MET (costs)[2023] QCAT 132

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a remitted hearing to decide a costs application, following a successful appeal against an order for costs made by the tribunal. 
2. [2]
   The order which was appealed against was made on 30 July 2021 in a decision published as MET [2021] QCAT 254.  The tribunal decided costs by applying the provisions of section 125 of the Power of Attorney Act 1998 (Qld) (POA Act) which provides that usually in applications under the POA Act, costs follow the event.  Orders were made that MJ pay MET’s costs of $3,017 and MJ pay MK’s costs of $7,284.
3. [3]
   MJ who is the grandson of the adult MET, had made applications to the tribunal.  MK is MET’s son who MET had appointed as attorney in an enduring power of attorney.
4. [4]
   MJ appealed against the tribunal’s costs order and on 7 December 2022 the Appeal Tribunal set aside the costs order on the grounds that section 125 of the POA Act did not apply, and that instead section 127 of the Guardianship and Administration Act 2000 (Qld) (GAA Act) applied to such costs.  The appeal decision was reported as MJ v MET & Ors [2022] QCATA 180.  The remittal order was:

The applications by MET and MK for costs in the proceedings at first instance are returned to the tribunal, differently constituted, for reconsideration.

The applicable costs provisions

5. [5]
   It was found by the Appeal Tribunal that the applicable costs provisions are in section 127 of the GAA Act:

127  Costs

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

2. (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.

Note— See also section 101.

6. [6]
   Although the parties to the remitted costs application were given an opportunity to file further submissions and material, nothing has been filed. 
7. [7]
   The nature of the applications before the tribunal appear in the Appeal Tribunal’s decision as follows:^[1]

   1. (a)
      an application brought by MJ for directions to have MET’s cognition assessed;^[2]
   2. (b)
      an application brought by MJ for a declaration about MET’s capacity – ‘MJ alleging that she did not have capacity’;^[3]
   3. (c)
      an application brought by MJ for an order about an enduring power of attorney dated 12 March 2010 – ‘MJ alleging the document was not valid and seeking to have MK removed as Attorney’;^[4] and
   4. (d)
      an application brought by MJ for a non-publication order.^[5]
8. [8]
   All applications were dismissed by a member of the tribunal at a hearing on 9 September 2020 after finding that MET had capacity for all matters.  The application for a non-publication order was dismissed on the grounds that ‘the application did not meet the threshold for such application’.  The costs application was dealt with afterwards by a different member.
9. [9]
   The member who dealt with the costs application conveniently summarised the submissions of the parties about costs in the reported decision MET [2021] QCAT 254.
10. [10]
    MK submitted that:

    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.
11. [11]
    MET submitted that:

    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.
12. [12]
    In response to these submissions, MJ said:

    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)
       the tribunal can only make a cost award against him if it is satisfied the application was frivolous, vexatious, fraudulent or without proper justification.
13. [13]
    MK claimed costs in the sum of $9,713.15 for the cost of legal representation including at the hearing, and MET claimed $4,022.70 in respect of the costs of a legal representative who attended MET on two occasions before the hearing and attended with MET at the hearing.
14. [14]
    To assist in the decision about costs I have read the transcript of the hearing of 9 September 2020 where a member of the tribunal heard and decided the various applications.
15. [15]
    To decide the question of MET’s current capacity, the member took an inquisitorial role and investigated directly with MET and her support person about how she dealt with her finances, how she withdrew from the bank the money she needed, how she paid the bills, what she did with money left over and her interaction with the attorney MK (her son) who was living with her and providing her with support.  The member received information from MET’s lawyer about the lawyer’s satisfaction that MET was able to instruct her in the matter.  The member also heard from MK who confirmed that MET could largely deal with her finances independently ‘with just a little bit of help’ and also because he could drive her where she needed to go.^[6]  The member received from the support person evidence about how MET was able to cope in her everyday life and make decisions about a number of matters.^[7]  There was also a second son present at the hearing who MET had also appointed as attorney with MK.  At the hearing this second son confirmed that he was ‘happy with what’s going on’ and happy to continue as MET’s attorney with his broker MK.^[8]
16. [16]
    Having regard to what was said at the hearing and the documentation in the file which included a health professional report from a specialist who opined that MET had capacity, the member decided that MET did have such capacity.^[9]
17. [17]
    On the question whether the tribunal should interfere with the appointments made in the power of attorney, the member confirmed with the attorneys that they were content to continue in that role but there had been a breakdown in communications between them.  There was a formal application brought by MJ and supported by the second son that MK should be removed as attorney.  On the day before the hearing, and orally at the hearing, an application was made in the hearing by the lawyer acting for MK that the second son should be removed as attorney leaving MK as attorney.  There were suggestions in MJ’s application supported by the second son that MK had misappropriated MET’s money to ‘fund his lifestyle’.  On the question whether the existing attorneys should be altered, the member received evidence about the matters raised and other matters and took the view of MET.
18. [18]
    The member decided that since MET had capacity then if she wished to change her attorney or attorneys she could do this herself, and whilst she had capacity it would be inappropriate for the tribunal to interfere.^[10]  In addition to this, since MET had capacity there was no need for any directions.^[11]
19. [19]
    The application for the non-publication order was made by MJ but seemingly without an understanding that the provisions of section 114A of the GAA Act are normally adequate to avoid the identification of the adult concerned.  It was dealt with very quickly by the member.^[12]
20. [20]
    Accordingly, having declared that MET had capacity the member dismissed all the applications.
21. [21]
    In this remitted costs application, I can only order MJ to pay the costs sought if there are exceptional circumstances, which would include where the application is frivolous or vexatious. 
22. [22]
    MJ could only have been successful in the applications if MET did not have capacity at the time of the hearing.  That was the central question.  It is right that MJ had no independent material to show that she did not have capacity, but he expressed a strong belief that she did not have capacity based on his own knowledge of her as expressed in his letter dated 1 October 2018 written to the Office of the Public Guardian.^[13]  This letter triggered an investigation by the Public Guardian.
23. [23]
    On 14 April 2020 the Public Guardian reported on MJ’s concerns.  In doing so the Public Guardian reported briefly on information which had been obtained about MET’s capacity in the year after late 2018.  This showed that in November 2018 there were concerns expressed by an occupational therapist that MET appeared to have a cognitive impairment, and that there was a score of 16/30 in a Montreal Cognitive Assessment (MoCA) which could indicate a significant cognitive impairment.  On 29 January 2019 there was a Mini-mental State Examination (MMSE) which returned a score of 24/30 which was borderline for cognitive impairment, but the geriatrician at that time reported that she had capacity to make an enduring power of attorney.  Then there was a Health Professional Report dated 21 June 2019 by a neurologist which was clear in its terms that MET had capacity for all matters, although she needed help for financial matters.  The Public Guardian’s conclusion was that there was no definite consensus that MET was unable to make relevant decisions which affect her specific circumstances and so the presumption of capacity could not be rebutted.
24. [24]
    It appears that MJ received the Public Guardian’s report about four months before the hearing.^[14]  It is true that MJ could at that time have withdrawn his applications to the tribunal, but the difficulty was that the Public Guardian’s report was unable to deal with his concerns about the actions of the attorney or attorneys because the presumption of capacity could not be rebutted.  In those circumstances, bearing in mind MJ seemed to have genuine concerns, it is not surprising that he pursued the applications to a hearing.
25. [25]
    It is also to be noted that in the hearing when deciding on the question of capacity the member relied very much on information presented to him at the hearing itself from a number of people – very little of which had previously been committed to writing.  Objectively therefore, the merits of the application about capacity were not clear until the hearing itself.
26. [26]
    The remitting Appeal Tribunal expressed this view about whether MJ’s applications or the attempted appeal from the member’s decision were frivolous or vexatious:

On the background I have outlined – involving declining cognition, and disagreement between attorneys appointed jointly with immediate financial powers – it would be wrong to describe the proceedings as frivolous, vexatious, baseless or otherwise improper, notwithstanding that the applications were ultimately unsuccessful.

27. [27]
    Although I would not regard myself as bound by this view because it does not affect my jurisdiction to hear the costs application in this remitted hearing, it does accord with my own view of the matter.
28. [28]
    Merely bringing a weak application about capacity is not exceptional circumstances under section 127.^[15]  And allowance must be made for the fact that a weak case might reasonably appear strong prior to the hearing but its apparent strength diminishes during the discussion in the hearing.  This is what happened here.  There were no exceptional circumstances in these applications which enable me, if I were to think it were right to do so in my discretion, to award costs.