How to deal with opposing lawyers who use “Conferral as a Weapon”

In legal disputes within Western Australia, you often need to confer with the opposing party before initiating a case or making an application in court.

Conferral is intended to encourage cooperation and communication between parties, helping to narrow the disputed issues and facilitate settlement.

However, conferral is not always a smooth and productive process. Occasionally, one party (often the defendant) might use conferral as a weapon to delay proceedings, increase your legal costs, or frustrate your legitimate claims. This behaviour contradicts the underlying objectives of conferral.

As a lawyer specialising in defamation, guardianship, and legal costs disputes, I have seen many instances of conferral being used as a weapon by parties and their legal advisors.

Some common tactics include:

• Refusing to confer or respond to reasonable requests for conferral;

• Making unreasonable or excessive demands for information or documents;

• Raising new or irrelevant issues during conferral;

• Making false or misleading statements or allegations;

• Engaging in disrespectful or aggressive behaviour towards the other party or their legal representative;

• Withdrawing from conferral without notice or explanation;

• Failing to comply with agreed outcomes or timetables;

• Deliberately delaying the process to increase the opposing party's legal costs or cause frustration.

To address the issue of conferral misuse and counteract the use of conferral as a weapon, consider these tips:

1. Be prepared: Before conferring with the other side, make sure you have a clear understanding of your case, your legal rights and obligations, and your desired outcomes. Gather all the relevant information and documents that support your position and be ready to share them with the other side if appropriate. Also, have a realistic assessment of the strengths and weaknesses of your case and the other side's case, and be prepared to negotiate in good faith.

2. Be proactive: Don't wait for the other side to initiate conferral. Contact them as soon as possible after becoming aware of the dispute and propose a suitable time and method for conferral. This shows that you are serious about resolving the matter and puts pressure on them to respond. If they refuse to confer or ignore your requests, document their lack of cooperation and inform them of the potential consequences, such as sanctions from the court or adverse costs orders.

3. Be respectful: Even if the other side is using conferral as a weapon, maintain a respectful and professional tone during conferral. Avoid personal attacks, insults, or accusations that may escalate the conflict or damage your reputation. Focus on the facts and the law, not on emotions or personalities. Remember that conferral is not a trial or a debate, but a constructive dialogue aimed at finding a mutually acceptable solution.

4. Be assertive: While being respectful, don't let the other side push you into agreeing to something that is unfair or unreasonable. Stand up for your rights and interests, and don't be afraid to challenge any false or misleading statements or allegations made by the other side. If they make unreasonable or excessive demands for information or documents, ask them to justify their relevance and necessity. If they raise new or irrelevant issues during conferral, remind them of the scope and purpose of conferral and ask them to focus on the main issues in dispute.

5. Be flexible: Conferral is not a one-way street. You have to be willing to listen to the other side's perspective and consider their proposals. You may have to compromise on some points or make some concessions to reach an agreement. However, this does not mean that you have to give up your core principles or accept an outcome that is detrimental to your interests. You have to balance flexibility with firmness, and know when to accept an offer and when to walk away. Being open to negotiation does not mean allowing the other side to exploit the process or use conferral as a weapon.

6. Be aware of delay tactics: Recognise when the other side is using delay as a weapon and address it head-on. Keep track of the timeline and document any deliberate delays or stalling tactics used by the opposing party. If the other side consistently prolongs the conferral process without good reason, consider discussing the issue with them, or if necessary, inform the court or seek appropriate remedies.

7. Set clear boundaries and deadlines: Establish a clear agenda and reasonable timeframes for the conferral process to prevent unnecessary delays or diversions. Make sure both parties are aware of these boundaries and deadlines, and hold the other side accountable if they fail to adhere to them.

8. Stay focused on the primary issues: Keep the conferral process centred on the main issues in dispute and avoid getting sidetracked by irrelevant matters. If the other side attempts to introduce unrelated or trivial topics, gently steer the conversation back to the primary concerns.

9. Know your options: If the conferral process is being misused and you have exhausted all efforts to address the issue, be prepared to move on to the next step in the litigation process. Do not allow conferral to drag on indefinitely or become an obstacle to resolving the dispute. Understand the available alternatives, such as mediation, arbitration, or ultimately, litigation, and be ready to pursue these options if necessary.

By being prepared, proactive, respectful, assertive, and flexible, you can more effectively navigate the challenges posed by the misuse of conferral and minimise the impact of conferral being used as a weapon in lawyer-on-lawyer disputes.

Stay focused on your goals, and be willing to adapt your approach when necessary to achieve a fair and satisfactory resolution.

Malvina Park Pty Ltd v Johnson: Understanding Disclosure Obligations Under the Uniform Law

The Uniform Law, effective from 1 July 2022, introduced several changes to the legal profession in Western Australia, particularly regarding costs disclosure.

This article examines the case Malvina Park Pty Ltd v Johnson [2019] NSWSC 1490, which explores disclosure obligations under the Uniform Law.

Due to the possible financial and disciplinary consequences for lawyers and law practices, ensuring compliance with these obligations is crucial.

To better understand the issues in this case, we first need to examine the relevant provisions of the Uniform Law.

The Uniform Law is outlined in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic), which, through the Legal Profession Uniform Law Application Act 2022 (WA), applies in Western Australia.

Disclosure Obligations

Law practices' disclosure obligations are set out in s174 of Schedule 1.

Section 174(1), titled “main disclosure requirement,” stipulates that a law practice must provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs as soon as practicable after instructions are initially given.

Additionally, it requires the law practice to disclose any significant changes to previously disclosed information, including changes to legal costs payable.

Section 174(2) deals with “additional information to be provided,” requiring a law practice to inform clients of their rights, such as negotiating a costs agreement, billing method, receiving a bill, requesting an itemized bill, and seeking assistance from the designated local regulatory authority in the event of a legal costs dispute.

This section also covers the information to be provided when there is a significant change in a previous disclosure and legal costs.

Section 174(3), titled “Client’s consent and understanding,” states that if a disclosure is made under subsection (1) or (2), a law practice must take all reasonable steps to satisfy itself that the client has understood and given consent to both the proposed course of action for the conduct of the matter and the proposed costs.

Malvina Park Pty Ltd v Johnson: Case Analysis

In Malvina Park Pty Ltd v Johnson[1], the Plaintiff argued that their fixed-price costs agreement should be enforced, while the Defendant contended that the agreement was void due to non-compliance with s174(3).

The Court observed that instead of making arrangements to meet with the Defendant to discuss and explain the Cost Agreement, the Plaintiff chose to send three confusing and complex letters to their client[2].

There was no evidence put forward by the Plaintiff confirming they took any steps to satisfy themselves that the Defendant understood the Cost Agreement and was providing his consent to the proposed course of action and conduct of the matter, other than simply sending it to the client and asking him to sign and return it[3].

The Court found that the Plaintiff sought to rely on Mr. Firth’s evidence in relation to his state of mind and whether he formed a “reasonable opinion” about his client’s understanding of the costs agreement[4]. However, the Court commented that such matters may be relevant for the purpose of s174(3), but the evidence of those subjective beliefs of Mr. Firth as a principal of the law practice needs to be assessed in the light of the actions taken by the law practice at the time of the disclosure under s174 and, in particular, the actual steps taken by the law practice to meet its obligations under s174(3)[5].

The Court accepted that the legislation does not prescribe how a law practice must discharge the duty under s174(3), and that this reflects the

The Court accepted that the legislation does not prescribe how a law practice must discharge the duty under s174(3), and that this reflects the reality that what will be necessary to discharge the duty will vary according to the circumstances of the case and the client[6].

The steps a law practice may need to take will be influenced by the attributes of the client and what the client communicates before and after receiving the disclosure documents[7].

The Court also accepted the Defendant’s submissions that there was no evidence that the Defendant was informed as to the risks occasioned by a fixed-price agreement[8].

The risks went both ways, but the risks for the Defendant were twofold. First, the risk that the legal practice may be incentivized to minimize the work contributed to a particular matter. Secondly, and more significantly, there was a risk that the client will pay more than a matter is objectively worth under such an agreement, even if the discounts under the costs agreement were applied[9].

The Court found that the approach taken by Mr. Firth did not constitute reasonable steps to satisfy himself that the client had understood and given consent to proposed costs when formulated on a fixed-price basis, let alone, the proposed course of action for the conduct of the matter[10].

That approach being that he had surmised the client understood and consented from the surrounding circumstances and the client’s communications and that, if asked, he would have dealt with any query in that respect.

Furthermore, no inquiry was made of the client as to his understanding or consent specifically in relation to the fixed-price component of the costs agreement and its implications in the context of the specific litigation under consideration.

Takeaways

• Compliance with disclosure requirements does not only involve ensuring that you disclose to a client in writing the matters referred to in s174. A law practice is also required to take all reasonable steps to satisfy itself that the client has understood and given consent to both the proposed course of action for the conduct of the matter and the proposed costs.

• The obligation applies to the “law practice.” The steps required to discharge this obligation will depend on the circumstances of the case and client, including the client’s sophistication. It will not be sufficient for a lawyer to rely on their subjective assessment from the surrounding circumstances that the client understood and consented. Active steps are required.

• If this obligation is not met, the costs agreement may be rendered void under s178(1)[11].

Endnotes

Here are the endnotes for the revised article:

[1] [58].

[2] [59].

[3] [115].

[4] [50].

[5] [59].

[6] [54-57].

[7] [113].

[8] [116].

[9] [116].

[10] [116].

[11] This article does not consider or discuss the application of regulation 72A of the Legal Profession Uniform General Rules 2015 (NSW) which makes provision for the disapplication of s178(1) and (2) in certain circumstances.

Relying on "Information and Belief" in Affidavits

Affidavits play a crucial role in presenting evidence to the court.

These sworn statements are used in various legal proceedings to establish facts and provide testimony.

One of the key aspects of affidavits is the reliance on information and belief.

Reliance on Information and Belief in Affidavits

In some instances, a deponent may not have direct knowledge of certain facts but can still provide evidence in an affidavit based on information received from other sources or their belief in the truth of such information. This is known as relying on information and belief in affidavits.

This concept is particularly important when dealing with interlocutory proceedings, where there may be limited time and access to direct evidence.

A Western Australian Case: An Illustration

The Western Australian decision of Blythe v the State of Western Australia [2008] WASCA 10 offers insights into the practical application of reliance on information and belief in affidavits.

In this case, the affidavit contained hearsay evidence from a former student, but the deponent, Ms. Jorden, failed to identify the student or state that she believed the information provided by the student was true.

The appeal court found that this lack of compliance with the requirements of reliance on information and belief rendered the hearsay evidence inadmissible.

Rule Governing Reliance on Information and Belief in Affidavits

In Western Australia, the reliance on information and belief in affidavits is governed by Order 37 Rule 6 of the Rules of the Supreme Court 1971 (WA).

According to this rule, an affidavit used for interlocutory proceedings may contain statements of information or belief, provided the source of the information is disclosed and the deponent believes the information to be true.

Compliance with the requirements of Order 37 Rule 6 is crucial for several reasons:

1. Ensuring Admissibility: Properly drafted affidavits that adhere to the requirements of reliance on information and belief increase the likelihood of the evidence being admissible in court.

2. Countering or Challenging Evidence: Disclosing the source of the information allows the opposing party to counter or challenge the evidence presented in the affidavit.

3. Potential Prosecution for Perjury: Accurate and complete affidavits are necessary to hold deponents accountable for the veracity of their statements, enabling prosecution for perjury if required.

Lewkowski v Bergalin Pty Ltd

In the case of Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989), the court emphasized the importance of following the proper form for statements of information or belief in affidavits. This form is essential not because of a desire for ritualized behavior but because it clearly indicates the source of the information, states the information, and expresses the deponent's belief that what was said is true. If this form is not followed, there is a risk that drafters of affidavits may produce inadmissible evidence under the relevant rules, as seen in In re J L Young Manufacturing Co Ltd [1900] 2 Ch 753.

The court stated, “Preferably statements of information or belief in affidavits should follow the form 'I have been informed by X and verily believe'.”

Following the proper form and complying with procedural rules ensures that evidence presented is admissible, allowing parties to effectively challenge or counter it and preventing potential miscarriages of justice.

In Blythe v the State of Western Australia [2008] WASCA 10, the primary court did not rule on the appellant's objection to paragraphs 18 and 19 of Ms. Jorden's affidavit. These paragraphs contained hearsay evidence that should have been deemed inadmissible. The appellant's objection should have been upheld, as the affidavit did not comply with the required form for statements of information or belief under the relevant rules (O 37 r 6). The affidavit failed to disclose the identity of the former student and did not state that Ms. Jorden believed what the student said was true.

As Wheeler JA noted in Westpoint Management Pty Ltd v Goakes [2002] WASCA 317, [14], the requirements of O 37 r 6 are essential because they reveal the original source of the hearsay information, provide an opportunity for an opponent to counter or challenge it, and enable prosecution for perjury if necessary.

The Newspaper Rule in Defamation Cases: Insights from Poland v Hedley [2023] WASCA 69

Defamation law is a complex area, balancing the protection of individual reputations against the importance of freedom of speech.

A key aspect in defamation cases involving media defendants is the newspaper rule, which offers special protection to confidential sources in the interests of preserving the free flow of information.

In this blog post, I explore the concept of the newspaper rule and its application in defamation cases, drawing on the recent Western Australian case of Poland v Hedley [2023] WASCA 69.

The Newspaper Rule: Definition and Purpose

The newspaper rule is neither a rule of evidence nor a rule of law, but rather a rule of practice in defamation actions (Poland v Hedley, [86]).

It generally prevents courts from compelling media defendants to disclose their confidential sources of information during the pre-trial process (ibid).

This protection against disclosure exists only prior to the hearing of the action, and not at trial (ibid, [87]).

The rule is grounded in the recognition of public interest in the free flow of information (ibid, [88]).

It supports investigative journalism, a vital ingredient of a healthy society, by allowing journalists to protect their sources' confidentiality, thus encouraging information sharing (ibid).

This protection extends to media defendants in analogous interlocutory applications, such as preliminary discovery (ibid, [89]).

The newspaper rule is designed to protect the identity of informants, not the information itself obtained from them (Poland v Hedley, [90]). However, the rule may protect the information if its disclosure would reveal the informant's identity (ibid).

The court exercises discretion in determining whether to require disclosure of a confidential source during the interlocutory stage, taking into account the interests of justice and any special circumstances (ibid, [91]).

Factors Influencing the Court's Discretion

In deciding whether to require disclosure of a confidential source at the interlocutory stage, the court considers several factors depending on the specific case.

These factors may include the manner in which the information was obtained and whether it was obtained lawfully (Poland v Hedley, [93]).

Additionally, the court may be more inclined to order disclosure if the defendants raise the identity and integrity of their confidential sources as part of a qualified privilege defense (ibid, [94]).

Special Circumstances and the Newspaper Rule

The newspaper rule may be overridden by special circumstances or if it is necessary in the interests of justice (Poland v Hedley, [92]). For instance, if the plaintiff may be left without an effective remedy due to the defendant's statutory defense of qualified privilege, the court may compel disclosure to enable the informant to be sued or joined as a defendant (ibid).

Applying the Newspaper Rule in Poland v Hedley [2023] WASCA 69

The Poland v Hedley case provides a valuable example of the newspaper rule's application and the court's discretion in ordering the disclosure of confidential sources. In this case, the court ultimately ordered the production of audio recordings of communications with the confidential source (Source B) for several reasons, including special circumstances (Poland v Hedley, [106]).

The fact that the identity of Source B was already known to the plaintiff, and that the issue revolved around the content of the communications, counted strongly against applying the newspaper rule to refuse protection (ibid, [98], [100]).

A Closer Look at Bingham v Bevan [2023] NSWCA 86 Decision

A recent decision by the New South Wales Court of Appeal, Bingham v Bevan [2023] NSWCA 86, offers insights into the repercussions of not adhering to the terms set forth in a costs agreement.

Read my earlier blog post here about a previous NSWSC single judge decision in this dispute, which was about the costs estimates aspect of things

In this blog post, I analyse the NSWCA decision and explain the Court’s rationale with respect to the enforceability of costs certificates.

The Bingham v Bevan Case

The Bingham v Bevan case is centred around a dispute between a solicitor (Bingham) and a barrister (Bevan) regarding the payment of legal fees.

The dispute arose from a costs agreement between the parties that contained a clause (cl 4) specifying that the barrister's fees were contingent upon the solicitor recovering funds from the sale of the client's property or through the client's bankruptcy.

The barrister sought a costs assessment, and the costs assessor found that the costs agreement was void due to non-compliance with the disclosure requirements of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act).

Despite the void costs agreement, the assessor issued a certificate specifying the amount of costs to be paid by the solicitor to the barrister.

The barrister filed the certificate and obtained a judgment in the Common Law Division, which the solicitor appealed.

The main issue in the appeal was whether the barrister was entitled to recover the assessed fees, given the contingent nature of the costs agreement and the fact that the contingency had not been satisfied.

Analysis of the Decision

The Court of Appeal, in its judgment, found that the costs agreement was void due to the solicitor's non-compliance with the disclosure requirements under the Application Act.

However, the Court emphasised that the enforceability of the costs agreement was not solely dependent on compliance with these requirements.

The Court also noted that the recovery of the barrister's fees was contingent on the solicitor obtaining funds from the sale of the client's property or through the client's bankruptcy, as stated in cl 4 of the costs agreement.

Since the contingency had not been met, the Court held that the barrister was not entitled to recover the fees.

The Court allowed the appeal, set aside the judgment in the Common Law Division, and ordered the barrister to reimburse the solicitor for the amount paid pursuant to a garnishee order.

Key Takeaways:

These 2 NSWSC Bingham v Bevan decisions highlight the following:

1. Compliance with disclosure requirements: Legal practitioners must ensure they comply with the disclosure requirements set out in the Application Act, as non-compliance can render a costs agreement void.

2. Enforceability of costs agreements: The terms of a costs agreement, including any contingent fee arrangements, must be clear and enforceable. Failure to satisfy the contingencies can render the fees non-recoverable.

3. Costs assessment and judgment: Obtaining a costs assessment and judgment based on a void costs agreement can lead to complications and potential reversal of the judgment, as seen in the Bingham v Bevan case.

4. Importance of clear communication: Legal practitioners should ensure they communicate clearly with their clients and fellow professionals about the terms and conditions of a costs agreement, including any contingent fee arrangements. Proper communication can help avoid disputes and misunderstandings between the parties involved.

5. Consequences of a void costs agreement: It is essential for legal practitioners to be aware of the potential consequences of a void costs agreement, as it may impact their ability to recover fees. In the Bingham v Bevan case, the barrister was unable to recover the assessed fees due to the void costs agreement and the unsatisfied contingency.

Understanding Guardianship and Administration Matters: When does the Need for Oversight Enable the Appointment of a Guardian in Western Australia?

Guardianship and administration matters in Western Australia are governed by the Guardianship and Administration Act 1990 (the Act).

The Act provides for the appointment of guardians and administrators for persons who lack the capacity to make decisions in their personal and financial affairs.

In this blog post, I discuss the role of oversight in guardianship and administration matters and explore the circumstances under which the State Administrative Tribunal of Western Australia (the Tribunal) can appoint a guardian based on the need for oversight.

I examine the recent decision of IZ [2022] WASAT 85 to illustrate how the Tribunal interprets and applies the relevant provisions of the Act in this context.

Legislative Framework

The Act sets out the criteria for appointing a guardian for a person who lacks the capacity to make decisions in relation to their personal affairs.

Section 43(1)(b) of the Act states that the Tribunal may make a guardianship order if it is satisfied that the person:

(i) is incapable of looking after their own health and safety;

(ii) is unable to make reasonable judgments in respect of matters relating to their person; and

(iii) is in need of oversight, care, or control in the interests of their health and safety.

The Act also establishes a presumption of capacity, as set out in section 4(3)(c), which states that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Need for Oversight

In the IZ [2022] WASAT 85 decision, the Tribunal considered the role of oversight in guardianship matters and the extent to which the need for oversight, care, or control could justify the appointment of a guardian.

The Tribunal emphasised that the presumption of capacity must be upheld unless clear and cogent evidence to the contrary is presented.

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Tribunal, however, did not find sufficient evidence to rebut the presumption of capacity.

It concluded that while there was a reasonable concern for IZ's health and safety, there was no clear evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal observed that individuals with the capacity to make decisions regarding their personal and financial affairs are entitled to make decisions that others may regard as unreasonable or unwise, as long as they do not pose a risk to themselves or others (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal also noted that the need for oversight, care, or control should be read in conjunction with the other limbs of section 43(1)(b) and considered as a global assessment of the person's capacity (referencing GG [2021] WASAT 33 at [60(a)-(c)]).

The Tribunal held that the need for oversight, care, or control is directed towards a person's functional incapacity, rather than the cause of the person's need for assistance (referencing GG at [60(i)]).

The Presumption of Capacity in Guardianship and Administration Matters: Does Objectively Unwise Decision-Making Rebut the Presumption in Western Australia?

The Guardianship and Administration Act 1990 (the Act) governs the appointment of guardians and administrators for individuals who lack the capacity to make decisions regarding their personal and financial affairs in Western Australia.

One of the key principles in guardianship and administration matters is the presumption of capacity, which assumes that an individual is capable of managing their own affairs until proven otherwise.

In this blog post, I discuss the extent to which objectively unwise or less preferable decision-making can rebut the presumption of capacity in a guardianship and administration matter before the State Administrative Tribunal of Western Australia (the Tribunal).

I refer to the decision of IZ [2022] WASAT 85 to illustrate how the Tribunal approaches this issue and applies the relevant provisions of the Act.

Legislative Framework

The Act sets out the criteria for appointing a guardian or an administrator for a person who lacks the capacity to make decisions in relation to their personal or financial affairs. Section 4(3)(c) of the Act establishes the presumption of capacity, stating that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Presumption of Capacity and Objectively Unwise Decision-Making

In the IZ [2022] WASAT 85 decision, the Tribunal examined the relationship between the presumption of capacity and objectively unwise decision-making by the subject of a guardianship application.

The Tribunal emphasized that people with capacity are entitled to make decisions that others may regard as unreasonable or unwise (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Department argued that IZ's lack of insight into the reason for her admission and her desire to return to live with her parents were evidence of her incapacity to make reasonable judgments.

However, the Tribunal held that, although there was a reasonable concern for IZ's health and safety, there was no clear and cogent evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal found that IZ was actively managing her own affairs and dismissed the guardianship application.

The Tribunal in IZ cited the observation made in MH, stating that the judgment on whether a person is incapable of looking after their health and safety or unable to make reasonable judgments in respect of matters relating to their person does not depend on whether the Tribunal agrees or disagrees with the person's decisions (referencing MH at [120]).

Key Take-Aways

• The decision in IZ [2022] WASAT 85 demonstrates that objectively unwise or less preferable decision-making by the subject of a guardianship application does not automatically rebut the presumption of capacity in Western Australia.

• The Tribunal emphasizes the importance of upholding the presumption of capacity unless clear and cogent evidence to the contrary is presented.

• This approach reflects the respect for individual autonomy and the right to make one's own decisions, even if those decisions may be considered unwise or less preferable by others.

Understanding Joint Guardianship and Administration Appointments in Western Australia: A Case Study

Guardianship and administration matters in the State Administrative Tribunal of Western Australia (SAT) often involve complex family dynamics and legal considerations.

One question that often arises is when joint guardians and administrators should be appointed.

In this blog post, I discuss the factors that the SAT takes into account when making such decisions, with reference to the Guardianship and Administration Act 1990 (WA) (GA Act) and the recent case of LM [2023] WASAT 15.

Criteria for Appointment of Guardians and Administrators

The GA Act sets out the criteria for appointing guardians and administrators.

Section 44 deals with the appointment of guardians, while section 68 focuses on the appointment of administrators.

In the case of LM [2023] WASAT 15, various family members expressed their willingness to be appointed, either individually or jointly, as LM's guardian and administrator.

The Tribunal, however, had to consider the best interests of the represented person and the suitability of the proposed appointees before making a decision.

Joint Appointments: Pros and Cons

Joint appointments may seem like a fair solution in some situations, especially when multiple family members are willing to take on the responsibility. However, the SAT is cautious when considering joint appointments for both guardians and administrators.

For administrators, joint appointments can pose practical difficulties, particularly regarding banking arrangements and the management of online accounts.

As for joint guardianship, the SAT may consider it only when there is a reasonable expectation that the guardians will be able to work together and reach unanimous decisions for the represented person.

Family Dynamics and Suitability

In LM [2023] WASAT 15, the Tribunal paid close attention to the family dynamics and the ability of the proposed appointees to work together (para. 65). The decision highlighted that joint decision-making may not be successful in situations where family relationships are strained or conflicted.

The Tribunal emphasized the importance of weighing the potential risks and benefits of joint appointments against the backdrop of complex family situations.

Moreover, the Tribunal took into account the potential conflicts of interest that could arise from the appointment of certain family members. In LM [2023] WASAT 15, it was determined that one of the proposed appointees, SC, had a conflict of interest due to his personal interest in his daughters' financial well-being and his duty as an administrator to act in LM's best interests (para. 66). This conflict of interest contributed to the Tribunal's finding that SC was unsuitable for appointment.

In addition to conflicts of interest, the Tribunal also considered the experience and expertise of the proposed appointees. In LM's case (para. 70), the Tribunal noted that her estate involved some complexity, and it was in her best interests for the appointed administrator to have the necessary knowledge and ability to manage her estate effectively.

Ultimately, the Tribunal's analysis of the family dynamics and the suitability of the proposed appointees led to the conclusion that none of the family members who volunteered as guardians or administrators were appropriate for appointment (para. 69).

This unsuitability precluded their sole or joint appointment, prompting the Tribunal to consider alternative options such as the appointment of the Public Advocate and Public Trustee (para. 71).

Public Advocate and Public Trustee Appointments

In cases where no suitable and willing person is available for appointment, the GA Act (section 44(5)) provides that the Public Advocate should be appointed as the guardian.

Similarly, when it is in the best interests of the represented person, the Public Trustee may be appointed as the plenary administrator.

In LM [2023] WASAT 15, the Tribunal concluded that the Public Advocate should be appointed as LM's limited guardian and the Public Trustee as LM's plenary administrator.

These appointments ensured that the guardian and administrator possessed the necessary expertise and ability to make decisions for LM in the foreseeable future.

Key Take-Aways

• Joint appointments of guardians and administrators may seem like a practical solution in some cases.

• However, the SAT carefully considers the best interests of the represented person, the family dynamics, and the suitability of the proposed appointees when making such decisions.

• The case of LM [2023] WASAT 15 serves as a valuable reference for understanding when joint appointments may or may not be appropriate in guardianship and administration matters in Western Australia.

Determining Factors in a s16(4) Costs Application in a Guardianship and Administration Matter in Western Australia

In this blog post, I explore the factors to be considered in determining a s16(4) costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia.

This discussion will rely on the case of Y and CO [2020] WASAT 166 and relevant legislation, including the Guardianship and Administration Act 1990 (WA) (the GA Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act).

1. The Tribunal's Power to Make Costs Orders

Section 16(4) of the GA Act grants the State Administrative Tribunal the power to order that costs be paid by, or out of the assets of, a represented person if it is satisfied that a party to the proceedings has acted in the best interests of the represented person or the person in respect of whom an application is made [1][21].

The principle in s 87(1) of the SAT Act states that parties usually bear their own costs in a proceeding of the Tribunal [22].

2. Factors to Consider

In determining whether to exercise its discretion to order a represented person to pay another party's legal costs, the Tribunal may consider several factors outlined in Re WA and IA, Ex Parte AA and JA [2011] WASAT 33 [32][59-60].

These factors include:

• Whether the application would have been made without the applicant seeking legal advice;

• The presence of serious allegations of abuse, requiring legal advice and representation;

• Conflict between significant parties that may prevent them from presenting a coherent case without legal assistance;

• The complexity of the application requiring legal advice and representation;

• Whether the application is contentious and unique;

• Whether the application raises a special point of law.

It is important to note that awards of costs pursuant to s 16(4) of the GA Act are not common [60].

3. Acting in the Best Interests of the Represented Person

Section 16(4) of the GA Act conditions the positive exercise of the Tribunal's discretion on being satisfied that the person seeking costs has acted in the best interests of the represented person [33].

However, more than merely acting in the best interests of the person is required to succeed in a costs order under s 16(4) [37].

4. The Amount of Costs Awarded

The amount of costs that may be awarded should be such costs relative to those proceedings as the Tribunal sees fit. The award is not referable solely to the costs incurred by that party [33].

5. The Tribunal's Wide Discretion

The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs, but it should not be read independently of the costs regime in the SAT Act and the starting position that parties bear their own costs [36].

6. Relevant Case: Y and CO [2020] WASAT 166

In the case of Y and CO [2020] WASAT 166, the Tribunal made a costs order of $5,000 under s 16(4) [59].

The reasons for this finding include the applicant (Y) acting in the best interests of the represented person (CO), and that it was unlikely the application, which ultimately benefitted CO, would have been made without legal advice sought by Y [41][46].

Key Take-Aways

• Determining factors in a s16(4) costs application in a guardianship and administration matter in Western Australia involves a careful consideration of various factors and circumstances.

• The Tribunal has a wide discretion to award costs but must be satisfied that the person seeking costs has acted in the best interests of the represented person, among other considerations.

Factors to be considered in determining costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia (other than pursuant to s 16(4))

When it comes to costs applications in guardianship and administration matters before the State Administrative Tribunal of Western Australia (SAT), other than pursuant to s 16(4) of the Act, there are various factors to consider.

In this blog post, I discuss these factors, referencing the decision MD [2022] WASAT 45 and relevant legislation, to provide an overview of the key principles and considerations in determining costs applications in such matters.

Starting Point: Parties Bear Their Own Costs

As a starting point, s 87(1) of the SAT Act sets the principle that parties typically bear their own costs in a proceeding of the Tribunal.

This principle was affirmed in RK [2020] WASAT 53 (S) (RK), where the Full Tribunal found that the parties to guardianship and administration proceedings should bear their own costs [10].

Discretion to Award Costs

However, the Tribunal does have discretion to award costs in any proceeding, except as otherwise provided in an enabling Act [11].

This includes the power to order a party to pay the costs of another party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding [12].

In exercising this discretion, the Tribunal must consider all of the circumstances of the particular case and whether it is fair and reasonable for one party to bear the costs of another [14][15].

Key Considerations

Some of the key considerations guiding the Tribunal's assessment include whether:

1. A party has conducted itself in a way that unnecessarily prolongs the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process. This includes where proceedings should not have been maintained against a party because it is clearly untenable, and no reasonable person would have believed they could be successful [16].

2. Costs have been incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings (where the conduct of the party was unreasonable and unfairly caused the increased costs) [16].

Vexatious Proceedings

In the decision of MD [2022] WASAT 45, the term 'vexatiously' was defined under s 3 and s 4 of the SAT Act, with reference to the definition in the Vexatious Proceedings Restriction Act 2002 (WA) under s 3.

Vexatious proceedings are those that are an abuse of the process of a court or a tribunal, instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose, or conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose [26].

Section 88(2) of the SAT Act and Costs

While s 88(2) of the SAT Act empowers the Tribunal to order that all or any of the costs of a proceeding be paid by a party, s 88(1) defines 'costs of a proceeding' for this section as those 'other than the costs of a party,' excluding the legal costs sought by a party in a proceeding [28].

Section 87(3) of the SAT Act and Costs

The Tribunal does have the power to order payment of costs by a party under s 87(3) of the SAT Act 'to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding' [29].

However, as noted in Blaskiewicz, discussing Questdale, the legal rationale for ordering costs is not to punish the person against whom the order is made [17].

Key Take-Aways

• In summary, while the general principle in the SAT Act is that parties bear their own costs in guardianship and administration proceedings, the Tribunal does have discretion to award costs in specific circumstances.

• Key factors to consider when determining costs applications include the conduct of the parties, the reasonableness of their actions, and whether the proceedings were vexatious.

• The Tribunal will carefully examine each case, considering all relevant factors, and determine whether it is fair and reasonable for one party to bear the costs of another.