LER[2017] QCAT 266

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]
   An application by LS to review the appointment of The Public Trustee of Queensland as the administrator for her husband, LER, was resolved at a conference conducted at the Tribunal on 3 May 2016. The applicant, LS, has applied for an order that The Public Trustee of Queensland be directed to pay her costs of the review application from the funds of LER that are being managed by the administrator. LS submits correctly that the QCAT Act requires that each party to a proceeding pay their own costs of that proceeding. Indeed, a similar provision is contained in s 127(1) of the Guardianship and Administration Act 2000 (Qld) (GAA Act). For that reason, she is not seeking a costs order against any of the active parties to her application but she is seeking reimbursement for the legal costs she had incurred from LER’s funds.  
2. [2]
   LS submits that her review application was brought to protect and promote the interests of LER. To support her request for reimbursement of her legal costs, LS’s submissions are based on whether the interests of justice require that an order as sought should be made. Her submissions ask the Tribunal to apply the factors set out in s 102(3) of the QCAT Act when considering her reimbursement request. 
3. [3]
   However, the provisions in s 102(3) of the QCAT Act do not apply to applications made under the GAA Act. The GAA Act contains specific provisions as to the circumstances when the Tribunal can made orders about costs in guardianship proceedings.^[1] The only part of the costs provisions in the QCAT Act that are specifically available for use in guardianship proceedings are s 101 and s 103 to s 109 according to s 127(3) of the GAA Act.
4. [4]
   The GAA Act is an enabling Act for QCAT proceedings as it confers original jurisdiction on the Tribunal.^[2]   The GAA Act, as an enabling Act, varies or modifies provisions that would otherwise apply to proceedings in the Tribunal, such as the power to make costs orders.  The QCAT Act recognises that an enabling Act can modify the manner in which proceedings are conducted in the Tribunal and in s 7(2) the QCAT Act specifies that a modifying provision in an enabling Act prevails over provisions in the QCAT Act to the extent of any inconsistency between the Acts. 
5. [5]
   The GAA Act does not require the Tribunal to consider the factors in s 102(3) of the QCAT Act when making a decision about the ordering of costs.  The submissions by LS based on the provisions in the QCAT Act are not relevant to the outcome she seeks.
6. [6]
   LS submits that her application had sought to promote and provide for the best interests of LER by achieving more reasonable and appropriate arrangements with respect to the management and use of LER’s estate.  She submits that as a result of her advocacy, LER’s administrator agreed to pay a 70% increase in expenditure for LER and his household.  LS submits that no other person was more appropriate to bring the application than she was in view of the refusal of the administrator to increase the expenditure budgeted for LER. 
7. [7]
   However, the actual application brought by LS was to replace the administrator as it was argued that the relationship with the administrator had broken down.  Her application was not primarily directed at seeking a change to the payment arrangements for the expenditure of LER and his household.  That appears to have been a negotiated outcome and the appointed administrator remained in place.  If LS intended from the outset to achieve that result, she could have saved herself most of the legal costs she incurred by filing an application for directions in the Tribunal and asking for a conference before any further steps had been taken.  It is clear from her filed documents and from her submissions that her intent was to replace The Public Trustee of Queensland as administrator for LER and she did not succeed in that quest. 
8. [8]
   In her submissions in support of her reimbursement request, LS refers to provisions in the Public Trustee Act (1978) (Qld) (PT Act).  She submits that s 80 of that Act permits the payment of her costs from the estate of LER. Section 80 does not relate to guardianship applications brought under the GAA Act.  LER is not an incapacitated person in terms of s 80 of the PT Act.  An incapacitated person is defined in the PT Act as a protected person (i.e. a person under a protection order) or a person whose estate is managed under jurisdictions other than Queensland which have made protection-like orders against a person. 
9. [9]
   The provisions in the PT Act referred to by LS do not apply to appointed administrators under the GAA Act.  Her submissions that rely on s 80 of the PT Act are not relevant.  She is correct in submitting that the costs of The Public Trustee of Queensland incurred in responding to her application are recoverable from the funds of LER but that outcome is specifically permitted by s 47 of the GAA Act.  No such specific provision is contained in the GAA Act for recovery of the costs of an applicant who is not a guardian or administrator. 
10. [10]
    LS submits that LER’s estate is significant and can bear the awarding of LS’s costs without detriment to LER’s estate. The reimbursement sought by LS amounts to $82,589.74.  LS submits that she has incurred these significant liabilities in undertaking her application for the benefit of LER.  She submits that it is near-inconceivable that LER (if he had capacity) would ever intend to financially cripple his own household and spouse for trying to promote and prosecute his best interests. 
11. [11]
    The Tribunal, when it performs a function under the GAA Act, must apply the General Principles set out in Schedule 1 of the GAA Act.^[3]  Although LER has impaired capacity for making decisions about his legal affairs, his views and wishes should be taken into account to the greatest extent possible when making decisions about him.^[4]  While the assertion made by LS that LER would not want his spouse adversely impacted by the burden of paying a large amount of legal costs is not unexpected, there is insufficient evidence available to the Tribunal to be satisfied what were LER’s views and wishes about the extent of legal costs being incurred by his wife in bringing and continuing the review application in the manner that she had.
12. [12]
    The General Principles also require the Tribunal to exercise its powers under the GAA Act in a way consistent with LER’s proper care and protection.  To consider what decision about reimbursement of LS’s costs is consistent with LER’s proper care and protection, it is appropriate to look at the context in which legal action has been taken by LS against LER’s administrator.
13. [13]
    In addition to the review application that is the subject of the reimbursement request, the submissions of the other active parties reveal that LS had, three weeks after the resolution reached at the compulsory conference on 3 May 2016, commenced further litigation against the administrator on 24 May 2016.  This further litigation was in the Supreme Court of Queensland and sought judicial review of decisions made by the administrator, including the decision not to reimburse LS’s costs from the QCAT proceedings.  On 2 June 2016, the Supreme Court ordered that the judicial review application be dismissed and costs were awarded against LS on an indemnity basis. 
14. [14]
    LS, by her actions and on her own behalf, has incurred significant legal costs in QCAT proceedings and in the Supreme Court.  The timing of the application in the Supreme Court, brought so soon after achieving an increase in expenditure for LER, is difficult to justify as being in the interests of LER. It is not unreasonable to draw an inference that LS is so intent on achieving what she wants for LER and for herself as the other member of his household and financially dependent on him, that her actions demonstrate that she has preferred her own interests over the interests of LER. 
15. [15]
    An administrator must act in a manner consistent with the proper care and protection of an adult with impaired capacity. The Public Trustee of Queensland is not required by the General Principles to support the actions of LS where she places her own interests over those of LER. Reimbursement of costs from LER’s estate would have the effect of endorsing and encouraging litigation by LS in the Tribunal, which has in the review application been conducted in a manner with no obvious restraint about incurring significant legal costs of over $82,500 in circumstances where LS concedes she has limited means and cannot afford those costs.
16. [16]
    LS is content that LER pays her costs as she submits that he can afford to do so. That is not a compelling argument as it underlines the fallacy in the submissions of LS that the funds of LER should be available to her in decisions that she makes about litigation which is conducted without proper restraint and on some occasions, such as the Supreme Court action, without merit. An administrator must examine all requests for funding outside an agreed budget on their merits, but there is no basis for submitting that such a request must be paid if they can be afforded by the estate of the adult in question. Reimbursement by an administrator of over $82,500 for legal costs incurred in a no-cost Tribunal environment can only be made if justified for the proper care and protection of LER. For the reasons set out below, the submissions of LS do not satisfy the Tribunal that reimbursement of the claimed costs are justified for the proper care and protection of LER.    
17. [17]
    The inference that LS preferred her own interests over those of LER is supported by the manner in which the QCAT review proceeding was conducted by LS. It is clear that QCAT is effectively a no-costs jurisdiction and especially so in proceedings brought under the GAA Act. LS had instructed lawyers to act for her despite active parties having to bear their own costs in this Tribunal. LS instructed senior counsel to act for her in the review proceeding. There is no precedence from this Tribunal referred to by LS or by the other active parties to order reimbursement of an applicant’s costs from the estate of a person under an administration appointment. 
18. [18]
    The former Guardianship and Administration Tribunal has on one recorded occasion directed reimbursement of an applicant’s costs from the funds of a person under an administration appointment. In re ERF,^[5] that Tribunal founded its order on being satisfied that there were exceptional circumstances, that the costs incurred by the applicant were reasonable, that a significant benefit was achieved for the adult by the application, and the applicant had not obtained a financial benefit in bringing the application. 
19. [19]
    The former Tribunal expressly stated that the case should not be seen as a precedent. That warning appears to have been followed as no other recorded instance of recovery in similar circumstances is apparent despite the GAA Act being in operation for over 16 years. It is clear that it was not the practice of the former Tribunal and nor is it the practice of the current Tribunal to make reimbursement orders under the GAA Act to parties other than appointed decision-makers for an adult with impaired capacity. 
20. [20]
    Although re ERF is authority for the proposition that making a reimbursement order is possible under s 138 of the GAA Act, it is not binding authority that such an order should be made. LS’s submissions have not established that the review proceeding was brought in exceptional circumstances. To the contrary, it is relatively common for reviews to be sought of institutional decision-makers when families are opposed to decisions made by the appointees. The outcomes achieved from the review application achieved a benefit for LER but also achieved a financial benefit for LS whose personal costs would be paid to a greater extent from the funds of LER than before the resolution made on 3 May 2016. The prerequisite factors identified in re ERF are not satisfied in LS’s case.
21. [21]
    Even if the proposition were to be accepted that, in order to protect the interests of her husband, LS believed that she had no choice but to commence proceedings for the removal of The Public Trustee of Queensland as the administrator of LER, it is not axiomatic that LS could have her costs of in excess of $82,500 reimbursed from LER’s estate. She had other options to protect LER’s interests that would not ultimately result in a liability to him of over $82,500. The Tribunal rejects the assertion by LS that she had conducted the review application in the manner she did in order to promote and protect the interests of LER. It is more likely that she conducted the proceeding mostly in her own interests and that she had exercised no restraint over the legal costs being incurred regardless of the impact she intended those costs would have on LER’s financial position.  
22. [22]
    She could have brought to the Tribunal an application for a direction to be made to the administrator to increase the amount of monthly payments for the expenditure incurred by LER and his household. She could have then asked for a conference immediately after filing her application. She had options other than instructing senior counsel and lawyers in her application to remove the administrator. She knew, or her lawyers knew, that a costs order would not be able to be made under s 127 of the GAA Act, even if she succeeded in the removal of the administrator. Her lawyers should have known that reimbursement orders are not made under the GAA Act as a matter of routine or even as a consequence of achieving a successful outcome of an application. Parties must bear their own costs except under exceptional circumstances that are not present in this case.  
23. [23]
    LS submitted that she had been put to significant emotional cost, detrimental health consequences, and embarrassment by having to deal with the administrator who had adopted an adversarial stance to the conduct of LER’s financial affairs. Even if this assertion were to be accepted, it is of little weight in determining reimbursement of costs from the estate of LER. In any event, it is the legal duty of an administrator to act prudently in the management of the financial resources of a person with impaired decision capacity. It is reasonable for an administrator to require proof of expenses and to be satisfied as to the purpose of those expenses before authorising payment from the funds of a person with impaired capacity. Any inconvenience or embarrassment caused to LS in this process is of course regrettable but should not result in reduced vigilance on the part of an administrator in ensuring the funds of LER are managed appropriately. 
24. [24]
    Finally, LS in her final submissions received on 21 October 2016 added further grounds for the request for reimbursement and also responded to the submissions made by the other active parties. Those further grounds disclose very little of relevance to the issue being determined. The final submissions are in part argumentative and insulting to the administrator. Despite reading those submissions with the knowledge that LS was not represented at the time she prepared them, the Tribunal could not find in them persuasive and cogent grounds for reimbursement. It is not a breach of LS’s rights to decline reimbursement of her costs from the funds of LER as there is no right to expect reimbursement in such a case.    
25. [25]
    The application for a direction that The Public Trustee of Queensland reimburse the costs of LS in the review application is refused.