Section 85 Applications under the Guardianship and Administration Act - A Closer Look

Guardianship lawyers in Western Australia are often faced with complex cases involving the welfare and best interests of vulnerable individuals.

One aspect of guardianship law that may arise is an application made pursuant to section 85 of the Guardianship and Administration Act 1990 (WA) (GA Act).

This blog post provides an overview of section 85 applications, focusing on the grounds for review, the relevant legislative provisions, and some key considerations based on a recent decision by the State Administrative Tribunal (SAT) in NE [2023] WASAT 30.

Section 85: Circumstances for Review of Guardianship or Administration Orders

Section 85 of the GA Act outlines the circumstances in which the SAT is required to review a guardianship or administration order.

A review may be initiated by any person and must be carried out as soon as practicable after the application for review is made (s 85(2), (3)).

The SAT is required to review an order if a guardian or administrator:

a) dies;

b) wishes to be discharged;

c) has been guilty of neglect, misconduct, or default that renders them unfit to continue in their role;

d) appears to be incapable due to mental or physical incapacity;

e) is a bankrupt or under insolvency laws; or

f) being a corporate trustee, has ceased business, begun winding up, or is under official management or receivership.

In NE [2023] WASAT 30, the applicants sought a review of the administration order under s 85(1)(c), claiming that the Public Trustee had engaged in neglect or misconduct that rendered them unfit to continue as administrator.

Key Issues Raised in the Section 85 Application

Three key issues were raised in the application for review in NE:

1. The alleged failure of the Public Trustee to comply with obligations under s 47 of the Public Trustee Act 1941 (PT Act) regarding providing information and documents to the applicants (referred to as the "agency issue");

2. The issue of a letter of demand to the former partner of NE; and

3. The alleged failure of the Public Trustee to comply with obligations under s 70 of the GA Act, which requires acting in the best interests of NE, including consulting with her or members of her family before agreeing to consent orders in the Family Court.

The SAT's Approach to Section 85 Reviews

The SAT's approach to section 85 reviews was discussed in RK [2022] WASAT 112, where the Full Tribunal noted that the SAT is not responsible for reviewing the merits of individual decisions made by a guardian or administrator, as reasonable minds may differ on their merits.

The guardian or administrator's obligation is to act in the best interests of the represented person.

Consequently, a review under section 85(1)(c) is confined to cases of serious neglect, misconduct, or default that render the guardian or administrator unfit to continue in their role.

Outcome in NE [2023] WASAT 30

In NE, the State Administrative Tribunal (SAT) carefully examined the allegations made by the applicants under section 85(1)(c) of the GA Act, which centred on the Public Trustee's exercise of decision-making authority and judgment in their role as administrator.

Regarding the first issue (the agency issue), the applicants argued that the Public Trustee failed to provide necessary information and documents relevant to Family Court proceedings, as required under section 47 of the Public Trustee Act 1941 (PT Act).

The SAT considered the evidence presented, including the fact that the Tribunal had authorized disclosure by the Public Trustee to the applicants in October 2021. Despite this, the applicants claimed that they had not been informed of the progress of the divorce application or any financial settlement made for NE. The SAT, however, found that there was no clear evidence of neglect or misconduct by the Public Trustee in relation to this issue.

In relation to the second issue, the issuance of a letter of demand to NE's former partner, the applicants did not provide sufficient evidence or arguments to demonstrate that the Public Trustee's actions amounted to neglect, misconduct, or default that would render them unfit to continue as an administrator.

Concerning the third issue, the applicants alleged that the Public Trustee failed to act in NE's best interests by not consulting her or her family members before agreeing to consent orders in the Family Court, as required under section 70 of the GA Act. The SAT considered the conflicting evidence on this point, including communication with family members within the limitations of various restrictions operating in the case. The Tribunal ultimately determined that the matters raised by the applicants did not support a finding of neglect, misconduct, or default on the part of the Public Trustee.

Given the careful analysis of the issues raised by the applicants and the evidence presented, the SAT concluded that the applicants failed to demonstrate that the Public Trustee had engaged in serious neglect, misconduct, or default as required under section 85(1)(c) of the GA Act.

As a result, the Tribunal dismissed the application for review, allowing the Public Trustee to continue in their role as administrator.

This outcome in NE [2023] WASAT 30 highlights the importance of presenting compelling evidence and well-reasoned arguments in support of a section 85 application.

When Does an Enduring Power of Guardianship Become Valid in Western Australia?

In this blog post, I explain the process and requirements surrounding the validity of an enduring power of guardianship (EPG) in Western Australia, using the recent case BJT [2022] WASAT 73 as a reference.

Background of the Case

The BJT case involves a 70-year-old man with dementia whose family members had differing opinions on how best to support him.

The case led to applications under the GA Act by BJT's wife, PMT, to the Tribunal in late January 2022.

PMT sought a declaration of incapacity that would bring into force an EPG by which BJT had appointed her as his enduring guardian in November 2021, with his son from his first marriage, DRT, as a substitute.

Relevant Legislation

Sections 110B and 110E of the GA Act outline the basis on which a person may execute an EPG:

- Section 110B states that a person who has reached 18 years of age and has full legal capacity may make an EPG appointing a person as the enduring guardian or two or more persons as joint enduring guardians.

- Section 110E sets out the formal requirements for an EPG, including the need for the document to be signed by the appointor, witnessed by two persons, and signed by the appointees (both the enduring guardian and any substitute enduring guardian) to indicate their acceptance of the appointment.

The BJT Case and Validity of the EPG

In the BJT case, the November 2021 EPG was executed by BJT after a recommendation by a specialist geriatrician.

BJT appointed PMT as his enduring guardian and DRT as the substitute. However, DRT's refusal to sign for acceptance of his role as substitute guardian raised the question of whether this rendered the entire EPG invalid.

The Tribunal’s Analysis

The Tribunal examined the statutory interpretation of s 110E(1)(e) of the GA Act, which stipulates that an EPG is not valid unless signed by each person being appointed as an enduring guardian or substitute enduring guardian, indicating their acceptance of the appointment.

In light of the case, the Tribunal delved into the text, context, and purpose of the provisions to better understand the legislation's intent.

To facilitate interpretation, the Tribunal referred to s 18 of the Interpretation Act 1984 (WA), which emphasizes promoting the purpose or object underlying the written law.

The long title of the GA Act and s 4 of the Act demonstrate a focus on providing decision-making assistance to those in need, offering various means to achieve this, and preserving freedom of decision and action wherever possible. This approach aligns with the least restrictive principle in s 4(4) and s 4(6) of the GA Act.

In assessing the meaning of a provision, the Tribunal also considered extrinsic material, such as the second reading speech for the GA Act. The speech highlights the Act's aims to allow individuals with competence to function independently and protect civil liberties through the right of appeal when guardianship or administration orders are made. This further demonstrates the emphasis on freedom of decision and action within the GA Act.

The Tribunal concluded that a rigid literalist interpretation of s 110E(1)(e) would be inconsistent with the GA Act's overall purpose, which focuses on preserving an individual's freedom of decision and action.

A strict interpretation could potentially undermine the Act's objectives by giving a substitute guardian the power to invalidate the entire EPG by simply refusing to sign their acceptance.

Instead, the Tribunal favored a construction that aligns with the context and purpose of the GA Act. They determined that s 110E(1)(e) requires a person to sign their acceptance to bring their own appointment into force, but the absence of a signature from a substitute guardian does not invalidate other parts of the EPG, such as the appointment of the enduring guardian. The substitute guardian's decision not to sign only affects their own appointment, which only comes into effect under specified circumstances.

Based on this analysis, the Tribunal found the November 2021 EPG to be valid, as the refusal of the substitute guardian to sign did not render the entire document invalid.

The appointment of the enduring guardian, PMT, was not affected, and it remained possible for the substitute guardian to sign the document and accept their appointment until the EPG is revoked.

The Tribunal's Decision

The Tribunal determined that the preferable construction of s 110E(1)(e) is one that recognizes the donor's competent appointment of the enduring guardian, even if the proposed substitute guardian does not sign to accept their appointment.

In the BJT case, this meant that PMT's appointment as the enduring guardian was considered valid, despite DRT's refusal to sign for acceptance of his role as substitute guardian.

Key Take-Aways

• In summary, the BJT case provides an insightful example of the considerations involved in determining the validity of an EPG under the GA Act.

• Based on this decision, a substitute guardian does not have the power to invalidate the entire EPG by simply refusing to sign their acceptance.

Coaching of Subjects and In Camera Evidence in Guardianship Matters: A Look at K [2018] WASAT 96

Guardianship law is a complex area of practice that deals with the appointment of individuals or organisations to make decisions on behalf of a person who is unable to make decisions for themselves due to a mental disability.

In this blog post, I discuss the coaching of subjects of applications, as well as evidence being given in camera by subjects in guardianship matters, drawing on the decision in K [2018] WASAT 96.

Assessing the Genuine Wishes and Views of Subjects in Guardianship Matters

The case of K [2018] WASAT 96 underscores the significance of accurately evaluating the genuine wishes and views of subjects in guardianship matters. In this instance, K provided in camera evidence to the Tribunal on two separate occasions, during which her expressed views were notably contradictory.

This discrepancy in K's testimony illustrates the challenge of ensuring that the views expressed by a subject are authentically their own and not unduly influenced by other parties.

The Tribunal in K [2018] WASAT 96 ultimately determined that K's views conveyed at Hearing 2 were more likely to have been 'coached' by her father or articulated by K as a consequence of being exposed solely to her father's perspectives and influence (paragraphs 88-90).

The Role of In Camera Evidence

Giving evidence in camera allows the subject of an application to provide evidence to the Tribunal without the presence of other parties.

In the case of K [2018] WASAT 96, this process was used at both Hearing 1 and Hearing 2. Allowing subjects to give evidence in camera can help to ensure that their testimony is not influenced by external factors or other parties, ensuring that the Tribunal can accurately assess their true wishes and views.

Legislation in Guardianship Matters

The Guardianship and Administration Act 1990 (WA) provides the framework for guardianship and administration orders in Western Australia. In the case of K [2018] WASAT 96, the Tribunal accepted and found that K continues to be a person for whom guardianship and administration orders can and should be made due to her diagnoses, which constitute mental disability (paragraph 22).

Section 51(2) of the Act requires the Tribunal to consider various factors in making decisions regarding guardianship and administration orders, including the wishes and views of the person, their best interests, and their relationships with others involved in their care.

Key Take-Aways

• The case of K [2018] WASAT 96 serves as a reminder of the importance of properly assessing the wishes and views of subjects in guardianship matters, as well as the potential for coaching to occur.

• It also highlights the role of in camera evidence in ensuring that a subject's testimony is not influenced by external factors or other parties.

Understanding Imputations in Defamation Law

Imputations play a crucial role in defamation cases, as they help identify the defamatory meaning or meanings conveyed by the published material.

This blog post discusses the significance of pleading imputations in defamation cases, the role of context in determining their meaning, and the importance of ensuring that imputations are sufficiently precise and unambiguous.

Imputations under the Uniform Defamation Legislation

The significance of pleading imputations has evolved under the uniform defamation legislation. Previously, under the Defamation Act 1974 (NSW), each imputation constituted a separate cause of action, as seen in Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174. However, under the current legislation, there is a single cause of action for the publication of defamatory material, even if multiple imputations are conveyed.

Pleading imputations serves several purposes, including identifying the scope of inquiry for trial and allowing defendants to raise defences, including statutory defences under sections 25 and 26 of the Defamation Act, which are responsive to imputations (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125).

The Role of Context in Determining Imputations

The context of the published material is crucial in determining the meaning of a pleaded imputation.

According to Mason P in Greek Herald Pty Ltd v Nikopoulos (2002) 54 NSWLR 165, imputations should not be considered in isolation, but rather, in relation to the subject matter of the publication.

Context may clarify or intensify the "sting" of an imputation, or conversely, it may weaken it (Greek Herald Pty Ltd v Nikopoulos at [20]–[22]).

However, it is important to note that context cannot be used to change the meaning of an imputation that has been clearly chosen by the pleader (Charan v Nationwide News Pty Ltd [2019] VSCA 36 at [140]).

The Importance of Precision and Unambiguity

Imputations should be sufficiently precise and unambiguous to enable a fair trial.

Ambiguity in imputations may need to be resolved as an interlocutory issue before or during the trial (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [171]).

The trier of fact, whether a judge or a jury, should not have to resolve any ambiguity in the pleaded imputations, as their task is to determine the meaning of the published material rather than the meaning of the parties' pleadings (Singleton v Ffrench; Greek Herald Pty Ltd v Nikopoulos at [24]; Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 at [68]; Fenn v Australian Broadcasting Corporation at [47]).

Key Take-Aways

• Imputations are central to defamation cases, as they help define the defamatory meaning or meanings conveyed by the published material.

• When pleading imputations, it is important to consider the context in which they appear and to ensure that they are sufficiently precise and unambiguous.

• By doing so, parties can streamline the litigation process and enable a fair and efficient trial.

Understanding the Hore-Lacey Defence in Defamation Law

Defamation law plays a critical role in protecting reputations and providing recourse for individuals who have been wronged through false statements.

One of the key defences in defamation law is the Hore-Lacey defence, which has its origins in the case of David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667.

In this blog post, I explore the Hore-Lacey defence and how it has evolved over time, by examining its application in various cases.

The Hore-Lacey Defence Explained

The Hore-Lacey defence is based on the principle that a defendant can assert a differently nuanced meaning or imputation from that asserted by the plaintiff, as long as it does not differ in substance (whether more or less injurious or serious in its defamatory character) (Hore‐Lacy 1 VR at 689 [63], Charles JA).]

This defence allows a defendant to plead the truth of an imputation that is less injurious and not substantively different from the one pleaded in the statement of claim, as a complete defence to the plaintiff's claim (Moodie 28 WAR at 320 [19]–[20] per Anderson J, 328 [58] per Stetlyer J at 335–336 [94] and per McLure J at [59]).

Key Cases and Developments

In Wing v The Australian Broadcasting Corporation [2018] FCA 1340, the respondents argued that their defence of justification based on the variant imputations constituted a good Hore-Lacy defence. They cited West Australian Newspapers Ltd v Elliot (2008) 37 WAR 387, Hyams v Peterson [1991] 3 NZLR 648, and Lewis v Daily Telegraph Ltd [1964] AC 234 as authorities that supported their position. The court ultimately held that the Hore-Lacy defence applied in this case.

Another important case is Polly Peck (Holdings) Ltd v Trelford [1986] QB 1000, which Hore-Lacy 1 VR 667 expressly departed from. In Hore-Lacy, the court required the defendant to plead the specific imputation that it alleged the matter complained of conveyed, so that neither party could raise a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff at trial (1 VR at 689 [63], Charles JA).

Furthermore, the case of Mickelberg v Hay [2006] WASC 285 discussed the way in which the Full Court of the Supreme Court of Western Australia in Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 had dealt with Polly Peck [1986] QB 1000 and Hore‐Lacy 1 VR 667. The court in Moodie adopted a different test by allowing the defendant to plead the truth of an imputation of a lesser degree of seriousness as a complete defence to the plaintiff's claim.

Extending the Limitation Period for Defamation Actions: Key Considerations

Defamation law exists to protect individuals from false statements that may damage their reputation.

In Australia, there are strict time limits within which defamation actions must be commenced. However, in certain cases, the court may grant an extension of this limitation period.

This blog post discusses the factors that courts consider when deciding whether to extend the limitation period for defamation actions, with reference to the decision in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 and other relevant cases.

General Principles

Section 56A of the earlier and relevant version of the NSW Limitation Act outlines the circumstances in which a court may extend the limitation period for defamation actions. The court must be satisfied that it was not reasonable for the plaintiff to have commenced the action within one year from the date of the publication, and may extend the limitation period up to a maximum of three years from the date of publication.

As explained in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 and Paule v McKay (No 2) [2022] ACTSC 190, the court engages in an evaluative analysis to determine whether it was not reasonable for the plaintiff to have commenced the action within the one-year period. This analysis is based on objective factors and the individual circumstances of each case.

Factors Considered by the Court

In determining whether it was not reasonable for the plaintiff to have commenced the action within the one-year period, the court may consider factors such as:

1. The plaintiff's contemporary, subjective views and reasoning: The court will examine the plaintiff's actual reasons for not commencing the action within the one-year period, as explained in Carey v Australian Broadcasting Corporation [2010] NSWSC 709.

2. Changing circumstances during the limitation period: The court must consider any changes in the plaintiff's situation during the limitation period and how these changes may have impacted the reasonableness of commencing the action.

3. The "ordinary" position when criminal allegations are made: As noted in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, the court must evaluate the plaintiff's situation in light of any related criminal allegations and the potential impact on the defamation action.

4. The discretion conferred by s 56A(2) of the Limitation Act: The court has the discretion to extend the limitation period if it is satisfied that it was not reasonable for the plaintiff to have commenced the action within the one-year period.

Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385

In Lehrmann, the court identified several key factors that influenced its decision to extend the limitation period for the defamation action. These factors included:

1. The plaintiff receiving express advice to defer any defamation proceedings and relying on that advice.

2. The possibility of prosecution being a real concern for the plaintiff, leading him to prioritize the criminal allegations over the defamation action.

3. The potential prejudice to the plaintiff's defense in the criminal case if he pursued the defamation action simultaneously.

4. The plaintiff's efforts to engage with the Australian Federal Police (AFP) in an attempt to avoid prosecution, which aligned with his broader defense strategy.

5. The unique and compelling circumstances of the case, including the high-profile nature of the criminal allegations and the plaintiff's need to direct his resources and energies towards his defense.

Key Take-Aways

• When determining whether to extend the limitation period for a defamation action, courts consider a range of factors that may render it not reasonable for the plaintiff to have commenced the action within the one-year period.

• Ultimately, the court's decision will depend on the individual circumstances of each case, as well as an objective evaluation of the relevant factors.

• In light of the cases discussed, it is clear that courts will carefully examine factors such as the plaintiff's subjective views and reasoning, changing circumstances during the limitation period, any related criminal allegations, and the potential impact of the defamation action on other legal proceedings. Importantly, the court's evaluation is not based on a set of rigid rules, but rather a holistic assessment of the circumstances surrounding the plaintiff and the defamation claim.

• Individuals considering pursuing a defamation action should be aware of the strict time limits that apply and the factors that courts consider when assessing an application for an extension of the limitation period. It is crucial to consult with a legal professional experienced in defamation law to ensure that any potential claim is pursued in a timely manner and within the appropriate legal framework.

• Moreover, individuals facing both defamation claims and related criminal allegations should carefully weigh the potential consequences of pursuing both legal actions simultaneously. In such cases, prioritising one's defence in criminal proceedings may be a compelling factor in convincing a court to extend the limitation period for a defamation action.

The Role of Statutory Interpretation in Guardianship and Administration Proceedings in Western Australia

In guardianship and administration proceedings, the State Administrative Tribunal (SAT) is responsible for interpreting and applying the provisions of the Guardianship and Administration Act (GA Act) to ensure the best interests of vulnerable individuals are upheld.

This blog post explores how the Tribunal engages in statutory interpretation in relation to the provisions of the GA Act, using insights from the decision in GG [2021] WASAT 133.

Protective Nature of the GA Act

The GA Act is a form of protective legislation designed to provide safeguards for individuals with impaired cognition, who may be at risk of making decisions contrary to their best interests or vulnerable to the decision-making of others (SM[2015] WASAT 132 at [7]).

It allows for the appointment of guardians for personal decision-making and administrators for financial decision-making under specific circumstances.

Principles Governing the GA Act

The starting point for any proceedings under the GA Act is the observance of the principles set out in section 4.

The primary concern of the Tribunal is the best interests of the person in respect of whom orders have been made or proposed (referred to as the represented person) (GG [2021] WASAT 133 at [27]).

Other principles include the presumption of capacity, the need for orders to be necessary and least restrictive, and the consideration of the represented person's views and wishes (GG [2021] WASAT 133 at [27]).

Key Provisions Relevant to Guardianship and Administration Orders

The process involved in making guardianship and administration orders can be summarised in the following steps, as outlined in SM (GG [2021] WASAT 133 at [28]):

1. Determine the represented person's capacity.

2. If incapacity is established, assess whether the represented person is in need of guardianship and administration orders.

3. If orders are needed, decide the authority granted to the guardian and administrator, who should be appointed, and the review date.

Statutory Interpretation of the GA Act

To resolve matters in contention and apply the GA Act, the Tribunal must engage in statutory interpretation, ensuring that each provision is interpreted consistently with the language and purpose of the entire statute (GG [2021] WASAT 133 at [30]). Key considerations and approaches that promote this objective include:

a) Anchoring the construction of legislation in the text itself, but considering its context and purpose (GG [2021] WASAT 133 at [30]).

b) Considering statutory context from the beginning of the interpretation process (GG [2021] WASAT 133 at [30]).

c) Favouring constructions that promote congruity or coherence between intersecting provisions (GG [2021] WASAT 133 at [30]).

d) Ensuring each provision in a legislative instrument has 'work to do' (GG [2021] WASAT 133 at [30]).

e) Taking into account the existing state of the law, the history of the legislative scheme, and the mischief the statute is directed at (GG [2021] WASAT 133 at [30]).

f) Identifying legislative purpose through objective statutory construction, rather than searching for legislators' intentions or superimposing a 'desirable' policy objective (GG [2021] WASAT 133 at [30]).

Key Take-aways

• The process of statutory interpretation plays a critical role in the application of the GA Act in guardianship and administration proceedings.

• By adhering to the principles and key provisions of the GA Act, and engaging in a thoughtful process of statutory interpretation, the Tribunal ensures that the best interests of vulnerable individuals are protected and upheld.

Understanding Section 43 of the Guardianship and Administration Act in Western Australia

As a guardianship lawyer in Western Australia, I regularly consider section 43 of the Guardianship and Administration Act when assessing how to best advocate for my clients.

This section is crucial when it comes to making guardianship orders for adults who need assistance in their personal affairs.

In this blog post, we will explore section 43 and how it is applied in light of the recent decision GG [2021] WASAT 133.

Section 43 - Making of Guardianship Order

According to section 43(1) of the Guardianship and Administration Act, the State Administrative Tribunal can make a guardianship order if it is satisfied that a person:

a) has attained the age of 18 years;

b) meets at least one of the following criteria:

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; or

iii) is in need of oversight, care or control in the interests of their own health and safety or for the protection of others.

Section 43(1) must be read together with section 4 of the Act, which contains various presumptions about a person's capacity. In particular, section 4(3)(c) presumes that a person is capable of managing their own affairs.

The Nature and Operation of Section 43(1)(b)

In the case of GG [2021] WASAT 133, the Tribunal analysed the nature and operation of section 43(1)(b).

It was noted that this section deals with the question of capacity in a global sense, rather than focusing on the ability to make specific decisions.

Each of the three criteria in section 43(1)(b) has a distinct meaning and application, and they must be read together.

The first criterion (i) is concerned with a person's functional incapacity, specifically their inability to look after their own health and safety.

The second criterion (ii) focuses on an inability to make reasonable judgments, pertaining to any or all matters relating to the person.

The third criterion (iii) refers to a need for oversight, care or control.

Assessing a Person's Capacity

In GG [2021] WASAT 133, the Tribunal provided guidance on assessing a person's capacity to make reasonable judgments about matters relating to their person.

This assessment should be:

a) conducted on both an objective and subjective basis;

b) based on the particular personal needs and decisions that the person may be called upon to make; and

c) evaluated in light of whether the person has the ability to understand, retain, and weigh up relevant information, appreciate the consequences of their decisions, and implement those decisions.

Meaning and Application of the Third Criterion in Section 43(1)(b)(iii)

The meaning and application of the third criterion in section 43(1)(b)(iii) of the Guardianship and Administration Act has been the subject of differing interpretations in previous Tribunal decisions.

In particular, two cases - G [2017] WASAT 108 and KRM [2017] WASAT 135 - presented contrasting views on whether the criterion could stand on its own or if it required overcoming the presumption of capability first.

The GG [2021] WASAT 133 decision offered clarity on the interpretation of this specific criterion.

In the GG [2021] WASAT 133 decision, the Tribunal clarified the interpretation of the third criterion in section 43(1)(b)(iii). The decision emphasised that each of the three criteria should not be construed in isolation, and the context of the Act should be taken into consideration. The Tribunal determined that the term "need" in the third criterion should be understood as reflective of the incapacity of a person to manage their own affairs, and therefore, it should not be viewed as a self-standing ground for intervention.

The GG [2021] WASAT 133 decision further expounded on the third criterion, stating that the need for oversight, care, or control is directed towards a person's functional incapacity. This means that the focus should be on a person's inability to be self-directed, exercise control, and make decisions about their own care or avoid putting others at risk. The decision also highlighted that the language of the provision is widely cast, addressing the consequences of a person's functional incapacity without specifically targeting the cause.

The GG [2021] WASAT 133 decision successfully reconciled the differing views from the Ms G and KRM cases, offering a balanced interpretation of the third criterion in section 43(1)(b)(iii). By focusing on functional incapacity and placing the criterion within the broader context of the Act, the decision provided a more comprehensive understanding of the meaning and application of this criterion in guardianship cases.

Key take-aways

• Section 43 of the Guardianship and Administration Act plays a critical role in determining whether a guardianship order should be made for a person who needs assistance in their personal affairs.

• Understanding the construction and application of this section is essential for guardianship lawyers and individuals involved in guardianship matters.

• By examining the GG [2021] WASAT 133 decision, we gain valuable insight into the interpretation and application of section 43(1)(b) and the criteria that must be satisfied before a guardians

Understanding Guardianship Matters: Assessing Evidence and Criteria in Western Australia

Guardianship matters can be complex and require a deep understanding of the legal framework in place.

In this blog post, I explore how the State Administrative Tribunal (SAT) of Western Australia assesses evidence and applies criteria in guardianship matters.

I rely on extracts from the decision MH [2022] WASAT 74 to provide a general overview and illustrate how evidence from witnesses is assessed in such cases.

Legislation and Application

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

Under section 17A(1) of the GA Act, a person may apply for a review of a decision made by the SAT concerning guardianship orders.

Criteria Used by the Tribunal

In the case of MH [2022] WASAT 74, the SAT considered various criteria to determine whether a person is in need of a guardian.

According to the decision, these criteria included the person's capability to look after their own health and safety, their ability to make reasonable judgments in respect of matters relating to their person, and whether they were in need of oversight, care, or control in the interests of their own health and safety[4].

Assessing Evidence from Witnesses

The SAT follows a thorough process in assessing evidence and evaluating the credibility of witnesses.

In the MH [2022] WASAT 74 case, several witnesses provided testimony, and the Tribunal assessed their credibility based on factors such as:

1. Clarity, confidence, and forthrightness in their statements [31].

2. The scope and depth of their testimony [31].

3. Their qualifications and expertise in the subject matter, if relevant [35].

4. The presence of any personal interests or biases that may affect the credibility of their testimony [33].

5. The extent to which their testimony aligns with other evidence presented in the case [34].

In this case, the Tribunal carefully evaluated each witness's testimony, considering both factual information and expert opinions.

The SAT acknowledged the limitations of some witnesses' statements and took into account their qualifications and expertise when evaluating their opinions [35].

Furthermore, the Tribunal considered any potential personal interests or biases that could affect the witnesses' credibility [33].

Outcome and Guardianship Order

After assessing all the evidence and witness testimonies, the SAT in MH [2022] WASAT 74 concluded that the person met the necessary criteria outlined in the GA Act and appointed a limited guardian with specific functions [4].

The Tribunal also set a review period to ensure the ongoing suitability of the guardianship order [4].

Key Take-Aways

• Understanding how the SAT assesses evidence and applies criteria in guardianship matters is essential for navigating this complex area of law.

• By examining relevant legislation and case law, such as the MH [2022] WASAT 74 decision, legal professionals and individuals involved in guardianship matters can gain valuable insights into how the Tribunal evaluates evidence from witnesses and makes decisions in these cases.

Can an Incorporated Legal Practice Recover Costs for Work Done by Its Solicitors When Acting for Itself?

In light of the Pentelow decision, there has been a growing interest in the question of whether an incorporated legal practice acting for itself can recover costs for work done by its solicitors. In this blog, I explore the current state of the law on this topic.

The General Rule: Self-Represented Litigants Cannot Recover Costs

As a general rule, self-represented litigants are not entitled to recover any recompense for the value of their time spent in litigation. This rule is based on the principle that a party should not be compensated for their own time and effort spent in pursuing or defending a legal claim.

In Bell Lawyers Pty Ltd v Pentelow, the High Court of Australia determined that the Chorley exception, which previously allowed self-represented solicitors to recover their professional costs, should not be recognized as part of Australian common law.

Incorporated Legal Practices and the Employed Solicitor Rule

The question of whether an incorporated legal practice can recover costs for work done by its solicitors when acting for itself was left open in Bell Lawyers. The court noted that it might be queried whether a solicitor employed by an incorporated legal practice of which he or she is the sole director has sufficient professional detachment to be characterized as acting in a professional legal capacity.

Subsequent cases have sought to address this question.

In United Petroleum Australia Pty Ltd v Herbert Smith Freehills, the Court of Appeal held that a claim by a firm of solicitors (operating as a partnership) to recover costs for the work of its employees fit within the general rule for self-represented litigants, and not within the "well-established understanding" relating to employed solicitors.

The "employed solicitor rule" refers to a well-established understanding in Australian law that allows non-lawyer parties, such as government entities or corporations, to recover costs for legal services provided by their in-house or employed lawyers. This rule operates within the indemnity principle, as even though there is no liability to pay a third party (such as an external law practice), there is still a clear distinction between the client and the lawyer, as well as a functional equivalence between paying external lawyers and offsetting the overhead costs incurred by employing lawyers to act on behalf of their employer.

However, this understanding does not extend to parties that are lawyers representing themselves. According to the United Petroleum Australia Pty Ltd v Freehills case, the only exception that previously allowed lawyers to recover costs for self-representation was the Chorley exception, which has since been overruled in Bell Lawyers. Allowing law firms to recover costs on the basis that the legal work was undertaken by employed solicitors, rather than the firm's owners, would potentially undermine the outcome of the Bell Lawyers decision.

In Guneser v Aitken Partners, the court considered whether an incorporated legal practice acting for itself could recover costs in respect of work done by its employee solicitors. The court followed a similar approach to the Court of Appeal in United Petroleum, asking whether the incorporated legal practice fit within the general exclusionary rule for self-represented litigants and whether the claim fell within the "employed solicitor rule" so that its costs were recoverable. Ultimately, the court determined that the general exclusionary rule applied, and the "employed solicitor rule" (or the "well-established understanding") did not apply.

Key take-aways

• An incorporated legal practice acting for itself cannot recover costs in respect of work done by its solicitors.

• This conclusion is consistent with the general rule that self-represented litigants cannot recover costs and the court's reluctance to recognise exceptions to this rule.

Cases mentioned in this blog:

• Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 93 ALJR 1007

• United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15

• Guneser v Aitken Partners (Cross Appeal On Costs) [2020] VSC 329