Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

ADU[2022] QCAT 149

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

ADU [2022] QCAT 149

PARTIES:

In applications about matters concerning ADU

APPLICATION NO/S:

GAA2492-21

GAA2497-21

GAA2498-21

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

26 April 2022

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Kanowski

ORDER:

DTA must pay costs to DTB in the amount of $2,178 by 31 May 2022.

APPEARANCES &

REPRESENTATION:

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

DTA is represented by Mr Jason Terry

DTB is represented by Mr Christopher Barnes of Barnes Law Group

REASONS FOR DECISION

Introduction

  1. [1]
    Certain people are referred to by pseudonyms in these reasons, for the sake of the privacy of the adult to whom the substantive proceedings related. Accordingly:
    1. (a)
      the adult whom the substantive applications concerned is referred to as ADU;
    2. (b)
      the adult’s daughter who lives in Queensland is referred to as DTA; and
    3. (c)
      the adult’s daughter who lives in New South Wales is referred to as DTB.
  2. [2]
    On 8 November 2021, at a directions hearing, I dismissed applications brought by DTA in respect of ADU. The dismissals were under section 47 of the QCAT Act. That section permits the tribunal to dismiss applications that are frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process. Mr Barnes then orally applied for costs for DTB under section 47(2)(c) of the QCAT Act.
  3. [3]
    I directed that DTB and DTA file written submissions on costs, and that the application for costs would then be decided on the papers. Mr Barnes filed submissions on behalf of DTB on 22 November 2021. Submissions in the name of DTA (though presumably prepared by Mr Terry) were filed on 29 November 2021.
  4. [4]
    Mr Barnes submits that the tribunal should order DTA to pay DTB costs in the amount of $8,140. DTA submits that either costs should not be awarded, or only $350 should be awarded.
  5. [5]
    I have decided to award costs of $2,178, for the reasons that follow.

Legislative framework

  1. [6]
    Section 47(2)(c) of the QCAT Act permits the tribunal to make a costs order against the party who brought the proceeding to compensate another party ‘for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding’.
  2. [7]
    As explained in Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627 (No. 2),[1] although it initially appears that a costs order under section 47 of the QCAT Act is available only as an alternative to dismissal, the better interpretation is that it is a power that can be used in addition to dismissal. Further, section 47 permits ‘a costs order to be made without the stricture of the usual rule under s 100, that the parties should bear their own costs, applying’.[2] Nonetheless, the factors set out in section 102(3) of the QCAT Act will ‘usually still be relevant to the exercise of the general discretion under s 47(2)(c)’,[3] or at least they may be useful.[4] The section 102(3) factors include, relevantly, whether a party is acting in a way that unnecessarily disadvantages another; the nature and complexity of the dispute; and the relative strengths of the claims made in the proceedings.
  3. [8]
    The tribunal took the view in Jodlowska v The Body Corporate for River View Terraces[5] that it is appropriate to award indemnity costs in a case where a proceeding is misconceived and has no real prospects of success. However, mere dismissal on such grounds has not been seen as sufficient to warrant indemnity costs in some other cases. In Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627 (No. 2), for example, the proceeding was dismissed under section 47 of the QCAT Act, but the tribunal did not consider ‘that there are special circumstances warranting an award of indemnity costs’.[6]
  4. [9]
    In my view, the distinction between standard and indemnity costs is not exactly apposite, because there is no scale of costs for proceedings in the tribunal. There is, therefore, no standard benchmark.
  5. [10]
    In any event, the guiding principle must be reasonableness: if costs are awarded, is it reasonable to allow the full amount claimed or only some lesser amount?
  6. [11]
    DTA submits that it was held in Belmed Pty Ltd v Nichols Constructions Pty Ltd[7] that no legal costs incurred prior to a grant of leave to be represented can be considered. I do not read the case as going that far. The tribunal did say that it would not in its discretion have made an award of costs in the event that it had found that the proceeding was lacking in substance, because leave had not been granted for legal representation when the costs were incurred. I do not, however, think the tribunal ruled out the possibility of making an award for such costs.
  7. [12]
    The tribunal made an award of costs in Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627 (No. 2)[8] even though leave for representation had never been granted. The tribunal regarded the incurring of costs as nonetheless reasonable, but it did reduce the award partly on the basis that the costs had been incurred in the absence of leave.
  8. [13]
    Finally, for the sake of completeness, I note that there is a similar power to dismiss an application under the Powers of Attorney Act 1998 (Qld), in section 123. It includes a power to order costs. Further, that Act provides in section 125 that costs follow the event, unless otherwise ordered. However, it is unnecessary to discuss those provisions further because the dismissal in this case was made under section 47 of the QCAT Act.

Background

  1. [14]
    The applications in question were commenced on 17 February 2021, and then amended on 16 April 2021. There were also applications for orders requiring third parties to produce documents.
  2. [15]
    The applications, and the written submissions filed in support, were lengthy and complex. There was reference to numerous legislative provisions. It is entirely understandable that DTB sought assistance from a lawyer to help her understand the applications and prepare to respond to them.
  3. [16]
    When subjected to trained analysis, however, DTA’s case lacked substance. For example, DTA sought declarations well outside the scope of the tribunal’s jurisdiction, about whether certain actions were consistent with social security provisions.
  4. [17]
    Further, declarations were sought that were on their face meaningless, such as that ‘the Powers of Attorney Act 1998 Queensland does not have the jurisdiction to …’.[9] Even if this were interpreted as seeking a declaration about the jurisdiction of the tribunal, what would be gained by the tribunal making a declaration – sought by the applicant in the proceeding – that it lacks jurisdiction to do something?
  5. [18]
    There was one aspect of the applications that appeared to have some potential traction. This related to ADU’s failure to deregister in the Queensland land titles registry an enduring power of attorney she had granted to DTA, after the enduring document had been revoked. There is an obligation for a principal to take reasonable steps to deregister a revoked enduring document.[10] Arguably this should have be done by DTB, as ADU’s current attorney, if ADU lacks the capacity to do it herself. However, no actual detriment to DTA by the failure to deregister has been identified.
  6. [19]
    Overall, however, the applications brought by DTA appeared to be an attempt to have matters that are or might be relevant in a civil action brought by ADU against DTA in the District Court of Queensland, through her current attorney DTB, determined in DTA’s favour in the tribunal prior to any trial in the court of the civil action. This would obviously involve an unnecessary duplication of proceedings.
  7. [20]
    Mr Barnes commented on the initial version of DTA’s applications in an email to the tribunal dated 18 March 2021.[11]  This email, which is a page in length, pithily captures the main points of criticism outlined above:

It is unclear exactly what the Application relates to or seeks to achieve.

The relief claimed by the Applicant in numbered paragraphs 3 and 4 on page 12 is again misconceived … In any case, these matters are already the subject of proceedings in the District Court of Queensland … In our submission, these matters are best dealt with by the District Court.

The balance of the relief [asks] QCAT to make declarations that certain actions … are not inconsistent with a completely irrelevant Social Security Act 1991. Such a declaration is not within the jurisdiction of QCAT.

  1. [21]
    In directions made on 10 June 2021, the tribunal had signalled that the applications may be dismissed under section 47 of the QCAT Act at a directions hearing.
  2. [22]
    On 7 October 2021 DTA sought leave to be represented by Mr Terry. The tribunal granted leave, for directions hearings only at that stage, on 11 October 2021.
  3. [23]
    On 3 November 2021 DTB sought leave to be represented by Barnes Law Group. The tribunal granted leave, for the upcoming directions hearing on 8 November 2021, on 5 November 2021.
  4. [24]
    The amount of costs sought by DTB, $8,140, is the total amount invoiced to her by Barnes Law Group for work done in connection with the proceedings on various dates between 18 March 2021 and 22 November 2021. Most of the work was done by Mr Barnes, at the hourly rate of $360 plus GST. The remainder was done by a secretary at a lesser hourly rate. The invoice indicates that Mr Barnes spent 11.5 hours on the matter prior to 5 November 2021; three hours on 5 November 2021 (the date leave for representation was granted); 5.5 hours on 8 November 2021 (the date of the directions hearing); and four hours preparing the costs submissions on 22 November 2021.
  5. [25]
    I note that the directions hearing itself lasted approximately 50 minutes, including the delivery of oral reasons for dismissing the applications.

The positions of the parties

Mr Barnes’ submissions

  1. [26]
    Mr Barnes submits that DTB had to respond to lengthy and changing applications prepared by a legally qualified person namely Mr Terry. DTB had no alternative but to engage a lawyer. It was necessary for a lawyer to review in detail not only the final applications, but also an earlier version, as well as earlier related proceedings. It is such an extreme case, involving in his view an abuse of process, that it is appropriate for DTB to be reimbursed for her full costs in preparing to respond to the proceeding.

DTA’s submissions

  1. [27]
    DTA, after surveying a number of authorities, submits that an award of indemnity costs is not justified in her case. She also emphasises that a substantial portion of the costs were incurred before DTB sought or was granted leave to be represented. Further, DTA was not put on notice that costs would be sought if her applications were dismissed. DTB became actively involved in the proceeding only shortly before the directions hearing. She could have made, but did not, a formal written submission in advance of the directions hearing. If costs are awarded, they should be ‘assessed on the Standard Scale, or fixed in the sum of $350.00’.[12] (I note, however, that there is no QCAT scale of costs. Also, it is not apparent why the amount of $350 in particular has been nominated)

Why costs have been awarded in the amount of $2,178

  1. [28]
    I consider it is reasonable to make an award of costs. It was reasonable for DTB to consult a lawyer, and entirely understandable that she did so. The applications and supporting submissions had been prepared by a legally qualified person. They were complex and lengthy. A lay person would have little idea of how to respond to them.
  2. [29]
    Further, I do not consider the fact that some of the costs were incurred before leave for representation was granted to be a disentitling factor. It was reasonable for DTB to incur legal costs from the time that she started incurring them. It was not incumbent on her to seek leave for representation earlier than she did. However, the relatively late application for leave meant that DTA was not put on early notice that she may be at risk of a costs order. This is counterbalanced to an extent, though, by the fact that it must have been readily foreseeable that DTB might seek legal advice and representation. She has been represented, or at least involved in instructing Barnes Law Group as attorney for ADU, in the related District Court action, and similarly there was legal representation in earlier tribunal proceedings.
  3. [30]
    I do not consider that it would be reasonable to award costs to DTB for the full amount invoiced. Mr Barnes has acted as lawyer for ADU or DTB in various related proceedings since September 2019. He already had background knowledge when the applications in question were filed. No doubt new arguments were introduced in those applications. They were complex. It would have taken Mr Barnes time to analyse the applications and advise DTB. However, it is clear from his email of March 2021 from which I have quoted, that at an early stage he grasped the key flaws in the applications. He was able to expose them clearly in a single-page email. At that point, he was commenting on the original applications. Amended applications were later filed, but the amendments were relatively minor. The same flaws persisted.
  4. [31]
    According to the invoice, Mr Barnes spent four hours on the matter on 18 March 2021. I consider that reasonable, bearing in mind the need to grasp the subtleties of the applications, review the history, confer with DTB, and send the email to the tribunal. Mr Barnes spent quite a few hours subsequently, but in my view these exceeded what was objectively necessary. For example, the time spent on preparing the submissions on costs was four hours, but the submissions largely simply recite the history back to 2019, including earlier proceedings in QCAT and the New South Wales Civil and Administrative Tribunal. The history was already known to the tribunal, and the earlier history was of limited relevance.
  5. [32]
    My estimate of the time reasonably necessary for a lawyer to act for DTB in the matter is approximately seven hours, comprising four hours as was spent on 18 March 2021; an hour to review the amended application and other documents; an hour on 8 November 2021; and an hour for the preparation of written submissions on costs. This should, however, be reduced on account of the late application for leave to be represented, and the absence of correspondence that warned DTA that she risked a costs order in the event that her applications were dismissed. Such correspondence would have given her an opportunity to consider seeking leave to withdraw the applications. I consider that the amount of reasonable costs should be worked out by allowing for 5.5 hours of work by Mr Barnes at the hourly rate of $360 plus GST. This comes to $2,178.

Conclusion

  1. [33]
    DTA must pay costs in the amount of $2,178 to DTB by 31 May 2022.

Footnotes

[1]  [2019] QCAT 10.

[2]  Ibid, [8].

[3]  Ibid, [11].

[4] Seeiseo Pty Ltd ATF Aqua Trust v Body Corporate for Taralla Apartments [2020] QCATA 48, [28].

[5]  [2021] QCATA 26, [38].

[6]  [2019] QCAT 10, [27].

[7]  [2012] QCAT 452.

[8]  [2019] QCAT 10.

[9]  Document H35 on the tribunal’s file, 12.

[10] Powers of Attorney Act 1998 (Qld), s 46(b).

[11]  Document H3 on DTA’s file.

[12]  Document H48 on the tribunal’s file, [16].

Close

Editorial Notes

  • Published Case Name:

    ADU

  • Shortened Case Name:

    ADU

  • MNC:

    [2022] QCAT 149

  • Court:

    QCAT

  • Judge(s):

    Acting Senior Member Kanowski

  • Date:

    26 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.