WJ[2021] QCAT 450

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   WJ was the subject of a hearing in the Tribunal’s guardianship jurisdiction following an application from his daughter, WA.
2. [2]
   WA considered her father lacked capacity for decision making as a result of:

   1. (a)
      His alleged hoarding behaviour
   2. (b)
      His changing his Enduring Powers of Attorney
   3. (c)
      His alleged lack of understanding of Trusts set up to benefit particular individuals as part of his estate planning to the detriment of WA
   4. (d)
      His changing of mind regarding how WA was to be treated financially and involved in his affairs
   5. (e)
      His alleged tiredness and stress caused by his hospitalisation for prostate cancer and subsequent physical disability (paraplegia)
   6. (f)
      His being allegedly subject to undue influence from his solicitor and his siblings
3. [3]
   These factors were on a background of a long, inconsistent and irregular father/daughter relationship which the Tribunal considered fragile, WA taking an overly intrusive interest in WJ’s financial affairs, WA withholding documents from her father, his making a generous gift to WA, and WA engaging in discussions with WJ in a way the Tribunal considered bordered on harassment.
4. [4]
   It is highly relevant to this matter that WJ had assets potentially worth several million dollars. Following his hospitalisation in late 2018 and the establishment of the Trusts he created in 2019, he essentially divested himself of most of his assets. The Tribunal had some initial concerns about WJ’s lack of understanding of the Capital Gains Tax implications of these divestments and questioned WJ extensively about these matters and the implications for him and others of the trusts. However, WA produced no independent evidence from a health professional which indicated any lack of capacity.
5. [5]
   The Tribunal heard the application over several days in 2020 and made the following orders on 3/2/2021:

1. (a)
    The application by WA for the appointment of a guardian for WJ is dismissed.

2. (b)
    The application by WA for the appointment of an administrator for WJ is dismissed.

3. (c)
    The following Enduring Powers of Attorney for WJ are declared valid pursuant to s 113(1) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

1. (i)
    The Enduring Power of Attorney dated 13 November 2019 appointing RC and WD as attorneys for personal and health matters.

2. (ii)
    The Enduring Power of Attorney dated 13 November 2019 appointing RC and WD as attorneys for financial matters.

6. [6]
   The Tribunal gave extensive reasons for its decision (WJ [2021] QCAT 30).
7. [7]
   WJ was represented at the hearing by Mr RT Whiteford of Counsel assisted by Ms KJ Kluss of Counsel and instructed by Mr C Kohler of Ellison Moschella & Co.
8. [8]
   WJ has applied to the Tribunal for an order for costs of the representation. He seeks that costs be assessed with reference to the District Court scale rather than be fixed by the Tribunal.
9. [9]
   The relevant legislation that applies to this application is set out below.
10. [10]
    Section 127 of the Guardianship and Administration Act 2000 (Qld) provides:

Costs

3. (1)
    Each party in a proceeding is to bear the party’s own costs of the proceeding.

3. (2)
    However, 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.

3. (3)
    Also, the following provisions of the QCAT Act, chapter 2, part 6, division 6 in relation to costs apply to the tribunal for proceedings under this Act—

1. (a)
    section 101;

2. (b)
    sections 103 to 109.

11. [11]
    Section 101 of the QCAT Act relates to a child's application and therefore is irrelevant here. To the extent sections 103 to 109 apply, they will be addressed later in these reasons, although it should be noted that section 103 provides the Tribunal should fix costs where possible.
12. [12]
    Returning now to section 127, what constitutes an exceptional case is a matter of discretion and is to be considered on a case-by-case basis according to the facts and circumstances of the case^[1].
13. [13]
    To be exceptional, the case has to be unusual or out of the ordinary, including where QCAT considers the application to be frivolous or vexatious.^[2] QCAT must be satisfied on the balance of probabilities that there are exceptional circumstances, considering the legislation, the actions of the applicant and parties overall.^[3] The Tribunal needs to consider whether there are exceptional circumstances not merely if the application is frivolous or vexatious. These are examples only. In this regard we consider we are entitled to look beyond the application and consider all the circumstances of this matter including how the application was prosecuted. We reject the submissions of WA on this point that we need only consider the application.
14. [14]
    WA submits that a matter will be frivolous where it is unsupportable in law, discloses no action or is groundless.^[4]
15. [15]
    WJ admits that a proceeding will be vexatious where there is:^[5]

    1. (a)
       legal action without any reasonable grounds;
    2. (b)
       repetition of arguments which have already been rejected;
    3. (c)
       persistent attempts to abuse the legal process; and
    4. (d)
       harassment and annoyance of a party in litigation that lacks any reasonable basis.
16. [16]
    Merely having a ‘weak’ case may not be considered exceptional. It is not an uncommon event that applications are dismissed by the Tribunal as the evidence is found not to amount to a rebuttal of the presumption of capacity. It is not exceptional for such an outcome to occur.^[6]
17. [17]
    A costs order is not made to penalise an applicant but to reimburse the expenses incurred by the active parties in responding to that application, and therefore there is a high bar for QCAT to make a costs order.^[7] Where the subject matter of the applications is neither frivolous nor vexatious and the proceeding was appropriately brought, QCAT may decline to make a costs order despite the application ultimately being unsuccessful.^[8]
18. [18]
    A costs order has been made where:^[9]

    1. (a)
       the applicant should have had a reasonable expectation that the active parties would attend the hearing and oppose the application;
    2. (b)
       the application was unfounded and unreasonable in the face of evidence, especially where the substitute decision-makers were acting appropriately;
    3. (c)
       the applicant did not provide any objective evidence in support of the application such that in the absence of evidence the application was likely to fail; and
    4. (d)
       the applicant failed to give notice prior to the commencement of the hearing that the application would be withdrawn.
19. [19]
    In this matter, the first 3 of those factors were present.
20. [20]
    QCAT also has scope to order that the costs order be towards all or part of the costs incurred by the other active parties to ensure that the overall order is fair.^[10]

Why WJ says a costs order should be made against the applicant WA

21. [21]
    The case of THV is analogous to the present matter. In that case, the applicant sought to be appointed as both guardian and administrator for her father. The applicant’s applications were dismissed on the basis the applicant’s father had capacity to execute an enduring power of attorney appointing his friend as attorney. The applicant had argued that her father lacked capacity to make the enduring power of attorney. In awarding costs against the applicant, the Member relevantly found:

    1. (a)
       the applicant held genuine concerns for her father;
    2. (b)
       notwithstanding these genuine concerns, the applicant had no medical evidence to support her application;
    3. (c)
       all of the medical evidence of which the applicant was aware indicated her father had capacity to make decisions at the time he made the enduring power of attorney, and that he continued to have capacity at the time of the hearing;
    4. (d)
       although the application was not vexatious, it was “essentially groundless and unsupportable” and arguably frivolous;
    5. (e)
       the applicant did not present any evidence to support her contention other than her own observations and hearsay conversation of a couple of other people;
    6. (f)
       the applicant’s continuation of her substantive application (particularly after the registry alerted her to her lack of medical evidence) was not reasonable;
    7. (g)
       the application had put the adult to considerable expense unnecessarily;
    8. (h)
       the material weighed in favour of the case being an “exceptional” one;
    9. (i)
       in the circumstances, the applicant ought to pay her father’s costs, which were to be assessed under rule 87(2) of the QCAT Act with reference to the District Court Scale.
22. [22]
    WJ further submitted that every application made by WA has been dismissed by the Tribunal including a number of interlocutory applications.
23. [23]
    He further argues that despite being advised by the registry she was required to provide medical evidence to progress the matter, she presented no evidence apart from her own opinion.
24. [24]
    Noting the Tribunal’s conclusions in its reasons for decision, WJ submits that:

    1. (a)
       the Applicant failed to convince the Tribunal that the Adult did not have capacity to execute enduring powers of attorney in April 2019 and November 2019;
    2. (b)
       the Applicant failed to convince the Tribunal that the Adult did not at the time of the hearing have capacity to make decisions about his personal and financial matters;
    3. (c)
       the capacity assessments conducted by the medical experts, Dr Zuscak and Professor Morris, were “quite comprehensive” and their conclusions were consistent with the views of the trained nurses and others who had contact with the Adult in hospital and who provide care to him in the residential aged care facility in which he presently resides;
    4. (d)
       that the Adult had, at the relevant time, capacity was supported by the evidence of:

       1. the two medical experts;
       2. the trained nurses in the hospital;
       3. the trained nurses in the residential aged care facility;
       4. the Adult’s brother and sister;
       5. the Adult’s solicitor of many years.
25. [25]
    WJ criticizes the applicant’s evidence as it relates to capacity as follows:

    1. (a)
       she selectively presented evidence;
    2. (b)
       she allegedly suspected the Adult’s capacity whilst accepting a sum of $360,000.00 from the Adult (the Tribunal does not accept this submission as the gift was made in February 2019);
    3. (c)
       she accepted the validity of the enduring power of attorney made in April 2019, despite her purported belief that he lacked capacity at that time;
    4. (d)
       she encouraged the Adult to amend his Enduring Power of Attorney in November 2019, despite her purported belief that he lacked capacity at that time;
    5. (e)
       she asked a nurse to monitor the Adult’s blood pressure in anticipation of subjecting the Adult to a distressing discussion relating to the return of his personal financial documents;
    6. (f)
       a finding that the Adult lacked capacity would personally benefit the applicant as it would have improved her prospects of obtaining a larger inheritance from the Adult’s estate by way of a family provision application.
26. [26]
    WJ submits that exceptional circumstances exist in this matter to justify the applicant paying his costs. These include the previously mentioned matters in addition to the applications being frivolous because:

    1. (a)
       the Applicant was informed by the QCAT Registry at the commencement of the proceeding that she would need medical evidence to support her applications;
    2. (b)
       the Applicant continued the substantive applications notwithstanding the Tribunal’s advice as to the evidence that would be required to progress her applications and the fact she had no medical or other evidence to support her applications, save for her own opinion, which was unqualified and motivated by self-interest in maximising the benefit she might receive from the Adult’s estate upon his death;
    3. (c)
       there was clear expert medical evidence in favour of the Adult’s capacity, which the Applicant was aware of prior to the hearing;
    4. (d)
       none of the Applicant’s submissions against the Adult’s capacity were accepted by the Tribunal.
27. [27]
    He also submits the applications were vexatious because:

    1. (a)
       the Applicant’s applications were commenced in the absence of any reasonable grounds and in ignorance of advice provided by the Tribunal as to the evidence she would require in order to progress the proceeding;
    2. (b)
       the Applicant persistently abused the legal process by:

       1. filing nine interlocutory applications and three substantive applications, all of which were dismissed by the Tribunal;
       2. holding herself out to have relevant expertise in the area of capacity assessment, when in fact she was an organisational psychologist, and not a clinical psychologist, and had no demonstrated experience in assessing capacity.
    3. (c)
       the applications were a continuation of the Applicant’s campaign of harassment against the Adult, which was evidenced in her:

       1. persistently recording the Adult without his consent and despite his requests not to be recorded;
       2. taking and refusing to return the Adult’s personal financial documents;
       3. engaging in discussions with the Adult which she knew would or might adversely affect the Adult’s physical health, namely, his blood pressure;
       4. admitting to “conducting an experiment to determine the level of pressure needed to get [the Adult] to do something”;
       5. insisting on having her mother, being the Adult’s ex-wife, as her support person throughout the hearing in circumstances where she was aware of the acrimonious nature of the Adult’s relationship with his ex-wife.
28. [28]
    WJ submits that the applicant’s motivation in commencing this proceeding appears to have been to reverse the transactions “which minimized the adult’s estate in order to maximise any benefit she might receive from his estate upon his death.”
29. [29]
    WJ suggests WA could have conferred with Dr Zuscak and Professor Morris about their report if she had concerns. Perhaps she could have but it would have been unlikely to change her strong views.
30. [30]
    The Tribunal notes that the applicant could have chosen to discontinue her case having received all the health professional reports. She simply did not accept them. In fact, from the Tribunal’s perspective, she sought unsuccessfully to discredit them.
31. [31]
    We agree with WJ’s submissions that the conduct of Mr Moschella is irrelevant to the costs application but note that, had he not made basic errors, the hearing would have been a little shorter as questioning of him and WJ would have been shorter. We accept he did not stand to benefit from the outcome of the hearing. We agree that his conduct at the hearing did not contribute to WA’s distress.

Why WA says the costs application should be dismissed

32. [32]
    WA submits that the decision of THV [2017] QCAT 116 in which the Tribunal awarded costs against the applicant is distinguishable from this matter in these ways:

    1. (a)
       The applicant in THV had nothing to do with the adult at the relevant time compared to WA who had regular contact during 2019 and 2020.
    2. (b)
       WA was not relying on hearsay in relation to the keeping of urine. The applicant in THV did rely on hearsay. The Tribunal agrees with these submissions.
33. [33]
    WA submits that section 127 of the Guardianship and Administration Act establishes a two step process if costs are to be awarded. She argues that the Tribunal must first conclude there are exceptional circumstances and second there is a residual discretion which comes from the use of the word “may” in section 127 (2). She further submits that there is a distinction to be made between the application itself and the prosecution of the application and argues that the two examples given of exceptional circumstances in section 127 (2) relate to the application itself but not to the manner or way in which the application is prosecuted.
34. [34]
    The non-exhaustive examples of exceptional circumstances she notes, are if the Tribunal considers the application is frivolous or vexatious. She argues that section 47 of the QCAT Act grants a discretion to dismiss proceedings if the Tribunal considers the proceedings were unjustified including if they are considered to be frivolous or vexatious. She notes that section 48 considers the situation once an application is commenced if that a party to a proceeding acts in a way that unnecessarily disadvantages another party to the proceeding. Section 48 it is argued refers to vexatiously conducting the proceedings but there is no reference to frivolously conducting the proceedings. The Tribunal does not accept the submissions in relation to costs relating to an application only. It agrees with WJ who submitted:

    1. (a)
       the Applicant does not cite any authority to support the submission that, for the purposes of the Tribunal determining whether to order costs under s 127 of the GAA, there is a distinction to be made between the application itself, as a document filed in the Tribunal, and the way that application is prosecuted;
    2. (b)
       such an interpretation is also inconsistent with, and overcomplicates, the plain reading of s 127. The section must be read as a whole:

       1. subsection (1) refers to “costs of the proceedings”;
       2. the word “application” in subsection (2) is used in the context of an “admittedly non-exhaustive list” of examples of circumstances in which the Tribunal might order an applicant to pay an active party’s costs, from which it is to be reasonably inferred that there are other circumstances in which the Tribunal may award costs under s 127 of the GAA;
       3. subsection (3) refers to “costs…for proceedings”.
35. [35]
    Reference was made in WA’s submissions to the decision of BB^[11]. In that matter the Tribunal dismissed each of the allegations and made no findings that were critical or unfavourable to the Respondent’s conduct in an application seeking relief from alleged breach of human rights. No costs were ordered to be paid. BB, in our view, is not relevant here.
36. [36]
    Submissions are made in relation to the fixing of costs referring to section 107 of the QCAT Act. WA’s submissions are critical of the approach taken by WJ in declining to quantify his costs and not giving reasons for why the costs are sought to be fixed. In any event her submissions argue strongly that the Tribunal should fix costs if costs are to be ordered. We agree. It would be putting parties to considerable extra expense and delay to have this matter assessed.
37. [37]
    WA states it is open to question whether the Tribunal can make a partial costs order as section 127 (2) does not specifically provide for the Tribunal making an award of costs with respect to only some issues in the matter. We agree with WJ’s submission that the Tribunal can make a partial costs order, but we do not rely on section 102(1) of the QCAT Act but rather the discretion available in section 127 of the Guardianship and Administration Act 2000 (Qld). Section 102 does not apply.
38. [38]
    Section 107 it is argued allows the Tribunal to fix costs such that the section might allow the Tribunal to effectively only award costs for part of the proceedings. In fact, in the matter of BXE (2015) QCAT as well as FG [2011] QCAT 178 [16], this actually occurred. WA submits that the Tribunal should not consider the costs application applies to the interlocutory applications arguing that applications for costs should be made at the time they were heard and determined by the Senior Member before whom those applications were contested. It is argued that it is an abuse of process to not ask for costs at the time of an interlocutory hearing and section 106 should not be used to try to revive these matters arguing that at the very least these orders should be excluded from the current applications for costs. We do not agree and accept the arguments in paragraph 8(g) of WJ’s submissions regarding the interlocutory applications being taken into account.
39. [39]
    WA argues that the information before the Tribunal relating to capacity was equivocal and that there was evidence being put forward that would weigh the balance in favour of the Adult’s having capacity but that there significant parts of medical reports that would weigh in the balance against capacity. The Tribunal will make observations in this regard as part of its conclusion.
40. [40]
    WA argues that the Tribunal should have been alerted towards the end of the proceedings that Adult may bring an application for costs. This is what usually happens in guardianship matters. It did not happen in this case. The Applicant argues that new proceedings have been commenced and that the Tribunal is functus officio. For reasons briefly outlined in the Tribunals conclusions we reject this argument. There are further arguments in that section of the submissions of WA which refer to delays. There certainly were delays in this matter but they were essentially caused within the registry and not the fault of WJ. WA argues she was not aware costs could be awarded. This argument is rejected. She was put on notice on 15/7/2020 prior to the hearing of the matter that WJ was seeking costs of $5,000 if WA’s applications filed on 20/6/2020 were dismissed. In any case it is not a relevant argument.
41. [41]
    WA argues that the abrupt change in her father’s behaviour was consistent with overbearing conduct or undue influence or a lack of capacity indicating that she had no other way of knowing what pressures others were placing on WJ. However, in a lengthy discussion in November 2019, she went to extraordinary lengths to influence her father on a range of matters. She failed. This should have alerted her to his being able to resist undue influence. It is argued in the submissions that what took place was an elaborate and legally complicated series of manoeuvres far beyond the previous financial planning of the Adult. This is speculation.
42. [42]
    In its original reasons for decision the Tribunal laid out why it considered WJ had changed his mind and it was as a result of the overbearing nature of WA’s behaviour towards him, her argumentativeness and her lack of cooperation. The Tribunal totally rejects the submission that BAR (2018) QCAT 278 decided by Member Joachim is analogous. In that matter two psychologists gave evidence. One was requested to provide a supplementary report which the Tribunal considered indicated that BAR had issues with his insight and his ability to deal with overbearing behaviour as well as a lack of consideration of the consequences of decisions. The evidence of a solicitor Mr Campbell was vital to the outcome of the matter in which BAR was found to lack capacity. It was not the case that Mr Campbell’s evidence was put to the psychologists as claimed in paragraph 48 of WA’s submissions. The psychologists had well and truly left the hearing by the time Mr Campbell gave evidence. The psychologist who changed her mind from her original report did so without the knowledge of Mr Campbell’s involvement. The supplementary report of one of the psychologists was much more consistent with the balance of the evidence including the evidence of Mr Campbell and BAR’s adopted children.
43. [43]
    There are submissions relating to Mr Moschella’s actions as WJ’s solicitor suggesting the adult did not receive completely competent and disinterested advice. If this is so, it does not mean he is being unduly influenced or lacks capacity. Referring again to the matter of THV, WA submits that that application was filed whilst the applicant was aware of independent reports of two doctors. She says that does not apply here and that the medical reports were obtained only after the applications were filed. The material on the file obtained by WA and the applicant prior to the hearing, shows repeatedly that a range of health professionals considered that there were no issues with WJ’s capacity. This will be addressed further in the Tribunal’s conclusions.
44. [44]
    WA submits that the Tribunal had discretion to dismiss the proceedings if they considered that the proceedings were unjustified including if those proceedings were considered to be frivolous or vexatious. It is also argued that if the proceedings were being conducted in a way that caused disadvantage they could have been ended early under section 47 or 48 of the QCAT Act. It is argued that QCAT could have exercised those powers rather than putting the respondent adult to the possibly significant cost of defending the proceedings if it was that obvious that the proceedings were frivolous. The Tribunal rejects the submissions at paragraph 59 regarding the hearing concluding on 30 October 2020 and the reasons for decision being delivered on 3 February 2021, begging the question as to why a very experienced Tribunal took 3 months to deliver the reasons and why the reasons extend to 24 pages if the matter was frivolous. In this regard it should be noted that whilst the hearing concluded on 30 October 2020, parties had until 11 December 2020 to provide final submissions. The length of the reasons was designed to give WA a very clear explanation as to why she had lost. WA argues that “the badge of frivolousness does not sit obviously on a proceeding that the Tribunal itself entertained for so long and did not, for instance, itself exercise its powers to either manage the hearing so it took less time or to even strike it out under sections 47 or 48 of the QCAT Act as discussed above”.
45. [45]
    The Tribunal is mindful to ensure an applicant has an opportunity to present his or her case and does not expose itself unnecessarily to the prospect of an appeal on the basis that natural justice was denied. The Tribunal in its reasons for decision also outlined at paragraphs 155 and 156 matters that contributed to the length of the hearing.
46. [46]
    Most of these related to the way in which WA engaged with the Tribunal and presented her case. WA argues that the Tribunal must exercise a discretion in order to order costs where exceptional circumstances have been shown. It is argued by WA that if the Tribunal concludes that the case does constitute exceptional circumstances then this is far from the most egregious of such cases. It is also submitted that it is relevant that WA would likely suffer significant financial hardship if a costs order is made and that the adult would not suffer any hardship if costs orders were made. The submission refers to a HECS debt of more than $20,000.00 and a debt of $55,000.00 on her flat. During the initial hearing the Tribunal was advised that WJ had given WA a gift of $360,000.00 on 28/2/2019 which was to be used to pay off her HECS debt and pay off the loan on her residential accommodation. Part of this gift was to allow WA to buy some air conditioning for her unit. It is therefore surprising to the Tribunal that $75,000.00 of debt remains. It is also argued that WJ is extremely wealthy and did not say he had an expectation that his costs would be paid. This will be commented on in the Tribunal’s conclusion.
47. [47]
    The submissions of WA also criticise the actions of Mr Moschella referred to in the Tribunal’s original reasons. It is argued that aspects of this contributed significantly to the matters in dispute and therefore the length of the hearing because they had to be investigated with a number of witnesses. The Tribunal accepts that whilst it added to the length of the hearing it was not significant and there was no impact on the assessors as a result of Mr Moschella using inappropriate language and disparaging the applicant in instructing the assessors. A supplementary report was obtained from the assessors when they were given a fuller picture of Mr WJ’s financial position.
48. [48]
    The submissions refer to some aspects of the serious shortcomings of the adult’s case or the partial failure of some aspects of the adult’s case. These are not elaborated on to any extent and the Tribunal does not understand those submissions.
49. [49]
    In relation to discretion, the submissions continue that the Tribunal would be extremely reluctant to make a practice of awarding costs against self-represented applicants where the applicant was not put on notice by either the legal representation of the other party or the Tribunal that there could be a costs order made. In this regard the submissions argue that the Tribunal perhaps should have done this because section 29 requires the Tribunal take all steps necessary to ensure each party understands the practice and procedure of the Tribunal. The Tribunal rejects this. The applicant was put on notice in relation to some costs as noted earlier.
50. [50]
    The Tribunal agrees with the later submissions that the Tribunal would potentially be acting improperly by raising that matter of its own volition in a hearing.
51. [51]
    The final set of submissions made by WJ is that the Parliament has set a high bar for an entitlement so as not to discourage worthy cases and that WJ chose to employ such a big legal team. This will be commented on later.
52. [52]
    It was submitted that there were no novel or complicated issues of law in this case and that it was completely unexceptional.

The Tribunal’s Conclusion

53. [53]
    The Tribunal, pursuant to section 106 of the QCAT Act, is able to award costs at any stage of a proceeding including after the proceeding has ended. Consequently, we reject the arguments about the Tribunal being functus officio. The costs application has been appropriately brought under the legislation.
54. [54]
    Section 107 of the Act provides that the Tribunal must fix the costs if possible or if not possible, make an order that costs be assessed. The Tribunal directed that WJ’s costs be broken down in order to understand Ellison Moschella & Co charges and the charges of the engaged barristers, Mr RT Whiteford and Ms KJ Kluss.
55. [55]
    It is highly unusual in the Guardianship jurisdiction of this Tribunal for any active party, including the adult, the subject of the application or the applicant to have 3 legal representatives.
56. [56]
    This matter revolved around the adult’s capacity and if found to be impaired, whether there was a need to appoint a guardian or administrator or whether one of the enduring documents was valid and adequate for substitute decision making.
57. [57]
    This is “bread and butter” for this Tribunal and the Tribunal agrees with the applicant’s submissions that there were no novel or complicated issues of law or fact in this case.
58. [58]
    That WJ chose to engage 3 persons to represent him as his legal team is a matter for him. In a jurisdiction where the presumption is that parties represent themselves, it is a high bar to climb over to be successful in a costs application for the costs of a 3 person legal team to be met.
59. [59]
    In the Tribunal’s view a competent solicitor could have more than adequately represented WJ. It did not require a team of 3 lawyers which included 2 barristers. The Tribunal finds it extraordinary that WJ has spent almost $410,000 in legal and associated costs. This is unprecedented in our experience in the life of the guardianship legislation in Queensland which began in 2000.
60. [60]
    The applicant's case was weak but that is insufficient alone to grant costs. The hearing was very lengthy due in large part to the applicant's approach to prosecuting her case, including her inability to do so efficiently and effectively. Moreover, it is open to conclude she did not have an arguable case as she had no evidence from health professionals that WJ lacked capacity. She had only her opinion.
61. [61]
    In regard to the length of the hearing, we quote from our original decision.
62. [62]
    The Tribunal notes that a number of rarely seen factors in Guardianship matters contributed to the length of the hearing, including:

    1. (a)
       The many hundreds of pages WA submitted as part of her case including submissions at various times during the proceedings, photographs, lengthy statements with extensive appendices and transcripts of taped conversations with her father;
    2. (b)
       The need for breaks for WA to compose herself when she became distressed during the hearing, when either questioning witnesses or during cross-examination;
    3. (c)
       The need for the presiding member to intervene regularly when WA was questioning the witnesses because she had difficulty forming her questions;
    4. (d)
       The adversarial nature of this proceeding;
    5. (e)
       The unusually large number of witnesses; and
    6. (f)
       The extensive examinations of WJ and WA.
63. [63]
    It can be said that the large number of witnesses was due to the applicant requesting them for examination.
64. [64]
    The matter of THV is distinguishable from this matter in a number of ways. Firstly the applicant in THV had not seen her father in months whereas WA had regular contact with her father during 2019.
65. [65]
    Secondly whilst WA had genuine concerns about her father’s capacity she was unable to get a health professional to prepare a report for the Tribunal. In THV more than 1 report attesting to capacity was available to the parties. The Tribunal notes there were references in the health professional notes in WJ’s matter that opined they were not concerned about his capacity. WA had access to this material. She saw an abrupt change in WJ’s attitude towards her. She put this down to his being subject to the undue influence of others. The Tribunal did not accept this argument at the substantive hearing and does not accept it now. The change was as a result of WA’s behaviour and overbearing conduct.
66. [66]
    The Tribunal agrees that the better approach to an application for costs would have been for WJ’s legal team to flag an intention to apply prior to the end of the hearing on 30/10/2021. This is the usual practice. Alternatively, this could have been flagged in subsequent written submissions. Neither happened. Had this happened, the constituted Tribunal would have made directions setting out a timetable for the application and receipt of submissions. This would have expedited the process.
67. [67]
    As it happened WJ submitted an application for costs received by the Tribunal on 25/2/2021, some 22 days following the Tribunal’s decision. Earlier on 18/2/2021 Mr Kohler foreshadowed an application. Unfortunately, WJ’s application languished in the Tribunal registry for over 3 months before a directions hearing on 12 July 2021, prior to which further interlocutory applications were made. There were a series of further directions hearings and applications from WA to extend time.
68. [68]
    The delays were not of WJ’s making apart from there being no application for costs foreshadowed at the conclusion of the hearings in October 2020, or in the subsequent submissions.
69. [69]
    The written health professionals material before the Tribunal consists of ACAT reports, medical records from the Gold Coast University Hospital, the reports of Dr Zuscak and Professor Morris, as well as medical and nursing reports from Blue Care. Whilst there is occasional references to agitation, depression, anxiety and sleep deprivation, references to cognition, alertness or orientation say there is no concern. The Tribunal rejects the arguments advanced by WA at paragraph 36 of her submissions that “significant parts of the medical reports dealt with matters that would weigh in the balance against capacity”. We disagree. WA had this material prior to the hearing commencing on 10/8/2020. It is obvious to the Tribunal she did not accept this in the circumstances of her father’s situation.
70. [70]
    There is nothing in the relevant legislative provisions that indicates we need to consider the applicant’s financial position. This is a relevant consideration under section 102 of the QCAT Act. This section is specifically excluded when considering costs under the Guardianship and Administration Act 2000 (Qld). WA argues we have to necessarily exercise discretion because of financial hardship for her if a costs order was made, noting that WJ is extremely wealthy. We do not consider we have to necessarily exercise discretion in this regard because when the QCAT Act was passed by the Parliament, section 102 was not included as a matter for consideration in Guardianship cost matters.
71. [71]
    The Tribunal agrees substantially with the submissions made by WJ at paragraph 17(e), (i) to (vi) of his original submissions referred to in paragraph 21 of these reasons. The Tribunal fails to understand WA’s position re capacity in these circumstances. If she believed her father lacked capacity, she should not have entertained the activities outlined in relation to the 2 Enduring Powers of Attorney or the anticipation of her father’s blood pressure increasing.
72. [72]
    Weighing heavily against WA in whether there are exceptional circumstances and if a costs order should be made are the following:

    1. (a)
       She could produce no independent evidence regarding WJ’s incapacity in the face of considerable evidence he had capacity, this evidence being available to her prior to the commencement of the hearing. She could have withdrawn at that point. In our view, a reasonable person would have.
    2. (b)
       She produced volumes of irrelevant material for the Tribunal and WJ to consider.
    3. (c)
       She sought to extend the hearing by continually producing material and seeking to examine more and more witnesses that ultimately the Tribunal refused to entertain.
    4. (d)
       Her approach to prosecuting her case smacked of unpreparedness, illogical thinking and disorganisation.
    5. (e)
       On many occasions, she was unable to effectively and efficiently cross-examine witnesses which required the presiding member to reframe questions for her. Whilst the Tribunal expects to do this for unrepresented applicants, the extent to which this occurred in this matter was exceptional.
    6. (f)
       She relied on her own opinions regarding her father’s capacity.
    7. (g)
       She accepted an EPA in April 2019 and sought to influence her father to change another EPA (November 2019) at a time when she claimed he lacked capacity, which impacts on her credibility.
    8. (h)
       She was very emotional during the hearing requiring many breaks, thereby extending the hearing.
    9. (i)
       She produced no credible evidence of WJ being unduly influenced even though she may have thought it.
73. [73]
    We also note WJ did not seek to bring the hearing to an early end.
74. [74]
    The Tribunal accepts WJ’s submissions that a costs order in this case should alert both represented and unrepresented litigants that they are not immune to an adverse costs order if they prosecute their case in a wasteful and prolix fashion.
75. [75]
    There were some critical points in the proceedings. For example, when the EPA witness, Mrs Gallagher, gave her very comprehensive and unchallengeable evidence about WJ’s capacity to execute the November EPA. This evidence was given on 12/8/2020. WA could have withdrawn at this point.
76. [76]
    She could have withdrawn after the evidence of Dr Zuscak and Professor Morris in August 2020. She didn’t.
77. [77]
    We consider that on balance exceptional circumstances exist in this matter.
78. [78]
    We do not accept WJ’s submissions that costs should be assessed. We do not consider that the barristers’ costs should be taken into account here. We have taken the view that in accordance with section 107 we should fix the costs. We also do not take the view that all of the remaining costs should be granted.
79. [79]
    The Tribunal will grant partial costs in this matter. From the total costs table provided of $409,581.45, we note this takes account of a discount given of $29,943.98 which serves in the main, but amongst other things, to reduce to zero any costs associated with Mr Moschella’s being a witness. We will excise counsel costs of $145,139.61 and the vast majority of costs of the solicitors in dealing with counsel. This latter deduction is $13,175.05.
80. [80]
    Also excised are most of the costs in dealing with the NDIS and related matters ($323.95). Apart from the NDIS agreement, these dealings had no relevance to this matter.
81. [81]
    We also excise costs charged for a will review and for the JM legacy Trust ($95.70).
82. [82]
    We will allow costs of all medical expert fees ($9,850), the solicitor outlays ($90.83), and transcription and transcript costs totalling $25,353.06.
83. [83]
    We will be guided by the District Court scale of costs to fix the solicitor’s costs. The vast majority of Moschella Ellison’s legal fees are charged at $478.50 including GST. The District Court scale is $79.45 for examining/comparing and $80.60 for other attendances per quarter hour. There is some variation for Tribunal attendances. The Tribunal will use an average of $80 a quarter hour or $320 per hour which includes GST. This is 66.87% of what has been charged and this percentage will be applied to the legal fees of $229,147.95. We are inclined to use our discretion not to apply any additional percentage for care and conduct.

Allowed Costs Calculation

84. [84]
    Total legal fees charged from solicitors: $229,147.95.
85. [85]
    Costs excised:

NDIS dealings$323.95

Dealings with counsel$13,175.05

Will and JM Legacy Trust$95.70

Total$13,594.70

Net$215,553.25

Allow 66.87%$144,140.46

Add expert fees$9,850.00

Outlays$90.83

Transcript and transcription costs$25,353.06

Total$179,434.35

86. [86]
    The Tribunal orders that WA pay WJ’s costs fixed in the amount of $179,434.35.
87. [87]
    The Tribunal recognises that this order will be a significant blow for WA. It needs to be said, however, that the persistent pursuit of outcomes to satisfy one’s personal views and perspectives against a massive weight of contrary evidence in a matter does have consequences.