VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G86872	
CATCHWORDS	
Application for costs; section 109 Victorian Civil and Administrative Tribunal Act 1998 – presumption that each party will bear their own costs – whether a delay caused by unrepresented party is sufficient to displace presumption – protective jurisdiction – application dismissed.	

principal	BMO	
WHERE HELD	Melbourne 	
BEFORE	Senior Member B. Hoysted 	
hearing type	Hearing 	
DATE OF final hearing	16 March 2020	
date of ORDER AND written reasons	4 November 2020	
citation	BMO (Guardianship) (Costs) [2020] VCAT 1230	

Order
1	The application by the applicant that her costs be paid by the attorney is dismissed.
2	The application by the attorney that her costs be paid by the applicant is dismissed.

B. Hoysted
Senior Member			

Reasons
The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 51AJ of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Powers of Attorney Act 2014 that identifies or could lead to the identification of a party to the proceeding.

THE NATURE OF THE APPLICATION
1	In this Statement of Reasons, the following random initials are used in order to protect the anonymity of the parties:
a	BMO refers to the person who is the subject of the application;
b	ETQ is the appointed attorney under Enduring Power of Attorney (EPA) and youngest daughter of BMO; and
c	PWN is the original applicant and eldest daughter of BMO.
2	Proceedings, initiated by PWN, were conducted over four hearings concluding on 10 March 2020 in the dismissal of the applications for revocation of the EPA and the appointment of an administrator and the withdrawal of the application for the appointment of a guardian. The attorney applied for an order that the applicant pay her costs. These Reasons are limited to my consideration of the costs applicationS.
BACKGROUND
3	BMO is a widow who has, since 2017, lived in residential aged care. She and her first husband and later, their daughters, PWN and ETQ, worked together in a family business. BMO and her husband purchased several residential and commercial properties. In late 2003, BMO’s husband died and soon after the family business was sold. 
4	While they put forward different versions of the family history, PWN and ETQ agreed that for many years following, there was little contact between them and PWN was estranged from BMO. They also agreed that, for all of their lives, their mother had fragile mental health. BMO was now affected by a major neurocognitive disorder.
5	In 2015, BMO executed an EPA under which she appointed ETQ as the sole attorney.
6	In April 2019, PWN made application seeking the revocation of the EPA and the appointment of a guardian and administrator for her mother. ETQ responded by filing an application that she be appointed as guardian. PWN stated that she had become aware that BMO had been placed into residential aged care and that, with the exception of the family home which was imminently to be auctioned, the other properties owned by BMO as survivor, had been gifted to ETQ in 2006. PWN alleged ETQ had coerced BMO into gifting the properties to her and expressed concern that BMO would be left unable to afford the cost of her care. ETQ said that her mother had, when competent and with the benefit of her own legal advice and based on the breakdown of her relationship with PWN, excluded PWN from her life and estate.
THE HEARINGS
7	The first hearing was conducted in May 2019. PWN represented herself while ETQ had legal representation. By order made that day, the applicant was required to identify any transactions she considered to be in breach of the Powers of Attorney Act 2014 (POA Act) and the attorney was required to file and serve accounts and any evidence to support authorisation of any conflict transaction. In the event that the applicant intended to pursue her application, the applicant and attorney were required to file and serve particulars of their claim and defence. Other orders made required the provision of further evidence about BMO’s decision-making capacity and that the proceeds of sale of the principal’s home be held on trust.
8	On 1 July 2020, the attorney’s solicitor filed ETQ’s sworn evidence and confirmed an offer, apparently made in a telephone discussion between himself and the applicant, to meet “to explore the possibility of resolving the matter between the parties outside the VCAT process”. PWN declined that offer and advised she intended to proceed with her application, filing what she purported to be, but were not, particulars of her claim. 
9	The attorney engaged a bookkeeper who prepared a reconciliation statement to disclose and explain her actions as attorney.
10	A second directions hearing was conducted in September 2019. The applicant again represented herself. Noting the applicant’s determination to proceed, I encouraged her to seek her own legal advice and provided her a second opportunity to particularise her claim. 
11	The matter was scheduled for final hearing. Parties were invited to file and serve final submissions. Late on the day prior to the scheduled hearing, VCAT was advised that PWN had engaged a solicitor to represent her. At hearing the following morning, Ms Griffin for PWN sought an adjournment to enable her to file particulars of her client’s claim. The application was opposed by Mr Price for ETQ. With reluctance but hope that the involvement of a lawyer would see the fair resolution of the matter, I granted the adjournment.
12	At final hearing, the applicant conceded that there was no basis for a guardianship order and withdrew that part of her application. While Ms Griffin acknowledged that the transfers of BMO’s properties to ETQ were not executed by ETQ, she submitted that PWN brought the application out of concern that her mother would be left without the means to pay the cost of her care and that VCAT should appoint an independent administrator. Ms Griffin sought orders that the 2015 EPA be declared invalid due to lack of capacity or, in the alternative, that ETQ had executed undue influence over BMO. Other orders sought were that the EPA be revoked or suspended and that the attorney’s accounts be audited. The applicant sought an order that her costs be paid by the attorney.
13	Mr Price for ETQ submitted that it was not until 2016 that ETQ played any formal role in relation to BMO’s finances and it was in 2017 that the EPA was first used. The transfers of properties had been executed by BMO in 2006. Mr Price acknowledged that the attorney and principal had a shared bank account and that the attorney could be criticised for that, however, that had been instigated by the principal when competent and had been corrected following my direction given at the first hearing. Mr Price noted that the attorney had kept sufficient records to enable her bookkeeper to provide a full reconciliation of ETQ’s management of BMO’s financial affairs. The financial records had been provided to PWN and offers had been made for her to meet with ETQ’s bookkeeper to answer any questions. PWN had known since 2012 that BMO had transferred her properties to ETQ. Mr Price submitted that notwithstanding the bank account held jointly by the attorney and the principal, the attorney had complied with sections 63 and 66 of the POA Act. Mr Price submitted that there was no basis for the orders sought and that the applications should be dismissed and that the applicant be ordered to pay the attorney’s costs.
14	At the conclusion of the hearing, I dismissed the applications which had sought the suspension, revocation or declaration that the EPA was invalid as well as the that which sought the appointment of an administrator. I ordered the attorney to file with VCAT annual financial statements until 30 June 2022. Leave was granted to the applicant to withdraw her application for guardianship. The applications for costs were reserved.
THE LAW
15	VCAT’s power to award costs is set out in section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) as follows:
109	Power to award costs
(1)	Subject to this Division, each party is to bear their own costs in the proceeding.
(2)	At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3)	The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—
(a)	whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—
(i)	failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii)	failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii)	asking for an adjournment as a result of (i) or (ii)
(iv)	causing an adjournment;
(v)	attempting to deceive another party or the Tribunal;
(vi)	vexatiously conducting the proceeding;
(b)	whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c)	the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d)	the nature and complexity of the proceeding;
(e)	any other matter the Tribunal considers relevant.
The applicant’s submissions in support of costs application
16	Ms Griffin submitted that:
a	PWN was right to be concerned for BMO and it was on that basis that she made her application to VCAT, a protective Tribunal, for orders about the EPA;
b	the outcome of the proceeding, and in particular the requirement that the attorney lodge annual accounts, demonstrated that the application had merit;
c	while the application had initially not been focused, it ultimately was, and she had restrained PWN from agitating the issues around the family conflict and had confined arguments to matters relevant to the jurisdiction; and
d	the applicant should not be penalised for raising an important issue about the vulnerability and protection of BMO.
The attorney’s submissions in support of costs application.
17	Mr Price for the attorney submitted that:
a	the proceeding was drawn out because PWN had ignored VCAT’s advice that she seek legal advice and/or representation;
b	the attorney had complied with all orders and directions and had sought to resolve the matter through several genuine offers to meet with the applicant and allow her access to the bookkeeper and books;
c	the applicant had ignored or declined those offers which had caused the proceeding to be drawn out;
d	the applicant had caused at least one adjournment, that being where Ms Griffin was engaged on the eve of the third hearing; 
e	the applicant’s case lacked merit as evidenced by the outcome; and
f	the attorney should not be financially penalised when she had been a competent attorney.
Findings
PWN’s application
18	I found no basis for ordering that ETQ pay or contribute to PWN’s costs.
19	ETQ had not caused the proceedings to be prolonged. 
20	The order that ETQ lodge annual accounts was not made on the basis of a finding that the attorney had breached her obligations under the POA Act. Mr Price, for ETQ, indicated a preparedness for ETQ to provide accounts and, in circumstances where there had been some blending of funds and where there would be an application by ETQ for reimbursement, I saw annual accounting to be prudent.
ETQ’s application
21	I was not persuaded that PWN was acting vexatiously in bringing the application. While she would have benefitted from earlier legal advice, PWN was entitled to bring the application and to represent herself before VCAT. Many parties to proceedings in the Guardianship List of VCAT do represent themselves. I was not persuaded that PWN was deliberate in prolonging the proceeding. 
22	It was reasonable for PWN, when she noted the imminent sale of her mother’s remaining property, to be concerned that her mother had sufficient funds to meet her needs. The fractured relationship between PWN and ETQ meant that PWN was unlikely to approach ETQ or that ETQ would have provided the assurance that BMO retained sufficient funds. It was not unreasonable, in the circumstances which existed, for PWN to have applied to VCAT. The fact that PWN and BMO had been estranged for many years does not contradict or disprove her claim that she had been motivated to ensure her mother had funds necessary to meet her ongoing needs.
23	PWN did not seek to conceal that she was aggrieved to have been excluded from her mother’s estate. Again, that does not contradict her claim to have been concerned for BMO.
24	I accept that ETQ had complied with orders made and, further, had offered to try and resolve the proceeding.
25	I find that the adjournment of the third hearing resulted from PWN’s late engagement of a lawyer. I accept also that the engagement of Ms Griffin resulted in the final hearing being more contained.
26	The fact that the application, in the main, was dismissed does not persuade me that PWN was not entitled to bring her application. 
27	The general presumption that each party to proceedings before VCAT is well known. That presumption and the ability to self-represent means that VCAT is accessible to everyone and not restricted to those who can afford to engage lawyers. This is as it should be, especially where the proceedings relate to a person who has lost their capacity to protect themselves. 
28	While, in part, PWN’s application was misguided, I was not satisfied that the application was vexatious or that the conduct of the applicant was such as to rebut the presumption that each party bear their own costs. 
29	For these reasons, I make the following order:
a	the application by the applicant that her costs be paid by the attorney is dismissed; and
b	the application by the attorney that her costs be paid by the applicant is dismissed.

B. Hoysted
Senior Member