Role of Public Advocate at guardianship hearings

The Public Advocate of Western Australia has an important role when it comes to attending and preparing reports for guardianship hearings.

The Public Advocate has a wide range of powers and functions, including investigating complaints about guardianship arrangements, providing advice to the Minister for Disability Services on guardianship matters, and promoting awareness of guardianship issues.

The Office of the Public Advocate also provides support and advice to guardians and interested persons on guardianship matters.

Often, the State Administrative Tribunal of Western Australia will make an order for the Public Advocate to do an investigation and prepare a report in advance of a guardianship hearing.

Typically, the specific orders made by the Tribunal include:

• The application is referred to the Public Advocate pursuant to s 97(1) of the Guardianship and Administration Act 1990 (WA) for investigation and report to the Tribunal prior to the hearing on the following: (a) whether the proposed represented person is in need of an administrator; (b) if an administration order is to be made, who would be suitable and willing to be appointed; (c) what are the views and wishes of the proposed represented person regarding the issues arising in this proceeding; and (d) all other matters the Public Advocate considers relevant.

• The Public Advocate is requested to attend the hearing to advance the best interests of the proposed represented person.

• The Tribunal will provide to the Public Advocate a copy of all documents received by the Tribunal for the purposes of this proceeding.

• The Public Advocate is at liberty to apply pursuant to s 35 of the State Administrative Tribunal Act 2004 (WA) for orders for the production of documents relevant to her investigation.

• The Public Advocate is at liberty to apply for the hearing to be brought forward to an earlier date should this be considered necessary in the best interests of the proposed represented person.

On behalf of my clients, when this occurs, I liaise with staff at the Office of the Public Advocate in the lead-up to the hearing.

Yemini v Twitter International Co

The Federal Court of Australia has handed down a useful and important ruling in the case of Yemini v Twitter International Company.

The written reasons are short, but are likely to have a long-lasting impact on running defamation cases against social media platforms.

Avraham Yemini is an Australian-based journalist for the Canadian news and opinion website, Rebel News.

He filed an originating application seeking an order under r 7.22 of the Federal Court Rules 2011 (Cth) for preliminary discovery by Twitter International Company and Twitter Inc, the corporate entities through which the American microblogging and social networking service ‘Twitter’ is principally operated.

Mr Yemini sought production of documents that would help him identify an anonymous person or persons who published allegedly defamatory content about Mr Yemini on the Twitter platform, so that he could then commence proceedings against that person or persons.

The Twitter handle was @PRGuy17.

The evidence supporting Mr Yemini’s application set out the bases on which he believed that one or both of the Twitter entities had information about the identity of the anonymous Twitter user and the attempts Mr Yemini had made to identify the anonymous user to date.

The application for preliminary discovery, under r 7.22 of the Rules, was based on a cause of action in defamation.

An application for preliminary discovery under r 7.22 of the Rules is a proceeding in which the Federal Court of Australia has jurisdiction.

On the basis of the affidavit filed in support of the application for preliminary discovery, the Judge was satisfied Mr Yemini had a prima facie case for the production of the documents he sought.

An order granting leave for Mr Yemini to effect service on the prospective respondents via international registered post was made.

Fairfax Media Publications Pty Ltd v Voller

Fairfax Media Publications Pty Ltd v Voller was a case decided by the High Court in 2021.

The case concerned whether or not a newspaper publisher could be liable for defamation where the article complained of was published on an online platform that was later taken down.

The court held that, where an article is published on an online platform and then taken down, the publisher may still be liable for defamation if it can be shown that they knew or ought to have known that the article would be accessible to readers in Australia.

This is because, even though the article is no longer available on the original platform, it may still be accessible to readers through other means (e.g. through search engines).

This decision has important implications for media organisations that publish content online, as it means that they need to be careful about what they publish and take prompt action to remove anything that could be defamatory.

It also highlights the importance of ensuring that articles are not published on platforms where they can be easily copied and distributed (e.g. social media).

This case serves as a reminder that defamation law still applies to content published online, even if it is later taken down. Media organisations need to be aware of this and take care to avoid publishing anything that could be defamatory.

Malice and qualified privilege

Malice defeats the defence of qualified privilege in Australia. If a person can prove a defendant acted without malice, then they will be protected from defamation proceedings.

The law of qualified privilege in Australia is designed to protect people who make statements about others in certain situations.

This may include situations where the person making the statement is required to do so by their job, or where the statement is made in order to protect the interests of another person.

In order for the defence of statutory qualified privilege to apply, the Uniform Defamation Acts provide that the following elements must be present:

• the recipient has an interest or apparent interest in having information on some subject;

• the matter is published to the recipient in the course of giving him or her information on that subject;

• the conduct of the defendant in publishing the material in question is reasonable in the circumstances.

However, common law qualified privilege is more commonly relied on than the statutory defence in Australia. It is the most common defence in Australia in defamation.

At common law, a publication is made on a privileged occasion if:

• it is made without malice;

• it is made by a person in discharge of some public or private duty, whether legal, social or moral or for the purpose of protecting some private interest;

• it is made to a person who has a corresponding interest in receiving the communication. 

If these elements are present, then the person making the statement will likely be protected from defamation proceedings.

Qualified privilege is not an absolute defence, however, and there are some situations where it may not apply.

For example, if the person making the statement knows that it is false, or if the statement is made with the intention of causing harm to the person it is about, then qualified privilege may not apply.

Qualified privilege is a complex area of law, and it is always advisable to seek legal advice before making any statements about others that could potentially be defamatory.

Guardianship in Western Australia

As people age, they may need help with their finances, medical care, and everyday decision-making. In some cases, elderly people may be unable to take care of themselves at all. When this happens, guardianship can provide much-needed assistance and protection.

In Western Australia, the Guardianship and Administration Act 1990 sets out the legal framework for guardianship. The Act provides for the appointment of a guardian to make decisions on behalf of a person who is unable to make decisions for themselves.

A guardian can be appointed by the State Administrative Tribunal of Western Australia. The guardian must act in the best interests of the person they are looking after.

The types of decisions that a guardian can make include decisions about:

- where the person will live

- what medical treatment the person will receive

- what education or training the person will receive

- what work the person will do

- what leisure activities the person will take part in.

Additionally, an administrator (which is different to a guardian) can make financial decisions on behalf of the person. This may include deciding how the person's money will be spent, and managing their bank accounts and other assets.

The role of a guardian includes to protect their rights and interests.

Guardianship can be interim or permanent, depending on the needs of the person involved.

If you are concerned about an elderly person who may be unable to take care of themselves, you can apply for a guardianship order. You will need to provide evidence to the court that the person is unable to make decisions for themselves and that they would benefit from having a guardian.

The court will appoint a guardian after considering all of the relevant factors, including the views of the person involved.

If you are concerned about someone who you think may need a guardian, I can help by providing legal advice.

I have considerable experience in applying for and managing guardianship orders, and can help you navigate the process. Please contact me to discuss your situation.

Successful application to strike out Defence and Counterclaim: Phillip Skelton & Wanda Meyer as Trustee for P Skelton Superannuation Fund No 1 v Leroy Nominees Pty Ltd [2020] WADC 88

Isaac Priddis appeared for my clients, the Plaintiffs, in Phillip Skelton & Wanda Meyer as Trustee for P Skelton Superannuation Fund No 1 v Leroy Nominees Pty Ltd [2020] WADC 88.

Basic Facts Summary

This case was as a ‘debt recovery’ matter, with the Plaintiffs’ claims arising from 2 separate loan agreements in 2015 & 2016.

The Plaintiffs were seeking to recover an amount of $420,000.

This was an interlocutory decision.

You can read the decision here.

We applied to strike out the amended defence and counterclaim, filed by the Defendants.

Such applications are called ‘strike-out applications’.

Striking out pleadings

The Rules of the Supreme Court 1971 (WA), in Order 20 r 19(1), provide that the Court may at any stage of proceedings strike out any pleading or anything in the pleading on the ground that:

a) it discloses no reasonable cause of action or defence;

b) it is scandalous, frivolous or vexatious;

c) it may prejudice, embarrass or delay the fair trial of the action; or

d) it is otherwise an abuse of the process of the Court.

We submitted that the defence and counterclaim should struck out because they disclosed no reasonable cause of action, were embarrassing and might delay a fair trial of the action.

Outcome

The court found a number of problems in the amended defence and counterclaim.

Firstly, there were found to be numerous pages in the Defendant’s pleadings which contained what could generously be described as evidence.

This evidence included an annual trial balance of the Defendant company, as well as various claims and declarations made in the taxation returns of parties.

Secondly, the counterclaim was found to be wholly unsustainable.

Due to these findings amongst a number of other errors, the whole of the counterclaim was struck out, with Deputy Registrar Hewett stating the following at [13]:

“My overall conclusion is that the whole of the counterclaim should be struck out not because it is necessarily wholly unsustainable but because it is riddled with various problems, has already been amended once and would be far more useful to commence with a clean sheet setting out the counterclaim in better detail.”

An Australian first costs decision: Security for costs knocked back in setting-aside application

I acted for the Plaintiff in Steven Pugh Investments Pty Ltd v Mossensons Pty Ltd [2020] WASC 225. The decision is here.

The overall case involved my client seeking to set aside a costs agreement he signed with a previous Law Practice.

This particular decision was about the Defendant Law Practice’s application for security for costs.

This was a novel application in Australian legal history.

There were no previous published decisions where a Law Practice opposing a setting-aside application had applied for security for costs.

What is a Security for Costs application?

In litigation, the purpose of an order for security for costs is to protect a defendant or respondent in whose favour the court has made an order for costs from having that order wholly frustrated by the inability of the plaintiff or appellant to satisfy it. [1]

In the context of a setting-aside of costs agreement application, the Law Practice submitted that the Court should order its former client (the Plaintiff) to provide security in the form of a payment of money into Court as a pre-condition for the application being progressed to a final hearing.

Public Interest

Master Sanderson, relied on the case of Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57, in which Edelman J pointed to ‘public interest’ as a factor in deciding whether to exercise the court’s discretion in cases such as these.

Master Sanderson ruled that there could be no doubt that when a party seeks to set aside a costs agreement with a solicitor, it is in the public interest that the application ought to be heard.

Application of the Legal Profession Act

I relied on the Legal Profession Act 2008 (WA) in order to bring the setting aside application.

Section 260 of the Act details what disclosures of costs must be made to clients, and section 262 dictates how and when disclosure must be made.

If these sections are not complied with, then a client may apply under section 288 for the costs agreement to be set aside.

Decision

The Supreme Court dismissed the application for security of costs.

Master Sanderson stated that an order shutting out a client from attempting to establish a failure of statutory/legal obligations in a client/solicitor relationship ran contrary to the public interest and as such should not be allowed.

[1] Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248  at 255 per Hill J, Fed C of A; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 ; BC200105623 at [52] per Einstein J; Talwar v Sharma [2018] FCCA 483 ; BC201802738 at [6] per Judge Obradovic.

Costs awarded in SAT guardianship application in favour of my clients

My clients were awarded costs in a guardianship application. The costs were payable to them by the Applicant (who was a family member they were opposed to in the application).

This was rare.

Costs are rarely awarded in guardianship anyway. When they are awarded, it is more common for costs to come from the estate of the Represented Person, rather than from a family member who you are opposed to in the application.

The decision is here.

The main proceedings

The substantive application was for a review of a guardianship order previously made by the SAT, as well as an application for the appointment of an Administrator of the Represented Person’s estate.

The Tribunal refused to grant the applications.

My clients made an application for their costs incurred in responding to the proceedings.

Application for an extension of time

The Applicant objected to my client’s application at first instance as it was made more than 21 days (24 days) after the orders to which the application related.

Rule 42A of the SAT Rules prescribes the 21-day requirement.

In my submissions, however, I drew the Member’s attention to the operation of rule 46 of the SAT Rules.

Rule 46 relevantly provides that the SAT retains a discretion to waive non-compliance with requirements arising under the rules.

This, read in tandem with the objectives set out under s 9 of the SAT Act, as well as the relatively minor delay and the existence of extenuating circumstances, meant the Tribunal granted an extension of time. Only a few days extension was required.

Costs applications generally in SAT

Section 87 (1) of the SAT Act provides that parties ordinarily bear their own costs, subject to an order of the Tribunal to the contrary.

Section 16 of the Guardianship and Administration Act (GA Act) deals with costs in relation to proceedings commenced under the GA Act. Section 16 (5) of the GA Act provides that nothing in the GA Act limits any power exercisable by the SAT under the SAT Act.

Consequently, the SAT retains considerable discretion in the determination of whether costs ought to be paid, conferred by s 87 (2) of the SAT Act.

The key issue in the application was whether the proceedings were commenced or continued unreasonably.

In the Tribunal’s reasons it was noted that there were plain deficiencies in the Applicant’s case.

The Tribunal at [54] affirmed the position that a weak case alone is not sufficient to warrant an adverse costs order.

However, the Member pointed out a variety of circumstances, raised in my client’s submissions, that enlivened the Tribunal’s discretion to award costs pursuant to s 87 (2) of the SAT Act.

Delay, Irrelevance and Improper Purpose

Prior to the substantive review hearing, the Applicant was late in providing its material to the Tribunal.

At the hearing it was clear to the Member that the Applicant had potentially misconceived the nature and purpose of the proceedings.

The Applicant focused heavily on scrutinising a report of a delegate of the Public Advocate and cross-examining my client on issues irrelevant to the dispute.

The delay ultimately led to a prolongment of the matter as the Tribunal did not have time to hear from the other parties and required written submissions to be filed as a result of running out of time.

At [50] – [51] the Tribunal referred to the potential that the review application was brought for an improper purpose to influence the discretion of the Public Advocate. Additionally, the Tribunal in its reasons pointed out that the Applicant and its Counsel were advised at the original directions hearing as to the role SAT plays in relation to the dispute before it.

Therefore, the delay and conduct of the Applicant following such directions from the Tribunal (in pressing ahead with its scrutiny of the Public Advocate’s report and its cross-examination of my client), was considered to be unreasonable conduct.

For the above reasons, the Tribunal awarded costs to my clients in the sum of $7,000.

Grieving parents who were defamed in emails, awarded $60K damages plus costs

I acted for Matthew and Lyndal Trott at this defamation trial.

I was Trial Counsel, together with Junior Counsel, Isaac Priddis.

The facts were tragic.

My clients’ Son, Samuel Trott, drowned in a lake near his home.

Matthew and Lyndal, were neighbours of the defendant, Ms Ansuya Rajoo.

The relationship with her broke down about 4 years after Sam died.

Sam was a toddler, who had autism.

He had wandered from the family home after a tradesperson left the front door open.

His body was found after an extensive search by community members at the lake about 600 metres away.

The coroner concluded that his death was an accident. 4 years later, the neighbour sent emails to the local police inspector and the principal of the school of the surviving siblings with a number of defamatory imputations.

These included that my clients had conspired to kill their son by conditioning him to jump into the backyard pool with a life jacket on. She said this gave him a false sense of security so that he jumped into the lake and drowned.

In assessing damages, the District Court of Western Australia found that although there was a limited extent of publication and no impact on their professional reputations, there could be no more serious an allegation than the imputation that parents murdered an infant son with autism. The emails attacked them “in the worst possible way as parents”. The impact of the allegation was significant and devastating. Their hurt in grieving their son’s death was exacerbated, being forced to relive it. They felt fear for their surviving children. They felt they needed to move house to get away from the neighbour.

Their good reputation as parents and community members was unchallenged and presumed.

The defendant made no apology. She had acted with malice. Aggravated damages were awarded and indemnity costs orders made.

You can read the decision here.

Here is a media article about the case.

Appeal from the Magistrates Court of WA

I appeared for the Appellant in Chapple v Dulux Group (Australia) Pty Ltd [2022] WADC 73. The decision is here.

The case involved an Appeal from a Minor Case in the Magistrates Court of Western Australia.

The case related (amongst other things) to the Appellant’s allegation that the Respondent failed to provide goods (paint coating and render) in accordance with the description offered by the Respondent.

Magistrates Court Proceedings

At trial, both the Appellant and Respondent adduced expert evidence and tendered expert reports in support of their respective cases. The Magistrate made a finding that the expert witness called by the Appellant did not possess the relevant expertise to give opinion evidence at trial.

The Magistrate dismissed the Appellant’s claim, brought under the Australian Consumer Law, and awarded costs in favour of the Respondent.

Appeal

The Notice of Appeal alleged on three separate grounds that the Magistrate had denied him natural justice.

The decision of Commissioner Collins of the District Court of Western Australia highlights several crucial features of the Magistrates Court as compared to other jurisdictions.

Minor Cases 

Part 4 of the Magistrates Court (Civil Proceedings) Act 2004 (MCCP Act) relates to Minor Cases, defined under s 26 of the MCCP Act.

There are limited grounds upon which an appeal can be brought in relation to the decision of a Magistrate in a Minor Case. Relevantly here, s 32 (3) (b) permits an appeal on the ground of a denial of natural justice.

 Each ground of appeal relied upon in the Appellant’s case asserted a denial of natural justice.

Costs in the Magistrates Court

The Magistrates Court is typically a “no costs jurisdiction”.

However, s 31 (3) of the MCCP Act allows a successful party to claim costs other than “allowable costs” if the Court is satisfied that there are “exceptional circumstances” that would create an injustice if costs were not awarded to the successful party.

The Magistrate delivered brief reasons for the award of costs (see at pages 44 and 45 of the decision).

Decision

The District Court allowed the Appeal (in part) and set aside the costs order made by the Magistrate in favour of the Respondent.

The Court, after considering thoroughly the law on natural justice, ultimately agreed with my submission that the learned Magistrate, in awarding costs, failed to disclose adequate reasons in relation to the existence of “exceptional circumstances” as required by s 31 (3) of the MCCP Act.

The case highlights the importance of decision makers providing adequate reasons for their decisions.

Additionally, the Court highlighted the necessity of a thorough consideration of the legislative context of a decision and the relevant jurisdiction, when determining the content of the duty of natural justice that applies in any given case.

Crucial here, was the overriding objects of the Magistrates Court as a court of summary jurisdiction and the explicit requirements for “exceptional circumstances” in the legislation before an adverse costs order can be made.

For these reasons, the Court held that the Magistrate was required to identify the relevant facts upon which the decision was based and allowed the Appeal on this point.