Cost orders in the State Administrative Tribunal

Cost orders in the State Administrative Tribunal

The Tribunal has jurisdiction to award costs under s87(2) of the State Administrative Tribunal Act 2004 (WA) and the Guardianship and Administration Act 1990 (WA).[1]

‘The starting position is that each party bears their own costs in respect of all proceedings and no party is responsible for legal or other costs incurred by another party. However, there is a discretion to award costs in some circumstances.’[2]

In Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73] – [74]:

‘… If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable, and no reasonable person would have believed they could be successful … .

Thus the Tribunal’s discretion to award costs extends to ordering the payment of costs incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings … it will usually be necessary to show that the conduct of the party was unreasonable and unfairly caused the increased costs.’

In MHF v TF [2013] WASAT 210 an order for costs was made:

On Sunday, 14 July 2013, JF and DF collected their father from the home he shares with his spouse to take him on a regular fortnightly outing, usually to a movie or for coffee. However, following the outing, they did not return him home. No prior arrangements were made with the spouse for an extended visit of the represented person away from his home. His sons took no clothing, personal items, or medications for the represented person. One of the sons said later that they had arranged for medications to be provided by a doctor, having discussed the represented person’s medical conditions with his own general practitioner some months before. One of the sons contacted the spouse later in the afternoon and told her that the represented person would not be returned home. The spouse sought legal advice and applications were filed by her on 29 July 2013 seeking the appointment of a guardian and an administrator for the represented person. The applications were brought on urgently on 1 August 2013, the Tribunal being satisfied that exceptional circumstances existed for the shortening of the period of notice. The represented person attended the hearing with his sons, DF and JF. The applicant spouse also attended and was legally represented.’

Some of the ‘accepted circumstances,’ in in the case of PHQ and LPQ [2015] WASAT 5 were:

  1. The applicant brought and maintained applications unreasonably and for a collateral purpose.
  2. Given the seriousness of the nature of the proceedings is was appropriate to be legally represented.

At [33] of PHQ, Member C Wallace of the Tribunal stated that the SAT:

‘…is likely to consider awarding costs in guardianship and administration applications where it appears that costs were unnecessarily incurred due to the unreasonable actions of the applicant, whether those actions are in pursuing an untenable application, unnecessarily prolonging an application, initiating and pursuing an application for an improper purpose and/or generally acting in a way so as to disadvantage the proposed represented person such that they unnecessarily incur legal and other costs associated with the proceedings.’

[1] PJC and RJC [2008] WASAT 224.

[2] PHQ and LPQ [2015] WASAT 5,

2020-07-23T05:35:13+00:00 August 3rd, 2020|Uncategorized|0 Comments