In order to validly execute an enduring power of guardianship (EPG) in Western Australia, the donor must have "full legal capacity" at the time of making the EPG (Guardianship and Administration Act 1990 (WA) s 110B). As stated in RS and ANOR and DV [2011] WASAT 144 at [15], for a person to make a valid EPG appointment, he/she must understand "the nature and effect of the formal document he is signing and the nature and extent of the powers he is entrusting to his substitute decision-maker." More specifically, "A person with full legal capacity to make a valid EPG will have a clear understandi ..read more

In Nugawela v Medical Board of Australia (WA Branch) [2024] WASC 15, the Supreme Court of Western Australia considered whether a mediator presiding over a mediation in the State Administrative Tribunal (SAT) had the power to make orders giving effect to a settlement reached between the parties at the end of that mediation. The background to the case involved disciplinary proceedings brought by the Medical Board against Dr Nugawela, a medical practitioner. After an unsuccessful mediation, a further mediation was held which resulted in signed consent orders between the parties. The mediator, upo ..read more

In Shoreside Pty Ltd v Wroxton Developments Pty Ltd [2023] WADC 112, a provider of construction services sued a property developer for unpaid invoices under a consultancy agreement. Applications for security for costs were made by the defendants just weeks before the trial, despite the case having commenced over 3 years earlier. Judge Gething of the District Court of Western Australia considered the principles concerning delay in applying for security and the exercise of discretion under Corporations Act 2001 (Cth) s 1335. His Honour observed that an unexplained delay is a factor against the g ..read more

A special costs order allows a court to award legal costs above the amount that would normally be ordered under the standard costs determination. This can occur where the court considers the standard costs award to be 'inadequate' due to the unusual difficulty, complexity or importance of the matter (see s 141(3) Legal Profession Uniform Law Application Act 2022). Parties normally have 30 days from the date of judgment to apply for special costs (see Rules of Supreme Court O 66 r 51(3)). An extension of time is needed after this. In Priest v Central Norseman Gold Corporation Pty Ltd [No 2] [20 ..read more

In a costs appeal, Frigger v Computer Accounting & Tax Pty Ltd [2023] WASCA 152, the Western Australian Court of Appeal considered principles relating to applications for security for costs in detail. The case has its origins in a long-running dispute involving the winding up of Computer Accounting & Tax Pty Ltd (CAT) over a decade ago. Mr and Mrs Frigger brought a substantive claim in the original winding up proceedings against CAT's liquidator, Mr Kitay, regarding certain land assets they alleged should have been transferred to their self-managed superannuation fund. They also claime ..read more

Section 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) gives the State Administrative Tribunal (the Tribunal) a discretion to order one party to pay all or part of the legal costs of another party. This article examines the principles that apply to the exercise of that discretion, with a focus on cases involving disciplinary proceedings against legal practitioners brought by regulatory bodies such as the Legal Services and Complaints Committee. The Discretion to Award Costs The starting point is that parties ordinarily bear their own legal costs in proceedings in the Tribun ..read more

Facts The Karageozis v Sherman [2023] QCA 258 case involved an allegation of defamation based on a statement made by Ms Lamb to a police officer about the behavior of Mr Sherman after the end of their sexual relationship. The trial judge found the statement was defamatory but not protected by qualified privilege due to malice by Ms Lamb. The appeal court set aside the finding of defamation. The statement Ms Lamb made to the police officer, as outlined in paragraph 6 of the judgment, was: "Sheldon Sherman and I worked together for the same company. Sheldon worked in the Brisbane office and I wo ..read more

In the case of DH [2020] WASAT 100, the applicant PE sought directions under section 109(2)(b) of the Guardianship and Administration Act 1990 (WA) regarding an enduring power of attorney (EPA) granted to him and his wife DE by his mother DH in January 2015. DH had dementia and PE had recently begun managing her affairs. PE proposed using the EPA to advance 50% of the value of bequests made to DH's six grandchildren in her 2016 will, in order to provide the adult grandchildren early access to part of their inheritance. The issues centered on whether the attorneys could make such gifts under th ..read more

Introduction The decision of Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383 provides useful guidance on the principles applicable to establishing publication in defamation cases involving online content. Facts In Poland v Fairfax, the plaintiff Mr Poland sued the defendant Fairfax over comments posted by third parties on the defendant's Facebook page under links to two articles about the plaintiff. The comments were posted in February 2019 but Mr Poland only commenced proceedings in September 2021. Due to the 1 year limitation period, Mr Poland was confined to sui ..read more

Setting Aside Irregular Default Judgments This blog examines the principles applicable to setting aside a default judgment where the entry of default judgment was irregular. It discusses the relevant legislative provisions and procedural rules, and cites the recent decision in Cicirello v Carter [2023] WADC 130 (Cicirello) as an illustrative example. The Facts The facts in Cicirello, as outlined at [4]-[30], were that the plaintiffs commenced an action against the defendant builder seeking damages for overcharging under a 'costs plus' building contract. The defendant sought to enter an appeara ..read more