Pleading a Justification Defence in Defamation Cases: Key Principles

In defamation cases, a justification defence is raised when the defendant claims that the defamatory imputations carried by the published matter are substantially true.

In this blog post, I discuss the principles required to plead a justification defence in defamation cases, as set out in the recent case of Schiff v Nine Network Australia Pty Ltd (No 3) [2023] FCA 336 (following on from Wigney J in Rush v Nationwide News Pty Ltd and the Full Court in Australian Broadcasting Corporation v Chau Chak Wing).

It is important to note that although the cases discussed in this blog post were decided in a different state and in the Federal Court, the principles applicable to pleading a justification defence in defamation cases remain consistent across jurisdictions due to the Uniform Defamation Laws in Australia.

These laws were introduced to harmonise defamation legislation across the country, ensuring that the same principles and standards apply to defamation cases regardless of the state or court in which they are brought.

Therefore, as a defamation lawyer in Western Australia, the principles outlined in this blog post will be applicable and useful when dealing with defamation cases in our state as well.

The justification (or truth) defence

The defence of justification is set out in the various Uniform Defamation Acts, stating that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter are substantially true.

"Substantially true" is defined in s 4 as meaning "true in substance or not materially different from the truth."

Principles for Pleading a Justification Defence

1. Striking out pleadings: The power to strike out pleadings or portions of pleadings that do not disclose a reasonable cause of action or defence should be used sparingly and only in clear cases, to avoid depriving a party of a case they should be able to bring.

2. Particularity: Rule 16.41 of the Federal Court Rules 2011 (Cth) requires parties to state the necessary particulars of each claim, defence or other matter pleaded. The degree of particularity depends on the case's circumstances and the nature of the allegations.

3. Proof of truth: The particulars provided in support of a justification defence must be capable of proving the truth of the defamatory meaning sought to be justified. The court must determine whether the particulars provided, taken at their highest, can prove the truth of the defamatory imputations.

4. Specificity and precision: The particulars provided must be specific and precise enough to enable the claimant to understand the case they must meet. The defendant must specify the particulars of truth relied on with the same precision as an indictment, ensuring the plaintiff has sufficient notice of the allegations against them.

5. Proving substantial truth: To prove the substantial truth of an imputation, it is necessary to prove that every material part of the imputation is true. However, this does not mean that the defendant must prove the truth of every detail of the words established as defamatory, but rather meet the sting of the defamation.

6. No fishing expeditions: A defendant who pleads justification must do so based on the information they possess when the defence is delivered and cannot undertake a fishing expedition in hopes of finding supporting evidence.

7. Pleading conditions of mind: Rule 16.43 requires that a party who pleads a condition of mind (including knowledge and any fraudulent intention) must state the particulars of the facts on which they rely. For example, the publication might have alleged the plaintiff ‘knowingly’ received stolen property when they bought a new car off Gumtree.

Key take-aways

• When pleading a justification defence in defamation cases, it is crucial to adhere to the principles established in the caselaw.

• Doing so will ensure that the defendant has a solid foundation for their defence, while also providing the plaintiff with sufficient notice of the allegations against them.

Cases referred to in this blog post:

• Schiff v Nine Network Australia Pty Ltd (No 3) [2023] FCA 336

• Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473

• Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632

Extensions of Time for Filing Applications for Costs Assessments

As a costs lawyer in Western Australia, I often come across situations where clients seek advice on applications for extensions of time to file applications for costs assessments.

In this blog post, I discuss the general principles involved in such applications, with reference to the recent decision in Watson v Hewett & Lovitt Pty Ltd [2022] WASC 184 and other relevant cases.

Impact of COVID-19 on Extensions of Time

In Watson, the court acknowledged the impact of COVID-19 business interruptions on the practice of law and the possibility that the pandemic may be a valid reason for an extension of time in certain cases.

This is a significant development, as it reflects the reality of the challenges faced by legal practitioners and clients during an unprecedented time.

Legal Framework

The application for an extension of time was governed by sections 295(6) and 295(7) of the Legal Profession Act 2008 (WA).

These sections provide a 12-month limitation period for applications by clients or third party payers, with a possibility for extension in certain circumstances, such as when the client is not a "sophisticated client" and the court determines it is just and fair to grant the extension after considering the delay and the reasons for the delay.

Factors to Consider

The court's discretion in granting extensions of time must take into account the length of the delay and the reasons for the delay.

In Watson, the court considered various factors, including the absence of a costs agreement, confusion arising from the billing practices, overcharging by the law practice, good faith negotiations between the parties, and the impact of COVID-19 restrictions on the proceedings.

The court also noted that the law practice had previously agreed to an extension of time, implying that it had all the necessary information to deal with the assessment of costs.

Relevant Authorities

Two key cases on the proper approach to extensions of time under section 295(7) are Frigger v Murfett Legal Pty Ltd [2012] WASC 447 and Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112.

In Frigger, the court emphasized the importance of adhering to time limits and the potential prejudice to law practices resulting from delays in seeking assessments. However, the court in Watson distinguished the case on its facts, noting that the respondent had initially agreed to an extension of time, reducing the likelihood of prejudice.

Key Take-aways

• Applications for extensions of time to file applications for costs assessments require careful consideration of various factors, including the length and reasons for the delay.

• Courts are generally mindful of the potential impact on law practices and may require a clear case to justify an extension.

• However, in light of the recent decision in Watson, it is apparent that the courts are also willing to take into account the realities of the COVID-19 pandemic and its impact on legal practice.

Cases referred to in this blog post:

• Watson v Hewett & Lovitt Pty Ltd [2022] WASC 184

• Frigger v Murfett Legal Pty Ltd [2012] WASC 447

• Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112

Alzheimer’s Disease - Coping with Alzheimer’s

Caring For a Loved One with Alzheimer's Disease

To ensure appropriate and effective caregiving for loved one’s with Alzheimer’s Disease, the following steps should be taken by carers and family members:

1. Educating oneself about the stages and symptoms of Alzheimer’s disease, by attending support groups and seeking the advice of healthcare professionals.

2. Creating a safe and comfortable environment, making sure the person’s surroundings are free of hazards and ensuring easy access to important items (such as medication).

3. Establish a daily routine, including a set schedule for meals, activities, and personal care, to help your loved one feel more secure and comfortable.

4. Encourage social interaction, especially activities that your loved one enjoys, such as card games, going for walks and spending quality time with friends and family.

5. Be patient and understanding, respecting that people with Alzheimer’s disease can easily become confused, agitated, or disoriented, and are often not intentionally behaving in a difficult manner.

6. Take time to rest and recharge as a caregiver, seeking support from family and friends where needed.

This multi-faceted approach ensures the most appropriate and effective care can be provided for loved ones living with Alzheimer’s Disease.

Support Resources for Caregivers and Families

Dementia Australia is the peak body for people living with dementia and their caregivers, providing support, information, and advocacy, including counselling, support groups and education programs.

Carer Gateway is a government-funded service that provides information, education, counselling, respite care and financial support for people living with Alzheimer’s disease and their caregivers.

My Aged Care is a government-funded service, offering assessments, support planning, and assistance with access to aged care services.

National Dementia Helpline (1800 100 500) is a free, confidential service that provides information, support, and advice to people living with dementia and their caregivers.

Lifestyle Changes to Reduce Risk of Alzheimer’s

Making healthy lifestyle choices can help to reduce the risk of Alzheimer’s disease, or delay the onset of the disease.

These healthy lifestyle choices should include:

1. At least 30 minutes of regular exercise on most days of the week, which studies have shown to have a positive effect on brain health.

2. A healthy diet, rich in fruits, vegetables, whole grains, lean proteins, and healthy fats.

3. Activities such as reading, puzzles, or learning a new skill, to keep the brain active and engaged.

4. Maintaining social connections and activities.

5. At least 7 hours of quality sleep per night, to boost overall brain health.

6. Making regular appointments with a General Practitioner, to manage chronic conditions such as high blood pressure, diabetes, and high cholesterol.

7. Keeping alcohol consumption to moderate levels, to protect brain health.

These healthy lifestyle choices provide a starting point for reducing one’s risk of Alzheimer’s Disease.

If you need an experienced guardianship lawyer for help navigating an application for guardianship and/or administration, feel welcome to contact me. I will be happy to help.

Understanding the Act of Publication in Defamation Law

A fundamental aspect of defamation is the act of publication, which is when the defamatory material is made available to a third party.

In this blog post, I discuss the principles of publication in defamation law, drawing upon the recent decision of Google LLC v Defteros [2022] HCA 27 and other key cases.

Publication of Defamatory Matter – Principles

The law surrounding publication in defamation is considered "tolerably clear" (Trkulja v Google LLC).

The principles relating to the publication of defamatory matter were first established in Webb v Bloch and later affirmed by the High Court of Australia in Fairfax Media Publications Pty Ltd v Voller.

Intentionality in Publication

In the Voller case, the Court examined the requirement of the common law of defamation that the publication of defamatory matter must be “intentional”.

The Court held that all that is required for intentionality, is that the defendant's act of participation in the publication be voluntary.

Publication and Liability as a Publisher

The majority in Voller further explored what the law requires for there to be a publication and for a person to be liable as a publisher.

Publication is described as the actionable wrong in defamation, by which harm is caused to a person's reputation.

It is a technical term, referring to a bilateral act where the publisher makes the defamatory material available and a third party has it available for their comprehension.

Publication can also be understood as the process by which a defamatory statement or imputation is conveyed.

Following the principles in Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge.

This means that a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is considered a publisher.

Key take-aways

• The act of publication is a critical element in defamation law.

• The principles of publication established in Webb v Bloch and affirmed in Voller provide guidance on what is required for a person to be liable as a publisher.

• Understanding these principles is essential for defamation lawyers and anyone seeking to navigate this complex area of law.

Cases referred to in this blog post:

1. Google LLC v Defteros [2022] HCA 27

2. Trkulja v Google LLC [2018] HCA 25

3. Webb v Bloch (1928) 41 CLR 331

4. Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767; 392 ALR 540

Understanding the Tort of Injurious Falsehood

Injurious falsehood is a unique and distinct tort that protects businesses and individuals from the harmful effects of false statements.

Although often confused with defamation, it is important to recognize the key differences between these two legal concepts.

This blog post is about the nature and elements of the tort of injurious falsehood, drawing upon a recent decision, Jay & Anor v Petrikas & Ors (No 4) [2022] NSWDC 628, and other relevant case law.

Nature and Elements of Injurious Falsehood

According to Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, the tort of injurious falsehood has four elements:

1. A false statement of or concerning the plaintiff’s goods or business;

2. Publication of that statement by the defendant to a third person;

3. Malice on the part of the defendant; and

4. Proof by the plaintiff of actual damage suffered as a result of the statement.

It is crucial to note the key differences between injurious falsehood and defamation.

While defamation focuses on the protection of personal reputation, injurious falsehood protects proprietary and commercial interests.

As a result, a plaintiff must establish falsity, malice, and special damage in an injurious falsehood claim, unlike in defamation cases.

History and Development

The tort of injurious falsehood has its roots in actions for slander of title, where false statements cast doubt on the plaintiff's ownership of land, preventing them from leasing or selling the property.

This action expanded over time until it reached its modern form, covering falsehoods that cause actual damage when maliciously published.

The tort now includes various types of malicious falsehoods, such as slander of title and slander of goods, although it is not limited to these categories.

Relationship with the tort of deceit

Injurious falsehood shares similarities with the tort of deceit, as both involve false statements causing harm.

However, deceit focuses on false statements made to the plaintiff, while injurious falsehood concerns false statements made about the plaintiff to third parties.

Determining Injurious Falsehood at Trial: Key Questions for Judges

A judge must carefully examine the evidence and make determinations on several critical issues.

Drawing from the case of Jay & Anor v Petrikas & Ors (No 4) [2022] NSWDC 628, the following questions serve as a guide for judges when assessing the merits of an injurious falsehood claim:

1. Representations: The judge must first determine whether each of the publications in question conveyed certain representations. This involves assessing the content of the publications to establish if any false statements were made.

2. Connection to the plaintiff: Next, the judge must decide whether the representation(s) were of and concerning the plaintiffs (or either of them) in connection with their 'business.' This ensures that the false statements made in the publications relate to the plaintiffs and their commercial interests.

3. Falsity: If the representation(s) concern the plaintiffs and their business, the judge must then establish whether the representations were false. This step requires evaluating the truthfulness of the statements made in the publications.

4. Malice: If the representations are found to be false, the judge must determine whether the defendants published the publications (attributed to them) with malice. This involves examining the defendants' intentions and motives when making the false statements.

5. Actual damage: The judge must then decide whether the plaintiffs (or either of them) suffered actual damage as a result of the publications. This step requires an assessment of the harm caused to the plaintiffs' business or commercial interests due to the false statements.

6. Quantum of damages and additional awards: Finally, if actual damage is established, the judge must determine:

   1. The quantum of actual damage, which refers to the monetary value of the harm caused to the plaintiffs;

   2. Whether the plaintiffs (or either of them) are entitled to aggravated damages and/or exemplary damages. If they are, the judge must determine the quantum of either or both of such awards. Aggravated damages compensate for additional harm caused by the defendant's conduct, while exemplary damages serve to punish the defendant and deter similar behaviour in the future.

Key take-aways

• The tort of injurious falsehood is a distinct and important area of law that protects businesses and individuals from the damaging effects of false statements.

• Its unique elements and historical development set it apart from defamation.

Cases referred to in this blog post:

• Jay & Anor v Petrikas & Ors (No 4) [2022] NSWDC 628

• Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

The Grapevine Effect and Defamation in the Age of Social Media

The 'grapevine effect' is a concept that has gained significant importance in defamation law, particularly with the rapid rise of social media.

This term is used to describe how defamatory material may be repeated or republished to others, causing damage to a much wider audience than initially intended.

In this blog post, I discuss the grapevine effect in the context of defamation law and examine some recent cases that have dealt with this issue.

The Grapevine Effect Explained

As noted in the recent case of Hockings v Lynch & Adams [2022] QDC 127, the grapevine effect has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions.

The real damage caused by defamatory material cannot be ascertained and established, as it is impossible to track the scandal or determine the extent to which the poison may reach.

The grapevine effect provides a means by which a court may conclude that a given result was "natural and probable," depending on factors such as the nature of the false statement and the circumstances of its publication.

However, the grapevine effect does not operate in all cases, and republication is not always the "natural and probable" result of the original publication.

The Grapevine Effect and Social Media

The grapevine effect is particularly relevant in the context of social media, where defamatory material can spread rapidly and might emerge from its hiding place at some future date.

As observed in Hockings v Lynch & Adams, courts must be conscious that an award of damages needs to be sufficient to convince a bystander, who later learns of a slur through the grapevine, of the baselessness of the charge.

Case Examples

In O'Reilly v Edgar, the court accepted evidence that at least 1,000 members of the public group had downloaded and read defamatory posts, providing the foundation for a finding of wide publication.

In contrast, the case of Bolton v Stoltenberg relied on evidence of the 'reach' of a website in question and 'likes, comments, and shares' of defamatory posts, which the court used to infer that the material had been downloaded and read by a significant number of people.

Hockings v Lynch & Adams: A Closer Look

In Hockings v Lynch & Adams, the court found that in respect of certain occasions, posts were published beyond the admitted scope of publication due to factors such as the number of members in relevant Facebook groups and the overlap between groups.

However, the court also found that in other instances, publication was no greater than to those who were friends or followers of the pages in question.

Key take-aways

• The grapevine effect has significant implications in defamation law, especially in the context of social media.

• Courts must carefully consider the nature and extent of publication and republication in determining damages.

• As social media continues to evolve, it will be interesting to see how courts adapt to the changing landscape and deal with the grapevine effect in future cases.

Cases

In the blog post above, the following cases are mentioned:

1. Hockings v Lynch & Adams [2022] QDC 127

2. O'Reilly v Edgar [2019] NSWDC 374

3. Bolton v Stoltenberg [2018] NSWSC 1518

Understanding the concept of 'Vulgar Abuse' in defamation

With the proliferation of online communications and social media, the distinction between mere vulgar abuse and defamation has become increasingly important.

This blog post explores the concept of ‘vulgar abuse’ and the challenges that arise when assessing whether language damages a person's reputation.

The Concept of Vulgar Abuse

Vulgar abuse refers to language that is insulting or offensive but does not necessarily amount to defamation.

In order to distinguish between mere vulgar abuse and defamatory language, the context in which the terms are used must be considered, as well as the potential meanings conveyed by the language.

It is important to note that mere vulgar abuse, while offensive, does not inherently convey false statements that injure an individual's reputation.

Why Mere Vulgar Abuse is Not Defamatory

The primary reason mere vulgar abuse is not considered defamatory lies in its inability to cause significant harm to an individual's reputation.

While vulgar abuse may be offensive and hurtful, it often does not involve false statements about a person or their character.

Defamation, on the other hand, necessitates the communication of false information that damages a person's reputation in the eyes of others.

Moreover, vulgar abuse is often recognized as a form of emotional expression, rather than an assertion of fact.

For instance, the use of swear words or derogatory language may simply reflect the speaker's frustration or anger, rather than representing a meaningful claim about the targeted individual.

This emotional context can limit the extent to which vulgar abuse impacts a person's reputation, as right-thinking members of society may recognise it as an expression of emotion rather than a factual statement.

Challenges in Assessing Damage to Reputation

One of the main challenges in distinguishing between mere vulgar abuse and defamation is determining whether the language used has the potential to damage a person's reputation.

This can be particularly difficult in the context of social media and online communications, where the use of vulgar language and insults has become increasingly common.

The basic concepts are that:

• In order to assess whether language is defamatory or merely vulgar abuse, courts must carefully examine the context in which the words are used and the potential meanings that may arise.

• The presence of swear words or derogatory terms does not automatically preclude the possibility of defamation, as demonstrated in cases like McGuiness v J T Publishing Australia Pty Ltd [1999] NSWSC 471 and Aldridge v Johnston [2020] SASCFC 31.

• However, when offensive language is used without an accompanying false statement, it is less likely to be considered defamatory.

• As Spencer J explained in Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169, certain words may not be capable of defamatory meaning without a qualifying statement or context.

Key takeaways

• While mere vulgar abuse may be offensive and hurtful, it is not considered defamatory due to its inability to cause significant harm to a person's reputation and its nature as an emotional expression rather than an assertion of fact.

• Assessing whether language is defamatory or simply mere vulgar abuse can be challenging, particularly in the context of social media and online communications. To make this determination, courts and legal professionals must carefully consider the context of the language used and the potential meanings that may arise.

Online defamation by 'Keyboard Warriors'

Social media and online platforms given rise to a breed of online troublemakers known as "keyboard warriors."

As a defamation lawyer, I witness firsthand the impact these individuals can have on my clients' reputations and businesses.

In this blog post, I explore the phenomenon of keyboard warriors, their motivations, and the potential consequences of their actions.

I. Defining Keyboard Warriors

A keyboard warrior is an individual who aggressively and passionately expresses their opinions, beliefs, or arguments online, typically through social media, forums, or other digital platforms, but avoids or refrains from engaging in face-to-face discussions or real-life confrontations.

These individuals are often perceived as overly confrontational, argumentative, and critical, hiding behind the anonymity and safety that the internet provides.

They might engage in trolling, cyberbullying, or other disruptive online behaviors, with little regard for the feelings or opinions of others.

II. Why Do People Become Keyboard Warriors?

There are various reasons why someone might become a keyboard warrior.

Some of these reasons include:

1. Anonymity: The internet provides a sense of anonymity, which emboldens some people to express their opinions more aggressively than they would in a face-to-face setting.

2. Emotional venting: Some individuals may use online platforms as a way to vent their emotions and frustrations, making them more confrontational in digital spaces.

3. Social validation: The desire for likes, shares, and other forms of social validation can prompt people to be more vocal and aggressive in their online opinions.

4. Lack of social skills: Some individuals may lack the social skills necessary for effective face-to-face communication, causing them to feel more comfortable expressing themselves online.

5. Insecurity: People who feel insecure about their opinions or knowledge might use the internet as a platform to assert themselves, compensating for their perceived shortcomings.

6. Disinhibition effect: Online communication often lacks the social cues and context that exist in face-to-face interactions, leading to a reduced sense of responsibility and increased impulsivity.

7. Echo chambers: People often surround themselves with like-minded individuals online, which can reinforce their beliefs and encourage aggressive behavior towards those who disagree.

8. Activism: Some people may become keyboard warriors to promote a cause, spread awareness, or influence public opinion.

9. Boredom or entertainment: For some, engaging in online arguments can be a source of entertainment or a way to pass the time.

10. Power dynamics: The internet allows people to feel a sense of power and control over their interactions, which may lead them to be more confrontational.

Understanding the motivations behind keyboard warriors can help businesses and individuals better manage and respond to their actions.

III. The Consequences of Keyboard Warriors on Reputation and Business

The impact of keyboard warriors can be far-reaching and damaging to businesses and individuals alike.

Defamatory statements posted online can spread quickly, leading to financial loss, harm to personal and professional relationships, and damage to reputations that may take years to recover from.

Furthermore, legal remedies can be costly and time-consuming, and even when successful, they may not fully repair the damage done.

Key Take-Aways

• Keyboard warriors are individuals who aggressively express their opinions online but avoid face-to-face confrontations.

• The motivations for becoming a keyboard warrior can range from anonymity and emotional venting to activism and boredom.

• Defamatory statements made by keyboard warriors can cause significant harm to businesses and individuals, both financially and reputation-wise.

• Understanding the motivations behind keyboard warriors can help in developing effective strategies to manage and respond to their actions.

Suspicions alone not sufficient for Tribunal intervention under s 109 of the Guardianship and Administration Act 1990 (WA)

Introduction

As a guardianship lawyer in Western Australia, I am often asked about the powers and limitations of the State Administrative Tribunal (the Tribunal) in relation to enduring powers of attorney.

In this blog post, I discuss the decision of PT [2020] WASAT 147, which highlights the importance of establishing a proper reason for the Tribunal to make an order under section 109 of the Guardianship and Administration Act 1990 (WA) (the GA Act) after the donor of an enduring power of attorney has died.

Background

In PT [2020] WASAT 147, the applicants were daughters of the deceased donor (VM) of an enduring power of attorney, and sisters of the donee (GM). They sought orders under s 109(1)(a) and s 109(1)(b) of the GA Act to require GM to file and serve a copy of all records and accounts kept by him of dealings and transactions made by him in connection with the enduring power of attorney and to have those records and accounts audited by an auditor appointed by the Tribunal.

The Strike Out Application

GM applied to strike out the applicants' proceeding under s 47 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), arguing that the application for orders under s 109 of the GA Act was for an ulterior purpose, namely, to gather information for the purposes of a family provision proceeding, and that the real issue was the extent of VM's deceased estate.

The Tribunal's Powers Under Section 109

Section 109 of the GA Act allows a person with a proper interest in the matter to apply to the Tribunal for an order relating to an enduring power of attorney, including requiring the donee to file and serve records and accounts, and requiring those records and accounts to be audited.

The Tribunal's powers under s 109 of the GA Act are limited, particularly in situations where the donor has died. In such cases, the Tribunal can only require the donee to account for his or her actions under the enduring power of attorney during the lifetime of the donor under s 109(1)(a) or s 109(1)(b) of the GA Act, and cannot have any other remedial effect.

The Importance of Establishing a Proper Reason

The Tribunal in PT [2020] WASAT 147 emphasized that there must be a proper reason established to justify the making of an order under s 109(1)(a) or s 109(1)(b) of the GA Act. Mere suspicion is not sufficient. In this case, the applicants' reason for seeking orders under s 109(1) was based on their belief that the deceased donor's statement of assets and liabilities did not accurately reflect her assets at the time of her death. The Tribunal found that this reason amounted to no more than a suspicion, which was not a proper reason for an order to be made under s 109(1)(a) or s 109(1)(b) of the GA Act.

Key Take-Aways

• PT [2020] WASAT 147 emphasizes that mere suspicions are inadequate for Tribunal intervention under section 109 of the Guardianship and Administration Act 1990 (WA).

• To warrant an order under s 109(1)(a) or s 109(1)(b) of the GA Act, applicants must provide a valid reason.

• This requirement is especially important after the death of the enduring power of attorney's donor.

Understanding the Threshold for Guardianship Applications and Costs Consequences

Guardianship applications can be an essential legal tool for protecting the welfare of vulnerable individuals. However, they also carry significant consequences and should not be taken lightly. This blog post is about the threshold for making such applications in Western Australia, as well as the potential costs consequences for pursuing an application that does not meet this standard.

In this blog post, I make reference to WD [2022] WASAT 12, and refer to the relevant legislation, the Guardianship and Administration Act (GA Act).

Threshold for Making a Guardianship Application

The recent decision in WD [2022] WASAT 12 observed that guardianship and administration applications are "very intrusive and lead to the exploration of sensitive issues in a person's life."

As such, an applicant must have a reasonable belief, objectively grounded, of the grounds for making the application [53].

This means that the applicant should have strong evidence to support the need for the application and the belief that it is in the best interest of the person involved.

Costs Consequences

If an applicant is made aware that their application is unlikely to succeed, the Tribunal expects them to withdraw the application, unless they can provide contrary, probative medical evidence.

In cases where the applicant unreasonably pursues an untenable application, unnecessarily prolongs the application, or pursues it for an improper purpose, the Tribunal may consider awarding costs to the proposed represented person [54].

In WD [2022] WASAT 12, the Tribunal found that the applicant's conduct in pursuing the application warranted a costs order [91].

The applicant pressed contentions that were not supported by evidence, previously made in other fora without any findings in support, and not squarely addressed to the issues to be determined in the proceedings [91(a)].

The applicant also conducted the proceedings in a manner that resulted in significant legal costs for the proposed represented person [91(b)].

The Tribunal determined that it was appropriate for the applicant to pay the costs incurred by the proposed represented person in connection with the proceedings after a certain date [95].

Key take-aways

• Guardianship applications are an important legal tool, but they must be pursued responsibly and with a reasonable, objectively grounded belief. Applicants must be aware of the potential costs consequences if they do not meet this standard, as demonstrated in WD [2022] WASAT 12.

• To avoid unnecessary legal costs and potential harm to the proposed represented person, it is advisable to consult with an experienced guardianship lawyer before proceeding with an application. Please feel welcome to contact me.