Magistrate Hennessy, Member Rugless, Member Rainford, Member Lester, Member Stevens
Source
Original judgment source is linked above.
Judgment (26 paragraphs)
[1]
The application for internal review was brought by SRY.
Mr Crocker, counsel for SRY, argued that the Tribunal erred in finding that the application was 'not so unusual or out of the ordinary' as to warrant an award costs to the applicant. He argued that the Tribunal in the ordinary jurisdiction had erred in finding that the dicta of Parker P in Tronnolone v Edwards & Bryan[2016] SACAT 27 bore any direct application to the matter concerning HWS (noting that decision concerned a dispute between a landlord and a tenant). Furthermore, the applicant's counsel argued that, in any event, the decision of Member Rainford applied a different test to that set out in Tronnolone v Edwards & Bryan[2016] SACAT 27. He submitted that Parker P used the language of whether or not the matter was "no more or less meritorious than most cases that come before the Tribunal" but Member Rainford used the terminology of whether the matter under the G&A Act was "not so unusual or out of the ordinary" as to warrant a costs order. Mr Crocker argued that there was a difference in the two approaches. Further he argued that Member Rainford made no reference to any consideration as to whether s 57(2)(d) of the SACAT Act been engaged, namely, whether there was "any other matter considered relevant by the Tribunal ".
The main argument advanced by the applicant under s 57(2)(d) of the SACAT Act as a 'relevant matter' bearing on the exercise of discretion to order costs was that SRY was required to bring the application to protect her mother's interests as a result of the invalidity of the enduring powers of attorney and guardianship. The argument advanced is that, had those documents been lawfully witnessed, there would unlikely have been any opportunity or cause for these proceedings. Mr Crocker repeated those submissions during the course of argument on the internal review, particularly in support of the fact that a costs order should be made against HWS's estate as opposed to the second and third respondents.
The applicant submits that the only reason that she brought the application was as a consequence of HWS having signed instruments that were improperly witnessed by a registered pharmacist. The applicant argues that, had instruments been appropriately witnessed, there would have been no occasion for either SRY, or the second and third respondents, to question her decision-making authority regarding their mother, or to file applications in the Tribunal seeking guardianship and administration orders. For that reason the applicant argued that HWS should bear the costs of her daughter SRY bringing the proceedings to the Tribunal as HWS had intended to create a 'certain legal relationship with SRY' when she purported to execute the documents and that she had failed to ensure that she had validly created the intended relationship. To this extent, this alleged failure by the protected person was said to have brought about the very problem that needed to be addressed by the proceedings.
In summary, I understand that the argument is that HWS was 'at fault' and should consequently bear the costs of the proceedings.
The applicant also argues that it was a discharge of her 'moral and legal obligation' to bring the proceedings in order to give effect to her mother's wishes and that she has incurred considerable expense in doing so.
The applicant further submits that the proceedings were made more complex by the conduct of GGD and DTU, putting her to considerable expense. Mr Crocker submitted that there was an initial dispute between the parties as to whether HWS had lost capacity. After experts had positively and conclusively opined that HWS had lost capacity the dispute before the Tribunal then centred on whether SRY was now the appropriate person to act as a substitute decision-maker. The second and third respondents brought a cross application opposing her appointment to that role and making contrary submissions as to the appropriate appointees.
The applicant submits that the costs of the matter were greater than what they otherwise would have been because SRY's application was stridently opposed by her sisters. SRY submitted that, as the 'principal applicant' in the matter, she incurred considerable costs in preparing tender books containing the parties' witness statements, medical reports, bank statements and other relevant documents.
The applicant also argues that her application was 'largely successful' and was supported by the Public Advocate and the protected person's counsel. Counsel for the applicant argued that it would be a "perverse outcome if a person is not validly appointed (through no fault of their own) and who was put to the trouble and expense of a contested application... was unable to be reimbursed (at least in part) for their expenses if their appointment was confirmed by the Tribunal."
In summary this argument seems to be that SRY mostly "won" her argument and that costs should therefore follow the event.
The applicant's initial application was for costs by way of a lump sum of $20,000 from the estate of HWS.
During the course of argument on the internal review the applicant made an oral submission through counsel that, if the Tribunal was not disposed to order costs against the estate of HWS, an application would now be made against the respondents GGD and DTU.
The matter was adjourned for instructions to be clarified and for consideration to be given to whether this application could be advanced on the internal review. This application was subsequently not pursued, but in subsequent written submissions the applicant sought a costs order to be made on the basis of two alternative compromises: either, as to the amount available for payment to SRY be reduced from $20,000 down to the balance remaining after Ms Micallef's legal fees were paid; or that the initial amount of $20,000 set aside for HWS's legal fees be reduced by the following two amounts: (a) Ms Micallef's fees be deducted and (b) due to a compromise reached between SRY and her half-sisters in relation to a partial contribution to the disbursements, this amount also be deducted, leaving a balance of approximately $13,000-$13,500 as a costs order contribution to SRY's remaining legal costs.
I note that the costs application was not itemised in any way as required by Rule 27. The wording of s 57(4) and Rule 101(a) contemplates that SACAT may make a lump sum costs order in those matters where the making of a costs order has been determined to be appropriate. The purpose of an award of lump sum costs is to avoid the expense, delay and aggravation involved in a protracted assessment of costs. It is noted that a contested assessment of costs is an inherently burdensome and time-consuming process, frequently involving time and expense to the parties often out of proportion to the amount at stake.
A broad-brush approach would therefore normally be appropriate. However, there needs to be some calculable basis to that lump sum assessment with reference to dates and times and setting out the reasonable hours of legal work undertaken in the taking of instructions, preparation and attendance at the hearing.
This particular application is unsupported by a schedule of work done. It appears to be a very broad brush 'guesstimate' of appropriate costs, without any clear basis, based on an arbitrary figure of $20,000 that had been suggested by a Tribunal Member at the directions hearing as a maximum amount to be allowed for payment of HWS's legal fees.
Mr Sloane, counsel for GGD and DTU, agreed that his clients neither consented to nor opposed the application for costs, however, he argued that there was a submission at first instance that if the Tribunal was minded to make any allowance for costs for SRY there ought to be equal provision made for GGD and DTU, who were also legally represented in the proceedings.
Counsel for GGD and DTU submitted that the heart of the contest between the two branches of the family was a difference of opinion as to when it was no longer feasible that HWS remain at home with professional supports in place. Mr Sloan submitted that the proceedings were only instituted following this difference of views regarding in-home care as opposed to nursing home care, and that it was as a result of SRY travelling to Adelaide with the intention of immediately placing her mother into an aged care facility that legal advice was sought and the invalidity of the instruments was ascertained. He submitted that his clients' opposed the application and the position of their sister in an effort to give effect to the mother's wishes to remain at home.
Despite Mr Sloane's submission about the focus of his clients' arguments I observe that it is apparent from the statement of reasons that considerable opposition was also made by his clients about the appointment of SRY as administrator. It appears that that particular issue took up much of the hearing time.
Ms Micallef, counsel for HWS, provided helpful written and oral submissions to the Tribunal on the internal review. She submitted that the hearing at first instance was 'unnecessarily protracted'. She submitted that the parties could have, and should have, come to a compromise position prior to the hearing in order to give effect to HWS's clear wishes. She noted that the mediation did not proceed and accordingly no compromise position was able to be reached. She submitted that it would be inappropriate to now 'denude their mother's estate in order to have confirmed her wishes_'_ and she submitted that if her client was able to understand what was occurring that 'this would no doubt have been very distressing for HWS'.
Ms Micallef referred to the specific words of s 57 of the SACAT Act. It is helpful to set out in some detail the relevant paragraphs of her written submission. Ms Micallef submitted that s 57
[2]
"does not envisage that the protected person will be responsible for the costs of the parties who make an application with respect to their well-being." [She went on to submit:] "the reason the application was brought before the Tribunal and the decision with respect to the application are the very disputes the Tribunal is established to decide. There is nothing in the behaviour of HWS either before, during or subsequent to the hearing which would suggest that costs should effectively be awarded against her estate."
[3]
Ms Micallef did not support costs being awarded to GGD or DTU. Ms Micallef noted that the sum of $20,000 was specifically directed by the Tribunal to be set aside as costs to ensure legal representation for HWS, and were not set aside for any other purpose. The funds were allocated only for HWS and because her representation was appropriately provided by Ms Micallef at the Legal Services Commission's very modest scale of costs for persons provided with legal representation under the panel, this should not mean that any funds 'left over' from that sum should now be made available to pay the costs of other parties.
Ms Micallef submitted that SRY's argument that she had 'a moral obligation to bring the proceedings' is the very nature of these proceedings. She submitted that family and other persons are usually compelled by a moral obligation to bring proceedings in a protective jurisdiction. That mere fact should not be a basis to support a costs order. She opposed the compromise proposed in the written submissions provided to the Tribunal subsequent to the oral argument on the internal review; she noted that these submissions were directed to a variation of the costs order as opposed to the fundamental argument of whether the Tribunal at first instance was correct in not awarding costs.
[4]
When conducting an internal review under s 70 of the SACAT Act the obligation on the Tribunal is to arrive at the correct or preferable decision. It is clear that what is required under s 70 is a review on the merits with weight being given to the decision at first instance. It is not necessary for the Tribunal to find that there has been any error of law or fact.[35]
Accordingly, it is not necessary for the Tribunal on review to determine whether Member Rainford erred by misapplying the decision of Tronnolone v Edwards & Bryan[2016] SACAT 27. However, in any event I do not consider that the subtle difference in language between the two decisions is of any significance or has led to any error in Member Rainford's reasoning. The comments by Parker P in Tronnolone v Edwards & Bryan [2016] SACAT 27 at paragraph 35 were clearly not limited to matters in the Housing and Civil jurisdiction of SACAT. Parker P was clearly considering s 57 of the SACAT Act in the context of all of the different types of proceedings in the Tribunal. Member Rainford quoted paragraph 35 of Parker P's judgment and applied it. The subtle difference in expression by Member Rainford at paragraph 8 of the costs decision in this matter does not demonstrate any error in his reasoning.
To adopt President Hughes' observations in Milera, "the case for maintaining accessibility to the Tribunal (in guardianship and administration proceedings) through parties bearing their own costs is strong".[36] The consideration of the mandatory factors in s 57(2)(a) and (b) support a finding of no costs to be awarded to the applicant.
Counsel for the applicant strongly argues that there were some unusual circumstances and/or some unusual complexity to the matter relevant to the exercise of the Tribunal's discretion to award costs under s 57(2)(d). I do not accept the arguments advanced by the applicant in this respect.
I do not consider that the proceedings were unusually complex or unusual. The proceedings were brought about due to invalid instruments and because HWS's three daughters disagreed about her proper personal and financial care and protection. The lack of enduring instruments/invalid instruments and disagreement or conflict within a family are the typical issues that give rise to a significant number of applications brought before the Tribunal in this jurisdiction. The proceedings in this matter were not extraordinary, unusual or complex or any more or less meritorious than a significant number of applications brought in this jurisdiction under the relevant Act.
Further, if the argument is accepted that the protected person was "at fault" by failing to ensure that the legal instruments purporting to appoint her daughter SRY were properly executed, it might be argued that costs should be awarded against the protected person in all proceedings where a person has failed to take any steps at all to ensure that legal instruments were in place. That is, the logical extent of that argument would be to suggest that every subject person who came before the Tribunal as a result of an application where there were no, or no valid, instruments should have to bear the costs of the proceedings. The absence of enduring legal instruments is the very situation that leads to applications in the vast majority of applications before the Tribunal under the relevant Act. Clearly that is not an appropriate basis to argue for a costs order against a protected person in a protective jurisdiction.
In any event, the evidence demonstrates that HWS was unintentionally misled by staff at the Calvary Hospital and that SRY was present when the invalid legal instruments were prepared and executed at the Hospital. One might argue that she was just as much 'at fault' as her mother in failing to ensure that the instruments were properly executed.[37]
Neither do I see any merit in the argument that because SRY was "successful" in one aspect of her application to the Tribunal that costs should be awarded in her favour against the protected person. Costs in this jurisdiction are, in my view, rarely appropriate at all and clearly ought not to be awarded to an applicant on a 'win/loss' basis. As I have discussed previously, this is not an adversarial process; there is no 'winner' and no 'loser' in these proceedings. There is merely an outcome, after an inquiry, appropriate to the circumstances of the person the subject of the proceedings, who is generally vulnerable and may be in need of orders to ensure their proper care and protection. It would be a rare case indeed when costs would be ordered against the protected person.
I do not accept that HWS conducted her argument in this matter in a way that unnecessarily disadvantaged the applicant or that she conducted the proceedings in an unnecessarily complex, confusing or protracted manner. The hearing appears to have gone on much longer than it perhaps ought to have but it is not clear that this was primarily through the fault of either the applicant or of the protected person or of the respondent sisters. The fact of the involvement of legal practitioners may have contributed to the length of the hearing (it is unclear from the statement of reasons), but Member Rainford does not conclude that the protected person or her counsel, or any other party conducted the hearing in a vexatious manner.
There are no other relevant matters regarding the nature of the application or the conduct of the parties that would lead to a conclusion that a costs order should be made against the protected person.
Parties and interested persons are actively encouraged by the Tribunal to appear 'in person' in this jurisdiction, given that the issues to be determined and the nature of the proceedings are relatively informal and straightforward. The Tribunal's objectives are to encourage accessibility and informality and to keep costs to a minimum.[38] Legal counsel are not required to be appointed to represent people in these matters. There is no question that SRY, GGD and DTU elected to seek legal representation and each went to some effort to set out their respective arguments and file lengthy documents in support of their respective positions prior to the hearing. This was a choice that they each made. It was their respective decisions to approach and appoint legal counsel and to incur the costs of legal representation. They should each bear their own costs.
I repeat and adopt President Parker's reasoning in Tronnolone.[39]
[5]
The clear effect of section 57 of the SACAT Act is that SACAT is generally a no costs jurisdiction and costs will rarely be awarded. [Section] 57(2)(b) indicates that costs should only be awarded where a party has been disadvantaged by proceedings that have little or no merit. I do not consider that to be the situation with the present matter. The proceedings were no more or less meritorious than most of the cases that come before the Tribunal.
[6]
Finally, I do not accept that the compromise proposed in the written submissions provided to the Tribunal subsequent to the oral argument on the internal review is appropriate. Those submissions were directed to an argument regarding a variation of the quantum of costs. The Tribunal set aside an amount from HWS's estate that might go towards her own legal costs if necessary. The failure by Ms Micallef to render an account going anywhere near that amount (an appropriately so) does not mean that the balance set aside should be apportioned between the solicitors for the other parties.
There is no proper basis to award costs to the applicant. The correct and preferable decision is to affirm the order at first instance.
[7]
The Tribunal affirms the order of the Tribunal to dismiss SRY's application for costs.
The Tribunal authorises payment to Tracee Micallef, Barrister & Solicitor, for costs for appearances on the internal review and for the preparation and filing of written submissions for a period of four hours at the Legal Services Commission panel rate. The Tribunal accordingly directs that payment be made by the appointed administrator of HWS to Ms Micallef for her legal fees out of the estate within 14 days from this date.
[2]SACAT Act s 8; Re KCG [2018] 17 (21 May 2018) [4] (Hughes P). Given the protective nature of the proceedings and the need for expediency in the conduct of matters in the interests of the person the subject of the proceedings, it is the practice of the Tribunal in this jurisdiction to conduct its proceedings with the minimum of formality and to avoid unnecessary pre hearing formalities and legal technicalities, including by making party joinder orders where it is unnecessary to do so.
[10]
[3]Re HWS (Unreported, SACAT, Member Rainford, 9 November 2017) [2].
[11]
[4]Re XHQ[2018] SACAT 11 (10 May 2018) [65] (Executive Senior Member Stevens).
[6]G&A Act ss 33, 37; GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors[2003] NSWADTAP 59 (23 November 2003) [30] (Magistrate Hennessy, Members Britton and Green).
[8]SACAT Act ss 8, 39; South Australian Civil and Administrative Tribunal Rules 2014 (SA) ('SACAT Rules') r 4_; G&A Act_ s 5.
[16]
[16]Re XHQ[2018] SACAT 11 (10 May 2018) [65] (Executive Senior Member Stevens).
[17]
[18] SACAT Rules r 4(a). Proportionality means ensuring that legal costs and other costs incurred in connection with proceedings are reasonable and proportionate to the importance and complexity of the issues in dispute.
[21] There is no separate representation scheme under the G&A Act or the SACAT Act. The appointment of independent counsel for a person who is the subject of the proceedings is not a common practice. The interests of the subject person are generally protected by the Tribunal during its inquisitorial process and by the involvement of the Public Advocate in the proceedings (who is generally invited by SACAT to attend hearings involving any stated conflict within families).