Understanding Guardianship and Administration Matters: When does the Need for Oversight Enable the Appointment of a Guardian in Western Australia?

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

The Act provides for the appointment of guardians and administrators for persons who lack the capacity to make decisions in their personal and financial affairs.

In this blog post, I discuss the role of oversight in guardianship and administration matters and explore the circumstances under which the State Administrative Tribunal of Western Australia (the Tribunal) can appoint a guardian based on the need for oversight.

I examine the recent decision of IZ [2022] WASAT 85 to illustrate how the Tribunal interprets and applies the relevant provisions of the Act in this context.

Legislative Framework

The Act sets out the criteria for appointing a guardian for a person who lacks the capacity to make decisions in relation to their personal affairs.

Section 43(1)(b) of the Act states that the Tribunal may make a guardianship order if it is satisfied that the person:

(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; and

(iii) is in need of oversight, care, or control in the interests of their health and safety.

The Act also establishes a presumption of capacity, as set out in section 4(3)(c), which states that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Need for Oversight

In the IZ [2022] WASAT 85 decision, the Tribunal considered the role of oversight in guardianship matters and the extent to which the need for oversight, care, or control could justify the appointment of a guardian.

The Tribunal emphasised that the presumption of capacity must be upheld unless clear and cogent evidence to the contrary is presented.

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Tribunal, however, did not find sufficient evidence to rebut the presumption of capacity.

It concluded that while there was a reasonable concern for IZ's health and safety, there was no clear evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal observed that individuals with the capacity to make decisions regarding their personal and financial affairs are entitled to make decisions that others may regard as unreasonable or unwise, as long as they do not pose a risk to themselves or others (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal also noted that the need for oversight, care, or control should be read in conjunction with the other limbs of section 43(1)(b) and considered as a global assessment of the person's capacity (referencing GG [2021] WASAT 33 at [60(a)-(c)]).

The Tribunal held that the need for oversight, care, or control is directed towards a person's functional incapacity, rather than the cause of the person's need for assistance (referencing GG at [60(i)]).

The Presumption of Capacity in Guardianship and Administration Matters: Does Objectively Unwise Decision-Making Rebut the Presumption in Western Australia?

The Guardianship and Administration Act 1990 (the Act) governs the appointment of guardians and administrators for individuals who lack the capacity to make decisions regarding their personal and financial affairs in Western Australia.

One of the key principles in guardianship and administration matters is the presumption of capacity, which assumes that an individual is capable of managing their own affairs until proven otherwise.

In this blog post, I discuss the extent to which objectively unwise or less preferable decision-making can rebut the presumption of capacity in a guardianship and administration matter before the State Administrative Tribunal of Western Australia (the Tribunal).

I refer to the decision of IZ [2022] WASAT 85 to illustrate how the Tribunal approaches this issue and applies the relevant provisions of the Act.

Legislative Framework

The Act sets out the criteria for appointing a guardian or an administrator for a person who lacks the capacity to make decisions in relation to their personal or financial affairs. Section 4(3)(c) of the Act establishes the presumption of capacity, stating that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Presumption of Capacity and Objectively Unwise Decision-Making

In the IZ [2022] WASAT 85 decision, the Tribunal examined the relationship between the presumption of capacity and objectively unwise decision-making by the subject of a guardianship application.

The Tribunal emphasized that people with capacity are entitled to make decisions that others may regard as unreasonable or unwise (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Department argued that IZ's lack of insight into the reason for her admission and her desire to return to live with her parents were evidence of her incapacity to make reasonable judgments.

However, the Tribunal held that, although there was a reasonable concern for IZ's health and safety, there was no clear and cogent evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal found that IZ was actively managing her own affairs and dismissed the guardianship application.

The Tribunal in IZ cited the observation made in MH, stating that the judgment on whether a person is incapable of looking after their health and safety or unable to make reasonable judgments in respect of matters relating to their person does not depend on whether the Tribunal agrees or disagrees with the person's decisions (referencing MH at [120]).

Key Take-Aways

• The decision in IZ [2022] WASAT 85 demonstrates that objectively unwise or less preferable decision-making by the subject of a guardianship application does not automatically rebut the presumption of capacity in Western Australia.

• The Tribunal emphasizes the importance of upholding the presumption of capacity unless clear and cogent evidence to the contrary is presented.

• This approach reflects the respect for individual autonomy and the right to make one's own decisions, even if those decisions may be considered unwise or less preferable by others.

Understanding Joint Guardianship and Administration Appointments in Western Australia: A Case Study

Guardianship and administration matters in the State Administrative Tribunal of Western Australia (SAT) often involve complex family dynamics and legal considerations.

One question that often arises is when joint guardians and administrators should be appointed.

In this blog post, I discuss the factors that the SAT takes into account when making such decisions, with reference to the Guardianship and Administration Act 1990 (WA) (GA Act) and the recent case of LM [2023] WASAT 15.

Criteria for Appointment of Guardians and Administrators

The GA Act sets out the criteria for appointing guardians and administrators.

Section 44 deals with the appointment of guardians, while section 68 focuses on the appointment of administrators.

In the case of LM [2023] WASAT 15, various family members expressed their willingness to be appointed, either individually or jointly, as LM's guardian and administrator.

The Tribunal, however, had to consider the best interests of the represented person and the suitability of the proposed appointees before making a decision.

Joint Appointments: Pros and Cons

Joint appointments may seem like a fair solution in some situations, especially when multiple family members are willing to take on the responsibility. However, the SAT is cautious when considering joint appointments for both guardians and administrators.

For administrators, joint appointments can pose practical difficulties, particularly regarding banking arrangements and the management of online accounts.

As for joint guardianship, the SAT may consider it only when there is a reasonable expectation that the guardians will be able to work together and reach unanimous decisions for the represented person.

Family Dynamics and Suitability

In LM [2023] WASAT 15, the Tribunal paid close attention to the family dynamics and the ability of the proposed appointees to work together (para. 65). The decision highlighted that joint decision-making may not be successful in situations where family relationships are strained or conflicted.

The Tribunal emphasized the importance of weighing the potential risks and benefits of joint appointments against the backdrop of complex family situations.

Moreover, the Tribunal took into account the potential conflicts of interest that could arise from the appointment of certain family members. In LM [2023] WASAT 15, it was determined that one of the proposed appointees, SC, had a conflict of interest due to his personal interest in his daughters' financial well-being and his duty as an administrator to act in LM's best interests (para. 66). This conflict of interest contributed to the Tribunal's finding that SC was unsuitable for appointment.

In addition to conflicts of interest, the Tribunal also considered the experience and expertise of the proposed appointees. In LM's case (para. 70), the Tribunal noted that her estate involved some complexity, and it was in her best interests for the appointed administrator to have the necessary knowledge and ability to manage her estate effectively.

Ultimately, the Tribunal's analysis of the family dynamics and the suitability of the proposed appointees led to the conclusion that none of the family members who volunteered as guardians or administrators were appropriate for appointment (para. 69).

This unsuitability precluded their sole or joint appointment, prompting the Tribunal to consider alternative options such as the appointment of the Public Advocate and Public Trustee (para. 71).

Public Advocate and Public Trustee Appointments

In cases where no suitable and willing person is available for appointment, the GA Act (section 44(5)) provides that the Public Advocate should be appointed as the guardian.

Similarly, when it is in the best interests of the represented person, the Public Trustee may be appointed as the plenary administrator.

In LM [2023] WASAT 15, the Tribunal concluded that the Public Advocate should be appointed as LM's limited guardian and the Public Trustee as LM's plenary administrator.

These appointments ensured that the guardian and administrator possessed the necessary expertise and ability to make decisions for LM in the foreseeable future.

Key Take-Aways

• Joint appointments of guardians and administrators may seem like a practical solution in some cases.

• However, the SAT carefully considers the best interests of the represented person, the family dynamics, and the suitability of the proposed appointees when making such decisions.

• The case of LM [2023] WASAT 15 serves as a valuable reference for understanding when joint appointments may or may not be appropriate in guardianship and administration matters in Western Australia.

Determining Factors in a s16(4) Costs Application in a Guardianship and Administration Matter in Western Australia

In this blog post, I explore the factors to be considered in determining a s16(4) costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia.

This discussion will rely on the case of Y and CO [2020] WASAT 166 and relevant legislation, including the Guardianship and Administration Act 1990 (WA) (the GA Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act).

1. The Tribunal's Power to Make Costs Orders

Section 16(4) of the GA Act grants the State Administrative Tribunal the power to order that costs be paid by, or out of the assets of, a represented person if it is satisfied that a party to the proceedings has acted in the best interests of the represented person or the person in respect of whom an application is made [1][21].

The principle in s 87(1) of the SAT Act states that parties usually bear their own costs in a proceeding of the Tribunal [22].

2. Factors to Consider

In determining whether to exercise its discretion to order a represented person to pay another party's legal costs, the Tribunal may consider several factors outlined in Re WA and IA, Ex Parte AA and JA [2011] WASAT 33 [32][59-60].

These factors include:

• Whether the application would have been made without the applicant seeking legal advice;

• The presence of serious allegations of abuse, requiring legal advice and representation;

• Conflict between significant parties that may prevent them from presenting a coherent case without legal assistance;

• The complexity of the application requiring legal advice and representation;

• Whether the application is contentious and unique;

• Whether the application raises a special point of law.

It is important to note that awards of costs pursuant to s 16(4) of the GA Act are not common [60].

3. Acting in the Best Interests of the Represented Person

Section 16(4) of the GA Act conditions the positive exercise of the Tribunal's discretion on being satisfied that the person seeking costs has acted in the best interests of the represented person [33].

However, more than merely acting in the best interests of the person is required to succeed in a costs order under s 16(4) [37].

4. The Amount of Costs Awarded

The amount of costs that may be awarded should be such costs relative to those proceedings as the Tribunal sees fit. The award is not referable solely to the costs incurred by that party [33].

5. The Tribunal's Wide Discretion

The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs, but it should not be read independently of the costs regime in the SAT Act and the starting position that parties bear their own costs [36].

6. Relevant Case: Y and CO [2020] WASAT 166

In the case of Y and CO [2020] WASAT 166, the Tribunal made a costs order of $5,000 under s 16(4) [59].

The reasons for this finding include the applicant (Y) acting in the best interests of the represented person (CO), and that it was unlikely the application, which ultimately benefitted CO, would have been made without legal advice sought by Y [41][46].

Key Take-Aways

• Determining factors in a s16(4) costs application in a guardianship and administration matter in Western Australia involves a careful consideration of various factors and circumstances.

• The Tribunal has a wide discretion to award costs but must be satisfied that the person seeking costs has acted in the best interests of the represented person, among other considerations.

Factors to be considered in determining costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia (other than pursuant to s 16(4))

When it comes to costs applications in guardianship and administration matters before the State Administrative Tribunal of Western Australia (SAT), other than pursuant to s 16(4) of the Act, there are various factors to consider.

In this blog post, I discuss these factors, referencing the decision MD [2022] WASAT 45 and relevant legislation, to provide an overview of the key principles and considerations in determining costs applications in such matters.

Starting Point: Parties Bear Their Own Costs

As a starting point, s 87(1) of the SAT Act sets the principle that parties typically bear their own costs in a proceeding of the Tribunal.

This principle was affirmed in RK [2020] WASAT 53 (S) (RK), where the Full Tribunal found that the parties to guardianship and administration proceedings should bear their own costs [10].

Discretion to Award Costs

However, the Tribunal does have discretion to award costs in any proceeding, except as otherwise provided in an enabling Act [11].

This includes the power to order a party to pay the costs of another party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding [12].

In exercising this discretion, the Tribunal must consider all of the circumstances of the particular case and whether it is fair and reasonable for one party to bear the costs of another [14][15].

Key Considerations

Some of the key considerations guiding the Tribunal's assessment include whether:

1. A party has conducted itself in a way that unnecessarily prolongs 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. This includes 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 [16].

2. Costs have been incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings (where the conduct of the party was unreasonable and unfairly caused the increased costs) [16].

Vexatious Proceedings

In the decision of MD [2022] WASAT 45, the term 'vexatiously' was defined under s 3 and s 4 of the SAT Act, with reference to the definition in the Vexatious Proceedings Restriction Act 2002 (WA) under s 3.

Vexatious proceedings are those that are an abuse of the process of a court or a tribunal, instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose, or conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose [26].

Section 88(2) of the SAT Act and Costs

While s 88(2) of the SAT Act empowers the Tribunal to order that all or any of the costs of a proceeding be paid by a party, s 88(1) defines 'costs of a proceeding' for this section as those 'other than the costs of a party,' excluding the legal costs sought by a party in a proceeding [28].

Section 87(3) of the SAT Act and Costs

The Tribunal does have the power to order payment of costs by a party under s 87(3) of the SAT Act 'to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding' [29].

However, as noted in Blaskiewicz, discussing Questdale, the legal rationale for ordering costs is not to punish the person against whom the order is made [17].

Key Take-Aways

• In summary, while the general principle in the SAT Act is that parties bear their own costs in guardianship and administration proceedings, the Tribunal does have discretion to award costs in specific circumstances.

• Key factors to consider when determining costs applications include the conduct of the parties, the reasonableness of their actions, and whether the proceedings were vexatious.

• The Tribunal will carefully examine each case, considering all relevant factors, and determine whether it is fair and reasonable for one party to bear the costs of another.

The Importance of Fair and Reasonable Legal Fees: Understanding Overcharging and its Consequences

Overcharging clients is a topic that has been repeatedly scrutinised in the legal profession.

It not only damages the reputation of individual practitioners but also erodes public trust in the profession as a whole.

This blog post provides a general understanding of the issue of overcharging, drawing on extracts from 3 Western Australian State Administrative Tribunal decisions: Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105, Legal Profession Complaints Committee and Park [2017] WASAT 89, and Legal Profession Complaints Commitee and Penn [2015] WASAT 145.

The Vulnerability of Clients

One of the main reasons courts and disciplinary tribunals take a serious view on overcharging is the inherent power imbalance between lawyers and their clients (Veghelyi v The Law Society of New South Wales).

Clients are often in a vulnerable position when making decisions, as they may not know what work needs to be done or what charges are fair and reasonable.

Lawyers, on the other hand, are in a position of advantage, as they can inform themselves of the necessary work and appropriate charges.

This power imbalance and the trust clients place in their solicitors can lead to the misuse of such advantage and potentially result in adverse findings against lawyers by regulatory bodies and tribunals.

The Consequences of Overcharging

Overcharging can lead to significant consequences for legal practitioners, including suspension or striking off from the profession. In the O'Halloran case, the Tribunal found that the practitioner engaged in a course of conduct of grossly overcharging clients over a period of approximately six years. This conduct was considered to demonstrate that the practitioner was not a fit and proper person to remain a member of the profession.

In the Park case, the Tribunal considered overcharging by 15% to 20% of the proper costs of the criminal proceedings to be very serious.

In the Penn case, the Tribunal examined a situation where the practitioner was alleged to have overcharged their client by a significant margin. The initial amount charged to the client for obtaining a grant of probate, administration of the estate, and representation in various proceedings was $69,028.89. However, after an assessment of the work done, it was determined that a reasonable sum of costs for a competent and diligent practitioner should have been $28,959.80.

Although the practitioner argued that the assessment conducted by the Costs Consultant called by the Legal Profession Complaints Committee as an expert witness (Mr. Forbes) was incomplete, and failed to take into account the entire scope of work performed, the Tribunal ultimately accepted Mr. Forbes' evidence as to the appropriate charge.

The practitioner eventually conceded to a revised figure of $51,363.28, which still represented a significant overcharging of $17,665.61 or 25.6%.

The Tribunal found this level of overcharging to be excessive and agreed with the Committee's submission that such misconduct warranted disciplinary action.

The Penn case highlights the importance of transparency and fairness in legal billing, as well as the consequences practitioners may face for overcharging their clients, even when the practitioner disputes the extent of the overcharging.

Key Take-Aways

• The issue of overcharging in the legal profession is a serious matter that not only affects the reputation of individual practitioners but also the profession as a whole.

• Clients are often in a vulnerable position, and the trust they place in their lawyers should not be abused.

• Legal practitioners have a responsibility to ensure they charge their clients fairly and reasonably, and those who fail to do so may face severe consequences, including disciplinary action and damage to their professional reputation.

The Importance of a Concerns Notice under the Uniform Defamation Laws in Australia

The Uniform Defamation Laws in Australia require an aggrieved person to provide a concerns notice before commencing defamation proceedings.

A recent case, Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FEDCFAMC2G 323, highlights the significance of this requirement.

In this blog post, I discuss the mandatory nature of a concerns notice under the Uniform Defamation Laws and the implications of not adhering to this requirement.

The Uniform Defamation Laws

Defamation laws in Australia were historically inconsistent across different states and territories. However, the introduction of the Uniform Defamation Laws (these particular amendments yet to apply in WA) sought to harmonise these laws across the country, recognising the need for consistency in an era where publications can be disseminated instantaneously throughout Australia. The Uniform Defamation Laws introduced several key amendments to defamation law, including the requirement of a concerns notice before commencing defamation proceedings.

Mandatory Nature of a Concerns Notice

Section 12B(1) of the South Australian Defamation Act (DA) mandates that an aggrieved person cannot commence defamation proceedings unless they have provided a concerns notice to the proposed defendant. The concerns notice must specify the alleged defamatory imputations, the serious harm caused, and include a copy of the allegedly defamatory material.

In Hooper v Catholic Family Services, the court found that the plaintiff failed to comply with the mandatory provisions of the DA concerning the provision of a concerns notice, resulting in the summary dismissal of the defamation aspects of her claim.

Imperative vs. Directory Provisions

The High Court in Clayton v Heffron distinguished between imperative (mandatory) and directory provisions in the context of statutory requirements. Imperative provisions require strict compliance, with non-compliance rendering the resulting action null and void, while directory provisions do not have such fatal consequences, although substantial compliance is still necessary.

The court in Hooper v Catholic Family Services agreed with Gibson DCJ's view in Teh v Woodworth that section 12B(1) of the DA is an imperative provision, emphasizing the use of the word "cannot" in the provision.

Consequences of Non-Compliance with the Concerns Notice Requirement

Failure to comply with the concerns notice requirement can result in the dismissal of the defamation aspects of a claim, as demonstrated in Hooper v Catholic Family Services. The court in M1 v R1 also held that leave could not be granted to retrospectively validate defective concerns notices under the Uniform Defamation Laws.

Key Take-Aways

• The Hooper v Catholic Family Services case serves as a reminder of the importance of complying with the mandatory concerns notice requirement under the Uniform Defamation Laws in Australia.

• Failing to provide a proper concerns notice can lead to the summary dismissal of defamation claims, and such defects cannot be retrospectively remedied by amendment.

• As such, it is essential for those pursuing defamation claims to ensure strict adherence to the concerns notice provisions of the DA.

Can a Guardian Initiate Divorce Proceedings on Behalf of a Represented Person in Western Australia?

Guardianship law is a complex area, and one question that often arises is whether a guardian can initiate divorce proceedings on behalf of a represented person.

In this blog post, I explore this topic in the context of Western Australian guardianship law, with reference to the decision in LWL [2008] WASAT 35.

The Guardianship and Administration Act (GA Act)

The GA Act is the key legislation governing the appointment and role of guardians in Western Australia.

However, the Act is silent on whether a guardian can initiate divorce proceedings on behalf of a represented person.

To understand the relevant provisions, we need to look at sections 45 and 46 of the GA Act.

Plenary Guardians (s 45)

Section 45(3)(d) of the GA Act explicitly states that a plenary guardian cannot give consent in relation to the marriage of a minor, sign a notice of intended marriage, or take part in the solemnisation of a marriage under the Marriage Act 1961 (Cth).

However, there is no mention of divorce proceedings in this section.

Under s 45(2)(g) of the GA Act, a plenary guardian may commence, conduct, or settle any legal proceedings on behalf of the represented person, as their next friend, except proceedings relating to the person's estate.

This provision may suggest that a plenary guardian has the authority to initiate divorce proceedings, but it is not explicit.

Limited Guardians (s 46)

Section 46 of the GA Act allows for the appointment of a limited guardian with specific functions vested in them by the Tribunal.

A limited guardian, if given the function under s 45(2)(g), may have the authority to initiate divorce action for a represented person by way of a case guardian, as per Pt 6.3 of the Family Law Rules 2004 (Cth).

LWL [2008] WASAT 35

In LWL [2008] WASAT 35, the Tribunal addressed the issue of whether a guardian could initiate divorce proceedings on behalf of a represented person.

It was decided that the matter required obtaining legal advice on behalf of the represented person, as the issue was at a preliminary stage.

The Tribunal then appointed a limited guardian, MIL, with the function of seeking legal advice on whether divorce proceedings could be initiated against the represented person's spouse.

The Tribunal also directed MIL to seek directions from the Tribunal pursuant to s 74 of the GA Act once the legal advice had been obtained.

Key Take-Aways

• While the GA Act does not explicitly address whether a guardian can initiate divorce proceedings on behalf of a represented person, the decision in LWL [2008] WASAT 35 suggests that a limited guardian may have the authority to do so, provided they have been granted the relevant function under s 45(2)(g).

• However, it is important to obtain legal advice on the matter, as was the case in LWL.

Appellate Reviews of Findings of Fact: A Closer Look

Appellate review of findings of fact is an important aspect of the legal process, ensuring that trial judges' decisions are carefully scrutinised for potential errors.

This blog post provides an overview of appellate reviews of findings of fact, including the principles that guide appellate courts in conducting these reviews.

The Real Review Standard

In Robinson Helicopter Co Inc v McDermott, the High Court articulated the standard of review for appellate courts when examining findings of fact.

Appellate courts are required to conduct a "real review" of the evidence and the trial judge's reasoning, and determine whether the judge has erred in fact or law.

However, appellate courts should not interfere with a trial judge's findings of fact unless they are:

• glaringly improbable,

• contrary to compelling inferences, or

• demonstrably wrong based on incontrovertible facts or uncontested testimony.

Inferences from Findings of Fact

There has been some debate regarding whether the standard set forth in Robinson Helicopter applies to inferences drawn from findings of fact.

While the High Court has not directly addressed this issue, it has been resolved in other cases that the standard does not apply to inferences.

Instead, appellate courts are generally considered to be in as good a position as the trial judge to draw proper inferences from undisputed facts or facts found on the evidence.

Nevertheless, appellate courts must make "due allowance" for the fact that they have neither seen nor heard the witnesses, recognizing the trial judge's advantages in evaluating witness credibility and the overall "feeling" of a case (Fox v Percy).

Respect for the Trial Judge's Conclusions

Appellate courts should give respect and weight to the conclusions reached by the trial judge.

However, once the appellate court has conducted its real review and reached its own conclusion, it must give effect to that conclusion, even if it differs from the trial judge's decision.

The appellate court is still required to conduct a real review of the trial and the judge's reasoning, ensuring that any errors in fact or law are identified and corrected.

Economic Loss Arising from Defamation: Impaired Capacity to Work

Defamation cases can have a significant impact on a person's ability to work, especially when the defamatory material is published widely and causes reputational damage.

In this blog post, I discuss the issue of economic loss arising from defamation, focusing on the impairment of a person's capacity to work.

I reference the decision in Poniatowska v Channel Seven Sydney Pty Ltd [2020] SASCFC 5, as well as other relevant cases, to provide an understanding of this subject matter.

Economic Loss in Defamation Cases

In defamation cases, economic loss may be claimed by the plaintiff if they can prove that the defamatory material published has caused a negative impact on their capacity to work.

In the case of Poniatowska v Channel Seven Sydney Pty Ltd [2020] SASCFC 5, the plaintiff claimed that the publication of the defamatory material led to a relapse in her psychiatric conditions (depression and anxiety) and caused her incapacity to work. Furthermore, her loss of reputation adversely affected her prospects of obtaining employment.

Causation: Effect of Publication on Capacity to Work

To establish a causal link between the publication of defamatory material and the plaintiff's incapacity to work, expert evidence may be required.

In Poniatowska's case, the expert evidence of Dr. Czechowicz was crucial in proving that the publication had caused a relapse of her psychiatric conditions, which in turn resulted in her incapacity to work.

In some cases, the defamatory material may only be one of several contributing factors to the plaintiff's impaired capacity to work.

In Poniatowska, the court acknowledged that the defamatory publication was one of several factors that contributed to her psychological dysfunction.

Assessment of Damages for Economic Loss

Determining the appropriate amount of damages for economic loss in defamation cases can be challenging.

In some cases, a mathematical approach can be taken by multiplying the value of the lost opportunity by the percentage chance that the opportunity would have materialized. In other cases, a more holistic assessment may be required.

In Poniatowska, the court opted for a broad-axe holistic assessment of the economic loss, considering the adverse circumstances caused by the defamatory publication that impacted her earning capacity. These circumstances included the:

• exacerbation of her psychological dysfunction, which affected her job-seeking efforts, motivation; and

• capacity to seek employment in various roles.

The court ultimately assessed her economic loss at $80,000.

Key Take-Aways

• Economic loss arising from defamation can have a significant impact on a person's capacity to work.

• The Poniatowska v Channel Seven Sydney Pty Ltd [2020] SASCFC 5 decision provides valuable insights into how courts assess the causal link between the publication of defamatory material and the plaintiff's incapacity to work, as well as the appropriate damages for economic loss.

• When pursuing a defamation claim, it is essential to gather strong evidence to establish causation and to ensure that damages for economic loss are accurately assessed.