403), however, the claim for costs should be dismissed wholly.

39 The solicitor for PJC submitted the following in response:

• He acknowledged that an initial claim of $1,500 plus the costs of the report of Dr NDF had been made at the hearing but saw no reason to change the quantum in the larger bill of costs. The enquiries made and work done were all justified by the nature of the application and the possible consequences of any order made by the Tribunal.
• The claim was for $7,058.60 represented by the legal costs of $4,860.80 ($4,328.00 plus GST) and the cost of Dr NDF's report of $2,197.80.
• The documents submitted by RJC in respect of the applications for guardianship and administration were more than 12 years old and much of that material had been the subject of previous litigation. RJC was unable to point to any substantial matters in recent years whereby there was any indication that PJC was not able to look after his own affairs.
• The comments by RJC in respect of the alleged control of PJC by his daughter NG were inappropriate in the least. At all times RJC was fully aware of the nature of contact that PJC had, not only with his daughter but with other members of his family, all being frequent contact (as PJC lived with his daughter and her family).
• The Tribunal had written to RJC advising him of the medical reports from 2004, 2006 and the 2007 report from PJC's general practitioner of 14 years, all assessing PJC as capable. However, RJC continued with his applications and as a consequence the costs of Dr NDF's assessment were incurred.
• The submissions of RJC were disingenuous in the context of continuous litigation between the applicant and the respondent over a number of years. Had an administration order been made by the Tribunal this may well have had adverse consequences upon the defence of the present Supreme Court proceedings which included a substantial claim over PJC's farm worth in excess of $1,000,000. The Court proceedings were the true reason for the applications to the Tribunal.
• Section 47 of the SAT Act refers to justified proceedings and s 87 and s 88 provide remedies in relation to costs orders.

40 The final submission of RJC reiterated his contention that he had a justifiable concern about the mental condition of PJC so as to warrant the applications for guardianship and administration and that in point of fact the mental capacity of PJC was of material importance in the Supreme Court action.

41 The medical reports provided by the solicitor for PJC referred to opinions made at an earlier time and displayed no adequate contemporaneous review.

42 RJC submitted that a current review of PJC's capacity was justified in the circumstances. PJC's daughter signed all his cheques, took him wherever he needed to go (medical, dental, legal, banking, purchasing and social) and assisted him with all daily activities. She was plainly in an influential position in a situation where substantial litigation was pending.

43 It was further submitted by RJC that the assessment and report of PJC's capacity was very extensive and undertaken by a specialist (psychiatrist). The extent of the assessment was under the control of PJC alone.

44 The starting point in relation to costs in the Tribunal is that the parties bear their own costs: s 87(1) of the SAT Act. Notwithstanding this general position, s 87(2) of the SAT Act confers on the Tribunal a broad jurisdiction to award costs in appropriate cases.

45 In matters heard under the GA Act a party may apply to have costs paid from the estate of the person for whom an application is made: s 16(4) of the GA Act; see also LC and JS [2007] WASAT 127).

46 The matter before me, however, is an application under s 87(2) of the SAT Act for RJC to pay the costs of PJC in the applications made under the GA Act.

47 The proper approach to costs pursuant to an application under s 87 of the SAT Act in the various areas of the Tribunal's jurisdiction has been discussed in a number of cases (see, for example, Pearce and Germain [2007] WASAT 291 (S)).

48 In Summerville and Department of Education [2006] WASAT 368 (S), (Summerville), Barker J set out some of the circumstances in which an award of costs might be made under the Equal Opportunity Act 1984 (WA) without limiting the discretion ultimately available to the Tribunal under s 87(2) of the SAT Act.

49 The observations of Barker J in Summerville found at [23] ­ [44], in my view, have equal application in costs matters under the GA Act when a party to the proceedings is seeking costs from another party.

50 Of particular relevance to the application before me are the observations by Barker J at [36] ­ [38]:

In relation to the question of an incredible or implausible case that has no foundation in fact, or a case that is adjudged as being so weak that it should not have been maintained, the relative weakness of the unsuccessful party's case has also resulted in the award of costs against that party: see Gonsalves v MAS National Apprenticeship Services [2007] VCAT 64, in which the applicant's sexual harassment claims were described at [15] as based on a 'flimsy premise'. See also Styles v Murray Meats Pty Ltd [2005] VCAT 2142 at [21]. These latter Victorian cases, however, it should be noted, were decided by reference to s 109(3) of the Victorian Act which requires the Victorian tribunal to consider 'the relative strengths of the parties' cases.

Nonetheless, in my view, proceedings that should not have been maintained against a party because there really was no case to answer, is a fact that may be taken into account by this Tribunal in deciding whether to award costs against the unsuccessful party who maintained that case.

It has also been held that it may be appropriate to award costs against a party who pursues a claim which is 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**)**. In Wilson v Phoenix Contracting Services (1998) EOC 92­936 the Victorian Anti­Discrimination Tribunal observed at [2]:

[If the complainant] did 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.

51 As to the intention of a party in bringing an action and its relation to an award of costs, Barker J stated the position at [43]:

Additionally, a party who has acted with malice in pursuing or defending proceedings may well have costs awarded against them. The fact that a party believes that he or she acted appropriately and had an arguable case may be insufficient to prevent the costs order being made: see Holdaway v Qantas Airways Ltd (1992) EOC 92­395 at 79,054; Willis v State Rail Authority of New South Wales (No 3) (1992) EOC 92­456 at 79,282.

52 In making an award of costs Barker J noted that the applicant in Summerville had a number of opportunities to decide not to press her claims against the particular respondent. His Honour found that even though the applicant was self-represented in the proceedings, she failed to give any proper attention to the true basis of her claim against the respondent. His Honour concluded at [53]:

In this case, I consider that, whilst the starting out position in the Tribunal is that it is a 'no cost' jurisdiction, the circumstances of this particular case, where Ms Summerville [the applicant] maintained the proceedings against Mr Furtado [the respondent] in circumstances in which, taken at their highest, there was no cause for complaint against Mr Furtado under the EO Act, should result in her contributing towards the costs incurred by Mr Furtado.

53 As earlier stated in these reasons, before orders for guardianship and administration can be made for a person, the Tribunal must be satisfied that a person is no longer capable in the sense referred to in s 43 (guardianship) and s 64 (administration) of the GA Act.

54 There is also provision under s 65 of the GA Act for the Tribunal to make emergency provision for the protection of a person's estate where it appears to the Tribunal that the person may be someone in respect of whom a declaration should be made under s 64(1) and where it is necessary to make immediate provision for that protection.

55 Under s 4(2)(b) of the GA Act a person is presumed to be capable of making reasonable judgments in respect of matters relating to his person and to his estate, until the contrary is proved to the satisfaction of the Tribunal.

56 Whilst it is accepted that the primary intent of the GA Act is the protection of adults under a disability (see EM Heenan J in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44]), and this can result at times, in the making of applications of a somewhat exploratory nature, it is nevertheless the case that an applicant has a responsibility to consider the substance of (and intent behind) the application that he or she is making before proceeding with the application.

57 The making of administration and guardianship applications under the GA Act are very intrusive and lead to the exploration of sensitive issues in a person's life. They should not be made lightly.

58 A fundamental element then, in the task for an applicant, is the need to have a reasonable belief, objectively grounded, that the person for whom protection is sought is no longer capable of managing his or her affairs.

59 In the case before me, the Tribunal found that the applications for guardianship and administration made by RJC were without merit. Moreover, prior to the hearing, RJC was given notice of the significant medical information then before Tribunal which strongly suggested that the presumption of capacity likely could not, on that information, be displaced in respect of PJC.

60 I do not accept the submission of RJC that the information was not current given that PJC's general practitioner of 14 years had provided the Tribunal with his up­to­date assessment of PJC's capacity which was consistent with earlier assessments.

61 RJC was given the opportunity to provide the Tribunal with whatever objective information was available to him to substantiate his contention that PJC was in need of protection, but was unable to do so. I agree with the submission of counsel for PJC, that the information ultimately provided both prior to and at the hearing by RJC was many years old and of no probative value.

62 What was provided by RJC was an assertion that as PJC's daughter, NG, assisted him in various activities, she was therefore effectively making the decisions for him. This issue is dealt with in the October 2007 report of Dr NDF and I accept that his assessment of PJC as capable of managing his affairs was made in the knowledge of the assistance given to him by NG.

63 In these circumstances I find that RJC was aware of the lack of the substance of his case but chose to continue with the applications with no real prospect, on the information then available, of having the Tribunal make the orders he was seeking.

64 I further find that the context in which RJC made the applications was his Supreme Court action against PJC, the fact that these actions (although of many years standing) were progressing to trial and that an order of the Tribunal might assist him in the conduct of the action. If, as RJC submitted, he held a belief that PJC had lost the capacity to manage his affairs many years ago (referencing the alleged conduct of PJC as executor of his late wife's estate), then it would not be unreasonable to have expected him to have made applications under the GA Act much earlier.

65 I am satisfied the application for costs made by PJC should succeed as it clearly corresponds to the circumstances envisaged by Barker J in Summerville in which the discretion available under s 87(2) of the SAT Act can be exercised.

66 As to the quantum of costs that should be awarded, I am satisfied that the cost of the assessment and report of Dr NDF ($2,197.80) should be included as it was reasonable for PJC to seek further specialist assessment given the gravity of the applications made by RJC.

67 In respect of the legal expenses of PJC, despite the seriousness of the situation that arose from the proceedings, I am of the view that 'defending' the applications was encapsulated in the obtaining of the further specialist assessment and that the original submission of PJC's counsel that the sum of $1,500 was the likely estimate of legal fees, is an amount sufficient to deal with that requirement.

68 In these circumstances I make the following order:

• The applicant, RJC, pay to PJC the sum of $3,697.80 by way of costs as a contribution to the legal expenses and disbursements incurred by PJC in the proceedings brought by RJC under the Guardianship and Administration Act 1990 (WA).

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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