Indemnity Costs and the Consequences of Unwarranted Allegations in Legal Proceedings

In the legal world, we often come across situations where allegations are made that should never have been made, and personal attacks are directed at lawyers. Such actions can have serious consequences, not only for the parties involved but also for the legal system as a whole.

In this blog post, I discuss the importance of indemnity costs and the potential consequences of lawyers making personal attacks, with a focus on a recent Supreme Court of the Australian Capital Territory (Court of Appeal) decision, Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13.

Indemnity costs are awarded in cases where a party has acted unreasonably or in bad faith, thereby causing the other party to incur additional costs. These costs are ordered in circumstances where allegations are made "which ought never to have been made," the case is "unduly prolonged by groundless contentions," or where "the applicant, properly advised, should have known that he had no chance of success" or "persists in what should on proper consideration be seen to be a hopeless case" (Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116 at [5]).

In the case of Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13, the Court ordered indemnity costs against the applicant for reagitating issues that had previously been determined adversely by the Court. The applicant, properly advised, must have been aware that he had no prospects of success in the application. The sixth respondent, in this case, was entitled to indemnity costs for the unwarranted allegations and groundless contentions made by the applicant.

Moreover, the applicant in this case had a propensity to advance personal attacks directed at counsel for the sixth respondent and the instructing solicitor. Allegations of this kind should not be made by admitted practitioners against other admitted practitioners without clear and compelling evidence. As no such evidence was advanced before the Court, the sixth respondent should not be put to any cost in respect of agitating those allegations. This matter formed an independent basis for ordering indemnity costs.

It is important to note that lawyers who make personal attacks or unwarranted allegations may face consequences beyond costs orders. In Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13, the Court considered whether it was appropriate to restrain the applicant's representative, Mr. Wilson, from continuing to act for the applicant. This decision was based on the potential finding that Mr. Wilson was not in a position to give impartial and independent advice to the applicant and was acting as a mere mouthpiece for his personal interest and grievance against the sixth respondent and their legal advisors.

The Court has inherent powers and powers under the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (rr 17.1 and 27.2) to make such orders. However, in this case, the Court decided not to make such an order due to the exceptional nature of the remedy and the lack of submissions on the issue by the parties.

In conclusion, it is crucial for legal practitioners to maintain professionalism and avoid making unwarranted allegations or personal attacks. Such actions may result in indemnity costs being ordered against their clients and potential consequences for the practitioners themselves. The case of Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13 serves as a reminder of the importance of upholding high standards of conduct in the legal profession.

Can Represented Persons Appoint Agents to Access Information Under the Guardianship and Administration Act 1990 (WA)?

In a recent Western Australian case, NE [2023] WASAT 30, the question arose as to whether a represented person, under the Guardianship and Administration Act 1990 (WA) (GA Act), could appoint an agent to access information on their behalf.

This blog post explores the issues surrounding the appointment of agents by represented persons, particularly in relation to the provision of information.

Appointment of Agents by Represented Persons

The case involved the question of whether s 77 of the GA Act permitted a represented person to appoint an agent to access information related to their estate. NE, the represented person, had signed an agency authority appointing two individuals as her authorized agents to access and inspect certain documents concerning her estate, including court orders and financial records held by the Public Trustee.

Section 77 of the GA Act

Section 77 of the GA Act provides that a person who has been declared in need of an administrator for their estate is incapable of entering into any contract, making any disposition in respect of their estate, or appointing or conferring any power on an agent or attorney in respect thereof, except to the extent that the administrator, with the consent of the Tribunal, authorizes them to do so.

The Tribunal's Decision

The Tribunal found that NE lacked the legal capacity to give an agency authority, as a declaration had been made under s 64(1) of the GA Act, and an administration order was in force in respect of her estate.

The Tribunal concluded that the appointment of an agent to receive information under s 47 of the PT Act was prevented by s 77 of the GA Act.

The Tribunal also noted that the GA Act's provisions reinforced the authority of the plenary administrator to deal with the represented person's estate during the currency of the administration order, to the exclusion of others, including the represented person. In this case, the Public Trustee held plenary authority and could perform any function in relation to NE's estate that she herself could perform if of full legal capacity.

Provision of Information to Purported Agents

The Tribunal emphasised that the GA Act contained confidentiality and other provisions which strictly controlled the release and use of information regarding represented persons.

The Tribunal noted that s 113 of the GA Act prohibited the disclosure of personal information relating to a represented person, except in certain authorized circumstances.

In this case, the Tribunal found that the purported agents were not entitled to the documents sought, as they were not within the category of persons to whom information could be given pursuant to s 47(3) of the PT Act. The Public Trustee, therefore, did not accept the agency authority which NE had executed.

Key take-aways

• The Tribunal's decision in NE [2023] WASAT 30 highlights the limitations on the ability of represented persons to appoint agents under the GA Act.

• Specifically, the case demonstrates that a represented person who is subject to an administration order lacks the legal capacity to appoint an agent to access information related to their estate.

• This serves as a reminder of the importance of understanding and adhering to the provisions of the GA Act and other relevant legislation when dealing with represented persons and their estates.

Can a Represented Person Appoint an Agent under Section 77 of the Guardianship and Administration Act 1990 (WA)?

One question that has arisen in the guardianship and administration law context in Western Australia is whether a represented person can appoint an agent under Section 77 of the Guardianship and Administration Act 1990 (WA) (GA Act).

In this blog post, I explore this issue, focusing on the recent decision of NE [2023] WASAT 30 and the relevant legislative provisions.

Background

In the case of NE [2023] WASAT 30, the applicants sought to be appointed as agents for NE under Section 47 of the Public Trustee Act 1941 (PT Act).

However, the Public Trustee did not acknowledge them as agents of NE, citing Section 77 of the GA Act, which concerns the capacity of a represented person to appoint an agent.

Section 77 of the GA Act

Section 77(1) of the GA Act provides that a represented person is incapable of entering into any contract or making any disposition in respect of their estate or any part thereof or interest therein, or appointing or conferring any power on an agent or attorney in respect thereof, except to the extent that the administrator, with the consent of the Tribunal, in writing authorises them to do so.

In NE [2023] WASAT 30, the Tribunal found that following the declaration made under Section 64(1) of the GA Act, Section 77 of the GA Act prevented NE from dealing with her estate by entering any contract or making any disposition or appointing or conferring any power on an agent without the authority of the administrator and the consent of the Tribunal.

The applicants argued that the words 'in respect thereof' in Section 77(1)(b) of the GA Act limited the prohibition on the appointment of an agent by a represented person to matters relating to contracts or dispositions from the estate of the represented person.

The Tribunal disagreed with this interpretation, finding that a plain reading of Section 77(1)(b) of the GA Act referred to the estate of the represented person, having regard to the preceding words in Section 77(1)(a) of the GA Act.

Implications

The decision in NE [2023] WASAT 30 confirms that a represented person cannot appoint an agent under Section 77 of the GA Act without the authority of the administrator and the consent of the Tribunal.

This interpretation is consistent with the broader legislative framework of the GA Act, which aims to provide certainty as to who has authority and control over the estate of a person found to be lacking capacity.

Key take-aways

• Based on the decision in NE [2023] WASAT 30 and the relevant provisions of the GA Act, a represented person in Western Australia cannot appoint an agent without the authority of the administrator and the consent of the Tribunal.

• It is important for guardianship lawyers and represented persons to be aware of these legislative provisions to ensure that they are acting in accordance with the law.

Understanding Conflicts of Interest in Enduring Powers of Attorney in Western Australia

An enduring power of attorney (EPA) allows a person to appoint someone to make financial and property decisions on their behalf, even if they lose capacity (although it must only be executed before the donor has lost the capacity to make an EPA).

In Western Australia, the Guardianship and Administration Act 1990 (the GA Act) regulates EPAs.

This article explores the concept of conflicts of interest in the context of EPAs, drawing on the Western Australian State Administrative Tribunal decision ET [2021] WASAT 36 as an example.

Establishing an Enduring Power of Attorney

An EPA is created and regulated by the GA Act in Western Australia. It allows the donor to grant the donee the authority to make decisions on their behalf.

The power can be general, allowing the donee to make any decision the donor could, or limited to specific acts (KS [2008] WASAT 29) (KS). The EPA remains valid even if the donor loses capacity (ET [2021] WASAT 36, [240]).

Conflicts of Interest and the Duty of Attorneys

An attorney acting under an EPA has a duty to act in the best interests of the donor.

The GA Act obliges the attorney to exercise their power with reasonable diligence to protect the interests of the donor (GA Act, s 107(1)).

If the attorney fails to do so, they may be liable for any loss caused by their failure (ET [2021] WASAT 36, [242]).

A conflict of interest can arise if an attorney prefers their own interests over the donor's interests.

In Tobin v Broadbent (1947) 75 CLR 378, Dixon J stated that a power of attorney should not be construed as authorizing the attorney to deal with the donor's property for the attorney's own benefit, unless there is specific and unambiguous authorization (ET [2021] WASAT 36, [52]).

ET [2021] WASAT 36 Case Example

In this case, ET had executed an EPA in 2018 and had not revoked it before losing capacity (ET [2021] WASAT 36, [239]).

A conflict arose between the attorneys and ET's family members, leading to accusations of impropriety and overcharging by one of the attorneys, CR (ET [2021] WASAT 36, [246]).

The Tribunal ultimately found that despite some extreme actions and language, CR had acted with genuine concern for ET's best interests and had maintained a constant and earnest approach to his role (ET [2021] WASAT 36, [260]).

The Tribunal decided not to appoint an administrator for ET's estate, as it was in her best interests for the current attorneys to continue managing her affairs, with support from her enduring guardian (ET [2021] WASAT 36, [258], [262], [268]).

Key take-aways

• Conflicts of interest can arise in the context of an EPA, and attorneys have a duty to act in the best interests of the donor.

• The ET [2021] WASAT 36 case illustrates the importance of attorneys acting with reasonable diligence and considering the donor's interests above their own.

• Attorneys should be mindful of potential conflicts of interest and ensure they are acting in accordance with their legal obligations under the GA Act.

When Security for Costs May Be Ordered in an Appeal

In a recent decision of the Western Australia Supreme Court, Cheng v Lam [2023] WASCA 65, the Court provided a useful summary of the factors to consider when deciding whether to order security for costs in an appeal.

This blog post will discuss these principles and examine how they were applied in the Cheng v Lam case.

The Principles

According to the Court in Cheng v Lam, the power to order security for costs is exercised to serve the interests of justice.

While the discretion to order security is unfettered, it must be exercised judicially, and 'special circumstances' do not need to be shown before an order for security for costs is made against an appellant [29].

An appellant's inability to satisfy a costs order should the appeal fail is generally a significant factor in favor of an order for security for costs. However, if the respondent has caused the appellant's impecuniosity, that may be a relevant countervailing factor [30].

Impecuniosity alone is not generally the sole ground for making an order for security. Even where the appellant is impecunious, the interests of justice may properly be served by not making such an order. Where security is ordered against an impecunious appellant, the amount ordered should not be greater than necessary [30].

Other relevant factors generally include the appellant's prospects of success, whether the appellant would be shut out of the appeal if security for costs were ordered, and whether there has been any delay in the respondent filing the application for security for costs [31].

Additionally, an appellant's non-compliance with earlier costs orders in favor of the respondent, at least to the extent that the non-compliance is not adequately explained, is also a relevant consideration [32].

Cheng v Lam

In Cheng v Lam, the Court found that it was in the interests of justice to grant the application for security for costs, considering several factors.

Some of these factors included the appeal's preliminary prospects of success, the fact that ordering security would not shut out the appellant from the appeal, and the appellant's consistent failure to pay costs orders against her in related litigation [32-35].

Furthermore, the Court considered the appellant's lack of material assets apart from her share in partnership assets, the disputed entitlement to certain funds, and the late filing of the application for security for costs [36-38].

Finally, the Court found that the amount sought for security was reasonable in the circumstances, although they rounded it down to $13,000 and did not provide a liberty to apply to increase the amount of security during the appeal [39].

Key take-aways

• The principles outlined in Cheng v Lam provide a useful starting point for lawyers to understand when security for costs may be ordered in an appeal.

• It is crucial to keep in mind that the interests of justice must always be the guiding principle when exercising discretion to order security for costs.

The Fundamental Obligation to Present Only Necessary Evidence to the Court

In the practice of law, it is essential for legal practitioners to present only the necessary evidence to the Court, allowing the issue(s) at hand to be determined efficiently and effectively. However, some cases demonstrate a failure to adhere to this fundamental obligation, resulting in the Court being burdened with excessive and irrelevant material.

This blog post discusses the importance of presenting only the necessary evidence and highlights the consequences of failing to do so, drawing on the recent decision in Bevan v Bingham & Ors [2023] NSWSC 19.

The Importance of Presenting Necessary Evidence

As established in Bevan v Bingham, there is a fundamental obligation upon all legal practitioners to carefully consider and identify the evidence necessary to put before the Court to allow the issue(s) to be determined.

Failure to do so not only burdens the Court with unnecessary material, but also increases the costs incurred by all parties involved, as legal representatives are obliged to read through all the material presented.

In the case of Bevan v Bingham, the plaintiff's solicitor failed to discharge this obligation, resulting in the Court being presented with an excessive amount of material, much of which was ultimately deemed irrelevant.

The costs incurred in preparing and reviewing such material were significant, and, ironically, this occurred in a case concerning costs owed to a legal practitioner.

The Consequences of Failing to Present Only Necessary Evidence

The practice of presenting excessive and irrelevant material to the Court is not only unacceptable but can also lead to significant consequences for those involved.

As noted in Bevan v Bingham, one appropriate sanction in cases of excess is an order that no costs be recoverable from the losing party in respect of the excess and that no costs be recoverable by the solicitor from the client for the excessive copying.

In order to avoid such consequences, it is essential for legal practitioners to exercise clinical legal judgment and take responsibility for selecting the material to be presented to the Court.

This will not only ensure a more efficient and effective determination of the issues at hand but also help control the costs incurred by all parties.

Key take-aways

• It is crucial for legal practitioners to adhere to the fundamental obligation of presenting only the necessary evidence to the Court.

• Failing to do so can result in significant consequences, such as increased costs and potential sanctions.

• By exercising clinical legal judgment and taking responsibility for selecting the material presented to the Court, legal practitioners can contribute to a more efficient and effective determination of the issues at hand, ultimately benefiting all parties involved.

The Importance of Providing Costs Updates: A Lesson for Lawyers

As a costs lawyer in Western Australia, I have observed numerous instances where lawyers have failed to provide their clients with updated costs estimates.

This failure can lead to a lack of transparency, frustration, and disputes between lawyers and their clients.

One recent case from New South Wales, Bevan v Bingham & Ors [2023] NSWSC 19, provides a useful illustration of the importance of providing costs updates.

In this case, a barrister (the plaintiff) was retained by a solicitor (the first defendant) to represent the second defendant in proceedings related to the Bankruptcy Act 1966 (Cth).

The plaintiff entered into a costs agreement with the first defendant, in accordance with section 180(1)(c) of the Legal Profession Uniform Law (NSW) (LPUL).

The plaintiff provided an initial costs estimate of $60,000 (although the agreement's breakdown actually totalled $56,000) for the anticipated work.

However, the plaintiff ultimately billed the first defendant a total of $349,360, without providing any ongoing updates of his estimated costs.

The court found that the plaintiff's failure to provide these updates constituted a contravention of the prescribed disclosure obligations under the LPUL.

According to section 178(a) of the LPUL, a costs agreement is void if a law practice contravenes the prescribed disclosure obligations.

The court determined that the plaintiff's agreement was void due to the failure to provide updated costs estimates.

This conclusion was consistent with the objectives of the LPUL, which include empowering clients to make informed choices about the legal services they access and the costs involved.

The Bevan case highlights the importance of lawyers providing regular costs updates to their clients.

Failing to do so not only contravenes the LPUL but also undermines the ability of clients to make informed decisions about their legal representation.

As this case demonstrates, the consequences of not providing costs updates can be severe, including the voiding of a costs agreement and potential disputes with clients.

In light of this case, it is essential for lawyers to ensure that they maintain open and transparent communication with their clients regarding costs.

This includes providing regular updates on costs estimates and promptly informing clients of any changes that may affect the overall costs of their legal representation.

By doing so, lawyers can help to foster trust, avoid disputes, and ensure that their clients are well-informed and confident in their decision-making.

The Intricacies of the "Reply to Attack" Defence in Defamation Law

Defamation law is a complex area that seeks to balance the freedom of expression with the protection of an individual's reputation.

One defence often invoked in defamation cases is the "reply to attack" defence, which arises from the common law principle of qualified privilege.

This blog post explores the "reply to attack" defence and its key aspects, with reference to the recent Australian Federal Court decision of Palmer v McGowan (No 5) [2022] FCA 893.

1. The Essence of the Defence:

The "reply to attack" defence is a species of common law qualified privilege that applies when a defendant responds to a public attack on their reputation or conduct by the plaintiff (or an interest the defendant is entitled to protect).

The essence of the defence lies in the presence of a sufficient connection between the defamatory matter and the privileged occasion (Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366).

The public's interest in hearing the response of the target to public criticisms is the basis for this privilege (Gould v Jordan (No 2) [2021] FCA 1289).

2. The Attack and the Response:

For the defence to operate, there must have first been an attack on the defendant (Gould v Jordan).

The response must be commensurate with the attack, but the law gives the defendant some latitude. As Dixon J explained in Penton v Calwell (1945) 70 CLR 219, the purpose of the privilege is to allow the defendant to freely submit their answer or counter-attack to the public to whom the plaintiff has appealed or attacked the defendant.

3. Proportionality and Malice:

Any question of proportionality arises not on the issue of whether an occasion of privilege exists, but rather at a later stage of the enquiry, namely whether the defendant was actuated by malice (Penton v Caldwell; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503).

4. Ripostes and Qualified Privilege:

In some instances, a defendant's reply may be considered a riposte, which is a response to an allegedly defamatory retort that was made in response to an earlier alleged defamatory attack.

The law generally does not extend qualified privilege to ripostes (Kennett v Farmer [1988] VR 991), as granting an initial defamer a right of reply would defeat the policy upon which the privilege is founded.

5. Palmer v McGowan (No 5) [2022] FCA 893

In the case of Palmer v McGowan (No 5) [2022] FCA 893, the judge thoroughly analyzed the "reply to attack" defense that was invoked by Mr. Palmer.

The judge first considered the legal principles surrounding the defense and then applied these principles to the facts of the case to determine whether the defense was available to Mr. Palmer.

The judge began by examining the relevant principles that underpin the "reply to attack" defence.

In applying these principles to the case, the judge closely scrutinsed the various "attacks" made by Mr. McGowan that Mr. Palmer claimed entitled him to the defence.

After assessing the evidence and arguments presented by both parties, the judge identified three main reasons for the ultimate unavailability of the defence to Mr. Palmer.

First, the judge noted that almost all of the alleged attacks by Mr. McGowan had already been responded to by Mr. Palmer before the relevant Cross-Claim Matters occurred. This led the judge to conclude that the Cross-Claim Matters were not sufficiently connected to any attack by Mr. McGowan, which is a crucial element of the "reply to attack" defense.

Secondly, as a result of this lack of connection, the judge determined that the Cross-Claim Matters were, in essence, separate attacks that did not qualify for the protection of the "reply to attack" defense.

Lastly, the judge also discussed the concept of "ripostes" in the context of the "reply to attack" defense. A riposte refers to a response to an allegedly defamatory retort that itself was made in response to an earlier alleged defamatory attack. The judge clarified that the law does not grant protection to such ripostes under the "reply to attack" defense.

Key take-aways

• The "reply to attack" defence in defamation cases is an intricate area of law that requires a careful analysis of the relationship between the initial attack, the defendant's response, and the presence of any ripostes.

• The case of Palmer v McGowan (No 5) [2022] FCA 893 provides valuable insight into the application of this defence and the factors that courts may consider when determining whether the defence is available to a defendant in a defamation claim.

Can the Tribunal Grant an Administrator the Power to Make a Binding Death Benefit Nomination (BDBN)?

As a guardianship lawyer in Western Australia, I often receive questions regarding the powers and functions of administrators.

One issue that arises is whether a tribunal has the power to grant an administrator the authority to make a binding death benefit nomination (BDBN).

In this blog post, I explore this question, drawing on the decision in SM [2019] WASAT 22 and relevant legislation.

Background:

In the SM case, an individual (SM) was injured in a motor vehicle accident and later received compensation of $5,745,933, held in trust by Australian Executor Trustees Limited (AET).

The tribunal appointed AET as the administrator of SM's estate with the sole function to pay a portion of the funds into superannuation for the benefit of SM.

AET sought an additional function to make and renew BDBNs for any superannuation fund of which SM was a member.

Relevant Legislation:

The Guardianship and Administration Act 1990 (WA) (the Act) governs the powers and functions of administrators. Section 69(2) of the Act permits an administrator to do only those things necessary for the performance of the functions invested in him or her.

Analysis:

The purpose of an administration order is for the conservation of a person's estate during their lifetime for their own advantage and benefit, but does not extend to the conservation and preservation of their estate after death, when the person has ceased to have any needs [89].

A BDBN is solely for the purpose of enabling transmission on a person's death of their superannuation benefit [90]. An administrator's authority ends upon a person's death [91], as does their duty and obligation to the person subject to the administration order.

In the SM case, the Tribunal found that making a BDBN is not for the purpose of carrying out an administrator's purpose, namely the conservation of the estate of a person under an administration order for their own advantage and benefit [92].

Consequently, the Tribunal concluded that it does not have the power to grant the additional function of making a BDBN to a limited or plenary administrator.

Conclusion:

• Based on the SM [2019] WASAT 22 decision and the Guardianship and Administration Act 1990 (WA), it appears that a tribunal does not have the power to grant an administrator the authority to make a BDBN.

• This is because the primary purpose of an administrator is to manage the person's estate during their lifetime, and their authority does not extend beyond the person's death.

Factors Relevant to Determining Whether a Person with a Mental Disability is Unable to Make Reasonable Judgments in Respect of Their Estate

When determining whether an individual with a mental disability is unable to make reasonable judgments in respect of matters relating to their estate, the Guardianship and Administration Act 1990 (WA) ("GA Act") sets out specific criteria that must be satisfied.

This blog post discusses these factors, drawing from the case Re RK [2021] WASAT 13, and examines how they can be applied in practice.

1. The Mental Disability Requirement

Section 64(1)(a) of the GA Act requires that a person be "unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate".

This means that the person must have a mental disability, and their inability to make reasonable judgments must arise because of that mental disability.

In Re RK, the Tribunal found that RK had a mental disability, and that this was the cause of his inability to make reasonable judgments in respect of his estate.

2. Subjective and Objective Tests

The application of Section 64(1)(a) involves both subjective and objective tests.

The subjective test requires assessing the person's ability to make reasonable judgments in relation to their actual estate.

The objective test, on the other hand, considers whether the person has the ability to engage in the mental reasoning required to make such judgments.

3. Factors Affecting a Person's Ability to Make Reasonable Judgments

A person's ability to make reasonable judgments in respect of their estate may depend on a variety of factors, such as their health and mental health.

Ultimately, an individual must have the intellectual ability necessary to make decisions related to their estate.

This includes the ability to:

- Understand the need for and sources of income

- Comprehend the value of income relative to expenditures

- Identify and calculate necessary expenditures for daily living and long-term financial objectives

- Devise a budget to live within their means

- Assess the financial implications of various decisions and contracts

- Organize their affairs to meet debts as they fall due

- Identify and implement problem-solving strategies for resolving unexpected financial issues

4. Estate Definition

In the context of the GA Act, a person's "estate" refers to the aggregate of their property, assets, and liabilities.

This encompasses the entirety of their real and personal property and all financial affairs.

5. Causation

The phrase "by reason of" in Section 64(1)(a) of the GA Act implies a relationship of cause and effect between a mental disability and a person's inability to make reasonable judgments in respect of their estate.

In Re RK, the Tribunal found that RK's mental disability was the cause of his inability to make reasonable judgments, although he was still able to make occasional decisions regarding simple discretionary expenditure.

Key take-away

• When assessing whether a person with a mental disability is unable to make reasonable judgments in respect of their estate, it is crucial to consider the relevant factors as set out in the GA Act and case law such as Re RK.