My clients were awarded costs in a guardianship application. The costs were payable to them by the Applicant (who was a family member they were opposed to in the application).
This was rare.
Costs are rarely awarded in guardianship anyway. When they are awarded, it is more common for costs to come from the estate of the Represented Person, rather than from a family member who you are opposed to in the application.
The decision is here.
The main proceedings
The substantive application was for a review of a guardianship order previously made by the SAT, as well as an application for the appointment of an Administrator of the Represented Person’s estate.
The Tribunal refused to grant the applications.
My clients made an application for their costs incurred in responding to the proceedings.
Application for an extension of time
The Applicant objected to my client’s application at first instance as it was made more than 21 days (24 days) after the orders to which the application related.
Rule 42A of the SAT Rules prescribes the 21-day requirement.
In my submissions, however, I drew the Member’s attention to the operation of rule 46 of the SAT Rules.
Rule 46 relevantly provides that the SAT retains a discretion to waive non-compliance with requirements arising under the rules.
This, read in tandem with the objectives set out under s 9 of the SAT Act, as well as the relatively minor delay and the existence of extenuating circumstances, meant the Tribunal granted an extension of time. Only a few days extension was required.
Costs applications generally in SAT
Section 87 (1) of the SAT Act provides that parties ordinarily bear their own costs, subject to an order of the Tribunal to the contrary.
Section 16 of the Guardianship and Administration Act (GA Act) deals with costs in relation to proceedings commenced under the GA Act. Section 16 (5) of the GA Act provides that nothing in the GA Act limits any power exercisable by the SAT under the SAT Act.
Consequently, the SAT retains considerable discretion in the determination of whether costs ought to be paid, conferred by s 87 (2) of the SAT Act.
The key issue in the application was whether the proceedings were commenced or continued unreasonably.
In the Tribunal’s reasons it was noted that there were plain deficiencies in the Applicant’s case.
The Tribunal at [54] affirmed the position that a weak case alone is not sufficient to warrant an adverse costs order.
However, the Member pointed out a variety of circumstances, raised in my client’s submissions, that enlivened the Tribunal’s discretion to award costs pursuant to s 87 (2) of the SAT Act.
Delay, Irrelevance and Improper Purpose
Prior to the substantive review hearing, the Applicant was late in providing its material to the Tribunal.
At the hearing it was clear to the Member that the Applicant had potentially misconceived the nature and purpose of the proceedings.
The Applicant focused heavily on scrutinising a report of a delegate of the Public Advocate and cross-examining my client on issues irrelevant to the dispute.
The delay ultimately led to a prolongment of the matter as the Tribunal did not have time to hear from the other parties and required written submissions to be filed as a result of running out of time.
At [50] – [51] the Tribunal referred to the potential that the review application was brought for an improper purpose to influence the discretion of the Public Advocate. Additionally, the Tribunal in its reasons pointed out that the Applicant and its Counsel were advised at the original directions hearing as to the role SAT plays in relation to the dispute before it.
Therefore, the delay and conduct of the Applicant following such directions from the Tribunal (in pressing ahead with its scrutiny of the Public Advocate’s report and its cross-examination of my client), was considered to be unreasonable conduct.
For the above reasons, the Tribunal awarded costs to my clients in the sum of $7,000.
