MET[2021] QCAT 254

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This matter came on for hearing before another learned Member on 9 September 2020.  At that time, the Member gave a final decision but reserved the question of costs for a further decision without the need for a further oral hearing but based on submissions from the parties. At the conclusion of the learned Member’s oral reasons, in relation to costs he gave the parties “until 4 pm on the 9^th of October to file any submissions they wish to make in relation to the order of costs and the Tribunal will make a decision on the papers”.
2. [2]
   The Member responsible for the Tribunal’s consideration of submissions of costs and the determination of costs without a further oral hearing was reconstituted by the President of QCAT on 13 May 2021. 
3. [3]
   In considering this matter I have had regard to the documents identified by the previous learned Member as considered by him at the oral hearing of the substantive applications being in particular, those documents provided to the Tribunal by the parties up to the substantive hearing of this matter on  9 September 2020.  I have also read the transcript of those proceedings and the submissions on costs provided by MJ, MK and on behalf of MET.
4. [4]
   I note that as a preliminary matter, the learned Member gave the legal representatives for MK and MET leave to appear at the hearing for those parties.
5. [5]
   The power to award costs in applications instituted under the Powers of Attorney Act 1998 (Qld) (“the POA Act”) resides in section 125 of that Act.  That section says:

(1) The costs of a proceeding are within the court’s discretion.

(2) However, unless the court otherwise orders, costs follow the event.

6. [6]
   The reference to a Court is read to be a reference to this Tribunal as, under section 109A of the POA Act, QCAT is given the same jurisdiction and powers for enduring documents as the Supreme Court.
7. [7]
   There were four applications before the learned Member.  They were:

   1. (a)
      An application for a declaration about MET’s capacity – MJ alleging that she did not have capacity;
   2. (b)
      A miscellaneous application about an Enduring Power of Attorney – MJ alleging the document was not valid and seeking to have MK removed as Attorney;
   3. (c)
      An application for directions by MJ to have MET’s cognition assessed; and
   4. (d)
      An application for a non-publication order. 
8. [8]
   The first two of these applications were brought by MJ under the POA Act.  He states this in his letter to the Tribunal dated 13 January 2020. The third application is taken by me to also be an application under s 111 of the POA Act, as there were no applications by MJ under the Guardianship and Administration Act 2000 (Qld) (“the GAA Act”).
9. [9]
   The final procedural application is taken by me to have been under section 108 (non-publication order) of the GAA Act. 
10. [10]
    All applications were dismissed by the learned Member after a finding by him that MET had capacity for all matters.  The non-publication order was dismissed by the learned Member in his oral reasons on the basis that “the application did not meet the threshold for such application”.
11. [11]
    A determination about the applications for costs by this Tribunal for the first three applications is under the POA Act which states that unless this Tribunal otherwise orders, costs follow the event.  Prima facie, MJ should pay the costs of the other active parties that relate to the first three applications.
12. [12]
    Is there any reason for this Tribunal to exercise my discretion to change this outcome?
13. [13]
    MK in his submissions submits I should have regard to the provisions of the QCAT Act in relation to costs.  I do not accept this submission.  The POA Act gives this Tribunal a wide discretion, not fettered in any way.  However, the matters outlined in the submission of MK are matters I can take into account when considering the exercise of my discretion.
14. [14]
    MK submits the discretion should be exercised because:

    1. (a)
       MJ provided no evidence to support his assertions that MET had lost capacity and refused to acknowledge the medical evidence provided to show that MET had capacity;
    2. (b)
       The matter of MET’s capacity had been determined in the report from the complaint MJ lodged with the Office of the Public Guardian in a thorough and extensive investigation and MET was found to have capacity.  MJ did not discontinue his applications after this finding was published, filing two further applications after that date;
    3. (c)
       The applications under the POA Act were groundless and unsupportable in fact.
15. [15]
    MK fixes his costs at $9,713.15.   
16. [16]
    MET also seeks her costs from MJ. She says:

    1. (a)
       MJ was on notice as early as 10 June 2020 that MET’s position was that she retained capacity;
    2. (b)
       The only evidence before the Tribunal was the report of Dr CC dated 21 June 2019 which determined MET had capacity. MJ had this report before commencing the proceedings;
    3. (c)
       No further evidence was presented by MJ rebutting the presumption of capacity;
    4. (d)
       MET is a pensioner and has been put to considerable expense to obtain representation in the proceedings;
    5. (e)
       MJ’s application should be properly described as frivolous.
17. [17]
    MET fixes her costs at $4,022.70.
18. [18]
    In response to these submissions, MJ says:

    1. (a)
       The report of the Office of the Public Guardian made no findings as it was concluded that the presumption of capacity had not been rebutted;
    2. (b)
       His applications were neither vexatious or frivolous or lacking in detail;
    3. (c)
       MJ submits this Tribunal can only make a cost award against him if I am satisfied the application was frivolous, vexatious, fraudulent or without proper justification. 
19. [19]
    I disagree with MJ’s final submission.  I am not bound in the exercise of discretion solely to the findings he suggests. The exercise of my discretion is dependent on the facts and circumstances in each matter and the starting point is that MJ will pay the other active party’s reasonable costs – in accord with the section of the POA Act. 
20. [20]
    My reasons for this are:

    1. (a)
       MJ provided no evidence to support his assertions that MET had lost capacity and did not reasonably acknowledge the medical evidence available to him and the findings of the investigation report of the Public Guardian.  Without evidence to the contrary, MJ’s applications could not succeed and in my view, he unreasonably failed to acknowledge these findings or the inevitable outcome;
    2. (b)
       MET is a pensioner and she and MK have been unreasonably required to meet applications which MJ should have known had no foundation.
21. [21]
    A costs order is not made to penalise MJ for bringing his applications but to reimburse the expense incurred by the active parties (MET and MK) in responding to those applications.
22. [22]
    It is fair that the active parties are reimbursed in this case in view of the finding made by the Tribunal that MET had capacity.  Based on the evidence provided to the Tribunal, MJ should have had a reasonable expectation that the active parties would attend the hearing and oppose all the applications. MJ did not provide any objective evidence in support of the orders he sought.
23. [23]
    I see no reason to depart from the rule that costs follow the event.  I am not prepared to exercise my discretion to depart from the general rule contained in section 125 of the POA Act.
24. [24]
    The final application for a non-publication order was brought under the GAA Act.  This also failed.  The Tribunal commented “the application did not meet the threshold for such application”.  The learned Member did take submissions from the parties on this order but it did not take a substantial amount of time before the Member and was dealt with in a brief window just before the end of the hearing.
25. [25]
    Costs under the GAA Act are governed by section 127 of that Act.  This section provides that each party bear their own costs although the Tribunal may award costs in exceptional circumstances. 
26. [26]
    I am not satisfied the exchange between the parties and the learned Member was so out of the ordinary and so long as to require me to make a finding of exceptional circumstances. This application was dealt with on submissions.  All parties were aware of  the confidentiality requirements of section 114A of the GAA Act, governing the prohibition against identifying the adult’s identity in proceedings. The learned Member was satisfied this prohibition was sufficient in this matter.
27. [27]
    In the circumstances, I am satisfied that for this application, the general rule should apply, that is, each party should bear their own costs. 
28. [28]
    How are costs to be assessed?
29. [29]
    I am satisfied that I do justice to the parties and give finality to this matter by making an overall assessment of the costs to be awarded to MET and MK.  I will reduce the costs sought in each matter by 25% to reflect the findings I have made above regarding the four applications.  I also take into account that a reading of the transcript highlights ongoing conflict between MK and another Attorney, MP. Time in the hearing was taken up with discussions by the Member with these parties on that matter. This conflict was outside the applications made by MJ
30. [30]
    MET applies for costs of $4,022.70. 75% of this amount is rounded to a figure of $3,017.00. MJ will be ordered to pay MET that amount within 14 days of this order.
31. [31]
    MK applies for costs of $9,713.15.  75% of this amount is rounded to a figure of $7,284.00.  MJ will be ordered to pay MK that amount within 14 days of this order.