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- Unreported Judgment
ML QCAT 232
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
ML  QCAT 232
Guardianship and administration matters for adults
13 August 2019
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where a final costs order made against a party in favour of an attorney of a principal now deceased – where further orders were sought relating to the enforcement of the costs order – where the Tribunal has no enforcement powers of costs orders – where orders sought for the production of documents by the attorney to the Tribunal – where no current proceeding about the deceased principal was pending before the Tribunal – whether the Tribunal has jurisdiction to make orders being sought – whether the applications should be dismissed as lacking in substance
GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – Where a former attorney seeking orders to restrain further applications being filed in the Tribunal – where a former attorney seeking a penalty to be imposed on an applicant for providing false or misleading information to the Tribunal – where a former attorney seeking costs when his own applications were not completely successful –whether the Tribunal has powers to make orders to restrain and penalise an applicant – whether the Tribunal’s discretion should be exercised not to award costs
Guardianship and Administration Act 2000 (Qld), s 115(2), Schedule 4
Powers of Attorney Act 1998 (Qld), s 125
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62, s 131, s 132, s 216
REASONS FOR DECISION
- ML had been the subject of various applications to this Tribunal from August 2016 under the Guardianship and Administration Act 2000 (Qld). ML died in March 2017. An order was made by the Tribunal on 23 March 2017 that MC pay MJR’s costs of the applications filed before but heard shortly after the death of ML. Costs were to be assessed by an assessor agreed to by the parties and failing agreement, the Tribunal would make an appointment of the assessor. As the parties did not agree as to an assessor, the Tribunal made an order on 22 November 2017 appointing an assessor.
- The cost assessor filed a certificate in the Tribunal as to the assessed costs on 30 November 2018.
- MC filed an application in the Tribunal on 4 December 2018 seeking an order that the Tribunal give directions to MJR to substantiate that he had paid the costs of his legal representatives, relative to the proceedings in the assessment, from his own funds. MC also sought a direction that MJR produce specified documents to the Tribunal relative to the costs assessed and to the payment of those costs to his legal representatives.
- MJR has objected to the orders being sought by MC. MJR has cross applied for an order striking out MC’s applications and for an order to enforce the cost assessment, for an order to restrain MC from lodging any further applications in the Tribunal, for an order to penalise MC for giving the Tribunal registry documents containing false or misleading information and for an order that MC pay MJR’s costs of these applications on an indemnity basis, or in the alternative, that if the application by MC is not struck out, that a full hearing be held of MC’s application.
- After final written submissions about the applications of MC and MJR had been filed by the parties, the Tribunal made on order that the applications were to be determined without an oral hearing on the basis of submissions filed in the Tribunal up to and including 15 April 2019.
- It is logical to start with a determination of MC’s application. MC seeks orders that in essence relate to the enforceability of the costs order made by the Tribunal on 23 March 2017. That order was a final order of the Tribunal except as to the limited issue of whether a subsequent order would be made as to the appointment of an assessor failing agreement of the parties. The order made on 23 March 2017 determined that the substantive legal issue between the parties was that MC was obliged to pay MJR’s costs of the applications before the Tribunal as at 23 March 2017.
- Once that final order was made, the Tribunal had no jurisdiction to make other orders about the legal issue of MC paying MJR’s costs, except for the area of jurisdiction expressly reserved by the Tribunal as to the appointment of an assessor. The Tribunal does not have any power to enforce the order that it has made about costs. Enforcement of such orders lies with the courts with the relevant monetary jurisdiction i.e. the Magistrate Court. If MC believes that the costs order cannot be enforced, then her option is to resist enforcement in the relevant jurisdiction.
- The application by MC for directions is beyond the jurisdiction of the Tribunal to make as it relates to a final order made by the Tribunal. That part of MC’s application is dismissed.
- MC also seeks an order directing that MJR produce documents to the Tribunal under section 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The power to make directions under that section is not unlimited but relates to making directions in a proceeding necessary for the speedy and fair conduct of the proceeding. The power can be exercised so that a party can be directed to produce a document to another party to the proceeding. There was no proceeding in existence in the Tribunal about ML when MC’s application was filed on 4 December 2018. MC’s application does not in any way seek to promote the speedy and fair conduct of a proceeding outstanding and unheard by 4 December 2018. MC’s application for an order that MJR produce documents relates to enforcement of the costs award and is not an order that the Tribunal can make. Accordingly, that application is lacking in substance and is dismissed.
- Turning to the orders being sought by MJR, the Tribunal is asked to issue enforcement orders for the costs ordered to be paid by MC. The Tribunal does not have enforcement powers for costs orders. MJR must seek enforcement in the appropriate jurisdiction. The application for orders about enforcement is dismissed.
- The Tribunal does not have power to restrain MC from filing further applications against MJR or his partner SM about the financial affairs of ML if such applications are made by MC as an interested person in terms of ML.
- In any event, given the fact that ML died in March 2017, it is difficult to anticipate what could be the subject matter of any further applications about ML’s affairs that could be properly initiated in the Tribunal by MC. Seeking orders from the Tribunal in 2019 or later about the actions of ML’s attorney in 2016 or 2017 prior to the death of ML cannot be any longer about ML’s welfare or need for decision-making support but are more likely to be about what funds should be in her estate. In that circumstance, such applications fall within the jurisdiction of the courts which have powers to make orders about deceased estates.
- Legal action, designed to gather information about the assets of a deceased person and to assist in claiming back assets improperly used by an attorney before the death of a principal, can only be taken by the executor of the estate. According to documents filed in the Tribunal, MC is not the executor of ML’s estate. The application for an order restraining MC from filing further applications about ML is dismissed. Any further application filed by MC must be considered as to whether there is substance in the application and if an application lacks substance, it can be then considered for dismissal.
- MJR seeks an order that MC is penalised for providing false or misleading information to the Tribunal. Section 216 of the QCAT Act sets out the penalty for a person providing false or misleading information to the Tribunal. Such a penalty cannot be imposed by an order of the Tribunal but is a penalty imposed by a court of appropriate jurisdiction once an offence for breach of the Act is proven. The application for imposition of a penalty against MC is beyond the power of the Tribunal and is dismissed.
- The last order sought by MJR is that MC is ordered to pay MJR’s costs of these applications. Awarding costs is an exercise of discretion by the Tribunal. Unless the Tribunal otherwise orders, costs should follow the event.
- However, MJR’s applications have not been entirely successful. Three of his applications were unsuccessful and were dismissed. His application for a strike out of MC’s application was overtaken by the Tribunal’s own decision that those applications must be dismissed for lack of substance. MC’s applications were dismissed by the Tribunal on a basis that did not rely on the submissions filed by MJR in support of his strike out application. In that sense, his submissions, opposing MC’s applications and seeking those application to be struck out, did not result in those applications being dismissed. Rather, the Tribunal found that MC’s applications were lacking in substance as the outcomes sought were beyond the jurisdiction of the Tribunal following its final order made on 23 March 2017 and the lack of any current proceeding about ML.
- It would be unfair to find that MJR should be awarded costs on the basis that costs should follow the event of dismissal of MC’s applications. MJR’s submissions both in relation to MC’s applications and in support of his own applications were not helpful to the Tribunal in reaching its decisions on the applications. There must be an end to the conflict between MC and MJR in this Tribunal and making an award of costs is unlikely to support such an end. The Tribunal exercises its discretion to refuse MJR’s application for costs in these applications as it is not appropriate that costs follow the event in this case.
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 QCAT 232
13 Aug 2019