THV[2017] QCAT 116

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   The Tribunal received applications from AV seeking her appointment as both guardian and administrator for her father, THV. The hearing of the applications took place on 21 December 2016. I dismissed both applications because I found that THV had capacity to execute an Enduring Power of Attorney on 28 April 2016. In that document he appointed his friend, HM as his attorney. AV argued at the hearing that her father lacked capacity to make the Enduring Power of Attorney.
2. [2]
   The Tribunal can only appoint a guardian and/or an administrator if it is satisfied that the adult the subject of the application lacks capacity for decision-making. Capacity is defined in Schedule 4 of Guardianship and Administration Act 2000 (Qld) (GAA Act). In the Powers of Attorney Act 1998 (Qld) (POA Act) capacity is defined in the same terms in Schedule 3.
3. [3]
   To execute an Enduring Power of Attorney a principal must understand various matters which are outlined in s 41 of the Powers of Attorney Act. There is a presumption in both the POA Act and the GAA Act that an adult has capacity. That presumption can be rebutted with relevant evidence.
4. [4]
   The evidence before me on 21 December 2016 did not convince me that the presumption of capacity could be rebutted. The Tribunal has two applications before it now for costs to be granted. It is the usual course in guardianship matters that each party in a proceeding is to bear the party’s own costs of the proceedings.^[1]
5. [5]
   The Tribunal received an application in relation to costs from THV through his solicitor, Mr Herd. AV applied for an order that her costs be paid by THV, on the basis that her actions had been solely for the benefit and concern of her father, and the evidence supported that there was a reasonable concern and her actions appropriate.
6. [6]
   I will deal with AV’s application now. There is nothing in s 127 of the GAA Act which provides for an applicant to receive costs. The Tribunal may only order an applicant to pay costs. There is no other provision in s 127 for costs to be awarded, other than against an applicant. AV’s application must therefore fail.
7. [7]
   There are circumstances, however, in which the Tribunal may order an applicant to pay an active party’s costs and the costs of the Tribunal in exceptional circumstances, including for example, if the Tribunal considers the application is frivolous or vexatious.^[2] Various sections of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) may also apply in particular circumstances. None of these provisions are relevant to the current matter, apart from s 107 relating to fixing or assessing costs.
8. [8]
   The GAA Act does not define what is exceptional. It gives two examples, but these are not comprehensive. To be exceptional a case needs to be out of the ordinary, unusual or special. I need to consider the individual circumstances of this case to determine if an exceptional case exists. I have discretion in this regard, taking into account the legislation and the circumstances. In order to grant costs against the applicant, I need to be satisfied on the balance of probabilities that there are exceptional circumstances.
9. [9]
   I gave lengthy oral reasons at the conclusion of the hearing on 21 December 2016 when I found THV had capacity. I will not recount these reasons in any detail although I will address some of my observations in respect of findings about capacity.
10. [10]
    THV is a former staff member in the department of chemistry at a university in south-east Queensland. He has a range of medical problems which led him to hospital in late 2015 and early 2016. He had previously appointed AV, as attorney under an Enduring Power of Attorney in August of 2003 and from all accounts they got on well until late January 2016 when AV said her father had a stroke. No medical evidence was put before me that THV had a stroke in January 2016. It seemed that AV was relying on her observations about her father’s changed attitude to her to make that claim.

The submissions of THV

11. [11]
    Mr Herd correctly points out that THV is presumed to have capacity for all matters under s 7 and Schedule 1 of the GAA Act. Mr Herd refers me to the report of Dr Colin Kennett, a Geriatrician, dated 4 February 2016 in which it was concluded that THV has capacity to make health and lifestyle decisions, as well as financial decisions. A further report of Dr Nicholas John, a Geriatrician, dated 18 February 2016 concludes that THV can make complex and simple decisions about all matters affecting his affairs. Dr Gooch, THV’s General Practitioner, noted on 17 July 2016 that THV has the capacity to make an Enduring Power of Attorney. Further, on 14 December 2016, Dr Gooch had stated ‘It is my view that [THV] has capacity to make financial, health and lifestyle decisions in an unhindered way’.
12. [12]
    Mr Herd also referred me to the evidence of witnesses at the hearing who spoke of THV’s ability to function capably in his day-to-day life, and to make decisions independently and prudently. Mr Herd submitted that since the filing of her application some 10 months ago, AV has produced no medical evidence or any other independent evidence suggesting any impaired capacity on behalf of THV. He noted her two applications for interim orders were dismissed by the Tribunal. I draw no inference from that on the basis that interim orders are only granted where there is an imminent risk of harm, not necessarily where a need for an appointment may exist.^[3]
13. [13]
    In August 2016, the applicant was advised in an email from the QCAT Registry that there was no evidence to rebut the presumption of capacity. Mr Herd submits that despite that, AV still failed to produce any evidence and participated in a Compulsory Conference which resulted in an in principle agreement, which subsequently was not concluded as AV took legal advice on the matter. Mr Herd also submitted that it would appear that AV had no contact with her father for several months and therefore was not in a position to make any helpful or relevant observations on his capacity. Instead, Mr Herd argued, AV’s claims relied on unverified hearsay evidence about conversations that THV had with some merchants.
14. [14]
    Mr Herd argues that the application was both frivolous and vexatious. He referred to the case of Dey v Victorian Railways Commissioners [1949] HCA 1 in which it was said that frivolous was unsupportable in law, disclosing no action or groundless. In arguing that AV’s application was frivolous, Mr Herd submitted that the applicant filed her application whilst being aware of the independent reports of Dr Kennett and Dr John, and she persisted with her application, despite the advice from the Tribunal Registry that there was no evidence to rebut the presumption of capacity. He further argued that AV had not had contact with her father for some months and cannot provide any direct evidence of her observations, and instead has resorted to hearsay and trivial snippets of conversations from others. Mr Herd argued that her application was groundless and unsupportable in law from its inception.
15. [15]
    Mr Herd also argued that the application was vexatious and referred me to the case of Jorgensen v Jorgensen & Ors [2016] QSC 193, in which Daubney J was required to determine an application in relation to a defendant being declared a vexatious litigant. Mr Herd submitted that on the evidence before the Tribunal, the applicant’s conduct both in the proceedings and outside the proceedings has been, and remains, vexatious in that it demonstrates the relevant criteria outlined in Jorgensen, namely:

    1. Legal action without any reasonable grounds;
    2. Repetition of arguments which have already been rejected;
    3. Persistent attempts to abuse the legal process; and
    4. Harassment and annoyance of a party in litigation that lacks any reasonable basis.
16. [16]
    Mr Herd submitted that in this regard AV embarked on a course of conduct of malevolent manipulation of THV’s affairs outside of the proceeding, evidencing a total and intentional disregard of her father’s rights, including:

    1. Resisting her father’s attempts to move funds from his self-managed superfund to a retail fund;
    2. Alleging he was unfit to drive and not providing him with his motor vehicle;
    3. Making serious and unfounded allegations about THV’s Enduring Power of Attorney without any evidence;
    4. Insidiously portraying THV’s friends as unhealthy influences; and
    5. Forcing her father to expend large sums of money on legal costs to defend baseless applications.
17. [17]
    Mr Herd argued that it was important that the Tribunal send a message that s 127 has real meaning and there are actual adverse cost consequences if an applicant abuses the legal process and the rights of an adult for their own ends in total disregard of the evidence. Mr Herd also made submissions in relation to how costs should be determined.

AV’s submissions

18. [18]
    AV’s solicitor, Mr Pennisi submitted that Mr Herd’s application for costs was without merit as the legislation and authorities set an extremely high standard for an order for costs to be made against the applicant. He submits that the high standard has not been met and the application for costs should be dismissed.

The Tribunal’s view

19. [19]
    The Tribunal is satisfied that AV did hold genuine concerns for her father and that she thought her father was becoming confused and forgetful and unable to protect himself. In this regard, in the substantive hearing she referred to her sister having taken considerable sums of money from her father’s account. This is not in dispute. She was also concerned that her father’s attitude towards her had changed.
20. [20]
    Whilst acknowledging the above as being her genuine belief, she was nevertheless faced with the fact that she had no medical evidence to support her. In fact, all of the medical evidence of which she was aware was to the contrary. All the medical evidence indicated that THV did have capacity to make decisions at the time he made the Enduring Power of Attorney, and that he currently still has that capacity.
21. [21]
    Whilst there were some references in some reports to some concrete thinking and at one time, being able to make simple but not complex decisions, all the evidence indicated that there were some temporary mild impairment of cognition, but not one that would meet the test to conclude he had impaired capacity. In addition to this, I note that AV has had little or no contact with her father for a considerable period of time. It seems to me that she ignored the health professional reports.
22. [22]
    AV was also advised by email in August 2016 by Tribunal Registry staff that she had no health professional evidence to rebut the presumption of capacity. I have previously dealt with the arguments of Mr Herd in relation to applications for interim orders being rejected, and consider this not relevant given the test required under s 129 of the GAA Act. I have previously made comments in relation to why there is no basis in law for making a costs order in AV’s favour.
23. [23]
    Whilst THV was certainly irritated and agitated by the making of the applications, I do not consider the applications were vexatious. The references made to this in Mr Herd’s submissions were in respect of a person potentially being declared a vexatious litigant. I do not consider AV’s actions deliberately set out to be aggravating and annoying to her father. I do not accept there were persistent attempts to abuse the legal process. I do not accept there has been a repetition of arguments which had already been rejected. I do not consider there were consistent attempts to abuse the Tribunal’s processes.
24. [24]
    I turn now to the question of whether the application was frivolous. AV lodged her application with no supporting or independent evidence as to capacity. The fact that she persisted with her application, even after two applications for two interim orders were dismissed is not a factor I will consider for reasons indicated earlier. It concerns me that AV continued with her application after advice from the Tribunal Registry on 5 August 2016.
25. [25]
    I accept that the application was essentially groundless and unsupportable. There have been matters before this Tribunal in which health professionals, usually General Practitioners – but not exclusively, have indicated that a person had capacity where appointments have nevertheless been made. This has usually been because there has been a wealth of alternative evidence from a range of parties such that the evidence from the health practitioner has been given little or no weight. In this case however, two specialist Geriatricians, as well as THV’s General Practitioner have all attested to THV’s capacity being intact over a period of time. This is a large hurdle to overcome.
26. [26]
    AV did not present any evidence to support her contention other than her own observations and hearsay conversation of a couple of other people. Against this was not only the weight of evidence of the health practitioners, but also evidence from eyewitnesses. These included THV’s attorney, his friend Dr George, and a financial planner from Uni Super. AV sought to attack some of this evidence. In my reasons I noted that I did not accept all of her submissions.
27. [27]
    The Macquarie Dictionary defines frivolous as ‘being of little weight, worth or importance; not worthy of serious notice’. It could be considered that pursuing a matter in the face of overwhelming medical evidence to the contrary because of one’s own personal views, could be regarded as something not worthy of serious notice.
28. [28]
    AV was seeking to protect her father. She made some serious allegations against the attorney, which may have been a reason for her pursuing the application. As my reasons in the substantive matter demonstrate, I did not accept any of her arguments. I was satisfied that the attorney had acted appropriately on professional advice and had not breached any relevant section of the POA Act.

Was continuing with the application reasonable in the circumstances?

29. [29]
    I have concluded that the answer to this question is no. I consider that the material weighs in favour of this being considered an exceptional case. To continue with an application in the face of specialists’ reports finding that THV had capacity, and in consideration of the Tribunal Registry’s advice in August 2016, I find that it unusual and out of the ordinary for the application to be pursued by AV. I note further that the witnesses to the revocation of the Enduring Power of Attorney appointing AV and the execution of the Enduring Power of Attorney appointing HM both made certification about THV’s understanding.
30. [30]
    It has put THV to considerable expense, in my view, unnecessarily. I note that there was a Compulsory Conference and an agreement in principle. This was subsequently not signed off by AV, presumably after getting legal advice about it. I am not privy to the in principle agreement. It does however strike me as unusual that having gone through a Compulsory Conference process where an agreement was reached in principle, that the matter was not finalised, particularly given the health professional evidence as to THV’s capacity for decision making.
31. [31]
    Whilst Mr Pennisi argued that the application for costs should be dismissed, he has failed to provide me with any further material and has not referred me to any legislation or cases to support his argument that the high standard has not been met. I do not accept this submission.
32. [32]
    As a consequence of the above reasoning I have decided it is appropriate to order the applicant to pay the costs of THV.
33. [33]
    Costs are to be assessed under rule 87(2)^[4] with reference to the District Court Scale by an assessor agreed to by the parties, or failing agreement, by an assessor subsequently appointed by order of the Tribunal.