TAJ (costs)[2023] QCAT 133

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a decision about costs in a remitted hearing, following a successful appeal against a costs award made by the tribunal. 
2. [2]
   The order which was appealed against was made on 26 March 2021.  On that day after a tribunal member heard and determined various applications made by TCN about matters concerning the adult TAJ, including about an enduring power of attorney, the successful party TL made an application under section 125 of the Power of Attorney Act 1998 (Qld) (POA Act) that TCN should pay TL’s costs.  The application for costs was successful and the tribunal ordered TCN to pay TL’s costs fixed at $15,000.  The order was made by applying the principle in section 125 of the POA Act that usually in applications under the POA Act, costs follow the event.  The reasons were given orally by the member and were not published.
3. [3]
   TCN appealed against the tribunal’s order and on 18 October 2022 the Appeal Tribunal set aside the costs award on the grounds of procedural unfairness in the hearing when dealing with the costs application.  The appeal decision was reported as TCN v Public Guardian & anor [2022] QCATA 158.  The Appeal Tribunal remitted the application for costs to a differently constituted tribunal and that has now come before me.
4. [4]
   The parties to the remitted costs application have been permitted to file evidence and make submissions and both parties have done so.
5. [5]
   There is a complication in deciding the remitted costs application because after the Appeal Tribunal’s remittal order, a differently constituted Appeal Tribunal decided that applications for costs under the POA Act should be decided under the principles in the Guardianship and Administration Act 2000 (Qld) (GAA Act) and not under the POA Act.  That decision was reported as in MJ v MET & Ors [2022] QCATA 180. 
6. [6]
   TCN has submitted that I am bound to follow MJ v MET & Ors.  Since the costs provisions in the POA Act and the GAA Act are quite different and will affect the outcome of the remitted costs application, I need to decide whether I am bound to follow MJ v MET & Ors.  If I am not so bound, then I need to decide whether to follow it anyway.  And finally I need to decide, on the tests which apply, whether a costs award should be made and if so in what amount.

The difference in the costs provisions

7. [7]
   There is a considerable difference between the costs provisions in each Act.  In the POA Act, section 125 provides:

125 Costs

3. (1)
   The costs of a proceeding are within the court’s discretion.

3. (2)
   However, unless the court otherwise orders, costs follow the event.

8. [8]
   Reference here to the ‘court’ means the Supreme Court but also QCAT when the tribunal is exercising its jurisdiction and powers for enduring documents.^[1]
9. [9]
   The costs provisions in the GAA Act are in section 127 which provides:

127 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.

Note— See also section 101.

10. [10]
    If I decide this costs application under section 125 of the POA Act, then the starting point is that costs follow the event, although there is a discretion whether to make an award; but if I decide it under section 127 of the GAA Act, then the starting point is that each side bear their own costs and there would need to be exceptional circumstances for me to consider whether it is right to award costs.

What has been remitted to me for reconsideration?

11. [11]
    It is of central importance to understand exactly what is remitted to me for hearing and determination.  It defines my jurisdiction over the costs application^[2] and I may not make any order nor undertake any task inconsistent with the order of remittal.^[3]  It is therefore relevant when considering whether I am bound to follow MJ v MET & Ors.
12. [12]
    The precise order remitting the costs application was:

The application for costs pursuant to s 125 of the Powers of Attorney Act 1998 (Qld) is remitted to the Tribunal differently constituted for determination according to law, after the filing of such further evidence and submissions as the Tribunal may direct.

13. [13]
    This remittal order requires me to decide the costs application ‘according to law’, and this means the law applying at the time of the remitted hearing.^[4]  But the law also includes the conclusions of the Appeal Tribunal making the remittal order,^[5] so it is appropriate to have regard to the reasons of the Appeal Tribunal for allowing the appeal and remitting the costs application.
14. [14]
    The question arises what is being described in the remittal order by the reference to ‘The application for costs pursuant to s 125 of the Powers of Attorney Act 1998 (Qld)’?  It might simply identify the application which I need to consider, or it might define the way in which I need to consider it. 
15. [15]
    The answer to this appears from the Appeal Tribunal’s reasons.  The reasons refer to the several applications before the tribunal and what happened to them in the original hearing.  Some were withdrawn at the hearing and others were unsuccessful.
16. [16]
    They were:

    1. (a)
       An application by TCN for an order declaring invalid an enduring power of attorney made on 30 May 2018 on the grounds of incapacity to make it on that date.^[6]
    2. (b)
       Four applications by TCN for notices to produce documents to be issued by the tribunal, that is for the file of the solicitor who had witnessed the enduring power of attorney, and various records made before the adult executed the enduring power of attorney – those held by an aged care facility where the adult lived, those held by a medical practice where she had been a patient and those held by a doctor who had given an opinion on 28 May 2018 as to her capacity to make an enduring power of attorney.^[7]
    3. (c)
       An application by TCN for a declaration about capacity (at the time of the hearing).^[8]
    4. (d)
       Applications by TCN for directions under the GAA Act, for authorisation of a conflict transaction and for an Adult Evidence Order.^[9]
    5. (e)
       An application by TL for a confidentiality order.^[10]
17. [17]
    Leave was given at the hearing for TCN to withdraw all the applications in (d).  The other applications were heard and determined in the hearing.  The application under (a) failed, and the tribunal declared the enduring power of attorney valid.  All the applications under (b) were refused.  For (c) the tribunal declared that the adult had capacity for all personal matters.  The application under (e) was refused.
18. [18]
    There was no appeal against the decision under (e).  There was an appeal against the decisions under (a), (b) and (c) but all these decisions were confirmed by the Appeal Tribunal. 
19. [19]
    At the end of the original hearing, TL applied for costs to be paid by TCN.  When dealing with this application the member decided that application (a) was ‘squarely’ made under the POA Act.^[11]  That is a reference to the capacity issue for making the enduring power of attorney.  The applications in (b) were also to support application (a) (they were not relevant to any other issue) and ought to be considered as under the POA Act even though procedurally they were made under section 63(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).  The member decided that applications (c) and (e) were under the GAA Act.^[12]  The application in (d) was also under the GAA Act.
20. [20]
    Accordingly it seems to me that the member in the original hearing, and the Appeal Tribunal, regarded the application for costs as in two parts, that is:

  costs incurred in the capacity issue for making the enduring power of attorney - that is, applications (a) and (b), and costs incurred in the applications made under the GAA Act - that is, all other applications. 

21. [21]
    In the original hearing, an award of costs was made in the sum of $15,000 for the costs incurred in the capacity issue for making the enduring power of attorney, but no order was made with respect to the costs incurred under the GAA Act.
22. [22]
    In my view, it can be seen from the above analysis that the reference in the remittal order to ‘The application for costs pursuant to s 125 of the Powers of Attorney Act 1998 (Qld)’ is a reference to the application for costs, that is the costs incurred in the capacity issue for making the enduring power of attorney.

MJ v MET & Ors

23. [23]
    After the remittal order in the TCN appeal, a differently constituted Appeal Tribunal decided another appeal against a costs order made under the POA Act.  That decision was reported as in MJ v MET & Ors [2022] QCATA 180.  The decision was that only the costs provisions in section 127 of the GAA Act apply when the tribunal is considering an application for costs incurred in an application about a power of attorney, even if the tribunal exercised its powers under the POA Act.  In other words, it was decided that in such applications it is always wrong for the tribunal to apply the costs provisions in section 125 that costs should usually follow the event, and instead the tribunal should always apply the test in section 127 of the GAA Act of exceptional circumstances.
24. [24]
    In MJ v MET & Ors, the Appeal Tribunal referred to the remitted costs application which is now before me.^[13]  It was said that where TCN had remitted the application for costs ‘pursuant to s 125 of the Powers of Attorney Act 1998 (Qld)’, ‘the applicable costs provision was, rather, section 127 of the Guardianship and Administration Act.’  In other words, the remittal order of the TCN Appeal Tribunal should have required me to apply section 127 of the GAA Act.  There has been no amendment to the remittal order of the TCN Appeal Tribunal however.
25. [25]
    There is no doubt that MJ v MET & Ors is precisely on the point in this remitted costs application and that I would be bound by it if the doctrine of precedent obliges me to follow it.  However, respectfully I do have substantial reservations about the correctness of the decision, and so it is necessary to decide whether, on the current state of authorities I am bound to follow it.

Am I bound by the doctrine of precedent to follow MJ v MET & Ors?

26. [26]
    On behalf of TCN it is submitted that MJ v MET & Ors states the current and correct position in law and as a decision of the Appeal Tribunal I am bound by it.^[14]  Therefore, it is said, no application for costs can be made under section 125 and I should dismiss the section 125 application for want of jurisdiction.^[15] 
27. [27]
    Whether or not the doctrine of precedent applies in the tribunal so that members at first instance are bound to follow Appeal Tribunal decisions on matters of law has not been decided.  It has been raised, for example in Gagliano & Anor v Queensland Building and Construction Commission [2014] QCAT 504, [29], where in an administrative review, Member Howard sitting at first instance, expressed the view that the doctrine of precedent may apply to the tribunal at least when it is exercising judicial functions as opposed to administrative functions.  Ultimately, because the Appeal Tribunal decision in question in that case was distinguishable, Member Howard found it unnecessary to decide whether she was bound to follow it.  In Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCATA 139, Senior Member Brown also raised the matter but reached no conclusion on it.
28. [28]
    In so far as the doctrine of precedent applies in the superior courts the doctrine was stated by Brennan J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) CLR 107, [11], simply as:

Courts are bound to apply the principles laid down by courts higher in the appellate hierarchy and observance of that rule avoids the futility of delivering judgments which will be reversed on appeal.

and by Barwick CJ in Viro v The Queen (1978) 141 CLR 88, 93:

The essential basis for the observance of a decision of a tribunal by way of binding precedent is that that tribunal can correct the decisions of the court which is said so to be bound.

29. [29]
    It is understood however that these rules do not directly and automatically apply to inferior courts and to tribunals.  As said by Grove J in Valentine v Eid (1992) 27 NSWLR 615 at 622D:^[16]

I am persuaded that the propositions advanced by Professor Cross and Messrs Gifford are correct and I conclude that the doctrine of stare decisis does not apply as between two inferior courts, the District Court and the Local Court, even though the former stands higher in curial gradation.

30. [30]
    Valentine has been accepted as stating the correct position in several jurisdictions.^[17]
31. [31]
    There is good reason for this.  It reflects the fact that many such tribunals have been established to do specialised work and to work in such a way that the strict doctrine of precedent may be inappropriate, or unnecessary, to produce the consistency and certainty which is one of the reasons for the doctrine.
32. [32]
    QCAT’s appeal hierarchy includes the Queensland Court of Appeal in the Supreme Court and the High Court and it seems obvious that a member sitting in the tribunal at first instance and the Appeal Tribunal would be bound by decisions on questions of law made in those courts.  But this does not answer the question whether a member sitting in the tribunal at first instance is bound by decisions on questions of law made by the Appeal Tribunal.
33. [33]
    It is open to an inferior court and a tribunal to decide that the doctrine of precedent applies to its particular arrangement.  For example, the Appeal Panel of the New South Wales Civil and Administrative Tribunal in Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 offered the view, seemingly obiter and without reaching a final decision on it, that its decisions were binding on members:

196. Since the question of whether the doctrine of precedent applies generally to decisions of the Tribunal was not argued on this appeal, we shall not express any final or definitive view upon the matter.  Nonetheless, having regard to what the High Court has said in Babaniaris, to the fact that most final, first instance decisions of the Tribunal are made in the exercise of judicial power and can be appealed to the Appeal Panel as of right on a question of law and to the reasoning in the decisions referred by the Tribunal below at [107] of its reasons for decision, we think that it is appropriate for any Members sitting at first instance in the Tribunal to consider themselves bound, at least, to follow decisions of the Appeal Panel on questions of law.

34. [34]
    I note that in Illawarra Retirement Trust v Colliers International (Wollongong) Pty Ltd [2021] NSWCATCD 113 Senior Member L Wilson citing Lam said:

Unlike decisions of Members at first instance, the Tribunal is bound to follow Appeal Panel or Supreme Court decisions, at least on questions of law

35. [35]
    It remains to be seen whether QCAT will make a similar decision.  There are a number of considerations, some of which were mentioned by Member Howard in Gagliano. 
36. [36]
    One is the type of jurisdiction which is being applied.  The advent of the Human Rights Act 2019 (Qld) has caused the tribunal to consider in a number of recent cases, in what situations it is acting in an administrative capacity as opposed to acting in a judicial capacity.  It is less likely that when the tribunal is acting in an administrative capacity the doctrine of precedent would apply.  Member Howard in Gagliano considered that in any review application where the tribunal is to make the correct and preferable decision and makes the decision afresh or anew on its merits, that this is ‘plainly an administrative function akin to the review function of the AAT’, and this has been the opinion of several other members in various types of review.^[18]  It has been held that the tribunal is acting in an administrative capacity when deciding an application for an exemption under the Anti-Discrimination Act 1991 (Qld),^[19] and when deciding what to do with a discrimination complaint and referral made in the name of an adult applicant without his approval or authority.^[20]
37. [37]
    In the area of Guardianship and Administration, it is considered that when making a decision whether or not to appoint an administrator or guardian the tribunal is acting in an administrative capacity,^[21] but not when making a declaration about capacity not for the purpose of appointing a guardian or administrator,^[22] or when considering whether the presumption of undue influence in section 87 of the POA Act has been rebutted.^[23]
38. [38]
    When the tribunal is acting in an administrative capacity it is probably unnecessary and inappropriate for the doctrine of precedent to apply.  For example, in DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33, [76], when reviewing a child related employment decision, where the tribunal was to reach the correct and preferable decision applying the principle that the welfare and best interests of a child are paramount, Member Pennell found it to be inappropriate to be asked to follow an Appeal Tribunal decision about which charges or convictions could be considered as part of the criminal history of an applicant for a blue card.
39. [39]
    In many other types of cases heard by the tribunal, it will be acting in a judicial capacity and further, the tribunal is a court of a State within the purview of Chapter III of the Commonwealth Constitution.^[24]  In such matters it may well be more appropriate for the doctrine of precedent to apply at least where the Appeal Tribunal decision is made by a judicial member, or by the deputy president or the president.  However, having regard to the tribunal’s internal appeal arrangements it is not obvious that the doctrine of precedent should apply where the Appeal Tribunal decision is made at a lower level.
40. [40]
    I believe that any consideration as to whether the doctrine of precedent applies to bind a member sitting at first instance in QCAT to follow an Appeal Tribunal decision would be informed by things which are not immediately obvious, but which may apply in other ‘super tribunals’ which have an internal appeal arrangement like QCATs. 
41. [41]
    Close contact between tribunal’s decision makers is encouraged by the QCAT Act which requires the tribunal to ‘encourage members and adjudicators to act in a way that promotes the collegiate nature of the tribunal’,^[25] and in practice the internal appeal arrangement provides a fluidity between sitting at first instance and on appeal.  This helps to achieve efficiency and consistency, but it is arguable that it may weaken the authority of the Appeal Tribunal to bind members sitting at first instance.
42. [42]
    My overall conclusion is that, despite one of the objects of the tribunal being to promote and enhance the quality and consistency of tribunal decisions,^[26] until the Appeal Tribunal itself, or a higher court, expresses a view, members of the tribunal sitting at first instance are not bound by Appeal Tribunal decisions at least those made below the level of judicial member, deputy president or president.

Should I follow MJ v MET & Ors anyway?

43. [43]
    One concern with MJ v MET & Ors is that it differs from the usual approach established over many years in the tribunal and its predecessor tribunal. 
44. [44]
    There are very few reported cases and this may well reflect the fact that reasons are usually given orally.  In SAE, Re: [2007] QGAAT 18, two members sitting in QCAT’s predecessor, the Queensland Guardianship and Administration Tribunal, decided that had the application to the tribunal in that matter been made under the POA Act then section 125 would apply to the costs application, but that s 127 applied because the application was made under the GAA Act.^[27]
45. [45]
    In FAA, Re: [2008] QGAAT 3, three members recognised that the costs provisions in section 125 of the POA Act and section 127 of the GAA Act were different and that in the case of inconsistency the GAA Act prevailed, but nevertheless decided that section 125 applied to the costs application before them because all matters had been under the POA Act, and only some procedural matters had been under the GAA Act.^[28] 
46. [46]
    Other reported cases show that the usual approach of the tribunal is that where an application is made under the POA Act then section 125 of the POA Act is applied,^[29] but that even where the tribunal is exercising its jurisdiction in matters concerned a power of attorney, if the tribunal is exercising jurisdiction under the GAA Act, then section 127 of the GAA Act is applied.^[30]
47. [47]
    This usual approach was reflected in the reasons of the Appeal Tribunal when remitting the costs application in TCN which is now before me.  It is clear from the reasons that the Senior Member who heard that appeal contemplated that the application for costs incurred in the POA Act matters would indeed be decided by applying the test in section 125 (costs usually follow the event).  This appears from these two paragraphs at the end of the Appeal Tribunal’s decision:

Observations

[85] For the parties’ benefit, I make the observation that in the absence of material that allows me to draw conclusions about the quantum of any costs that might reasonably be awarded pursuant to s 125 of the POA Act, unless the Tribunal concludes upon reconsideration that costs should not follow the event, it is not apparent whether the success of the appeal will ultimately result in a substantially different outcome. Further, in the meantime, the parties may accrue additional legal costs.

[86] It seems all persons involved in the proceeding are likely motivated by genuine concern and affection for TAJ, irrespective that, unfortunately, mistrust may have developed between family members in seeking to address the issues. I observe that it is open to the parties and may be in the interests of maximising the potential for more harmonious future family relations and limiting any further costs, for the parties to endeavour to reach agreement about costs.

48. [48]
    The reference here to section 125 of the POA Act and a different outcome if the tribunal on reconsideration decided that costs should not follow the event, shows that the Senior Member contemplated that the costs application would be determined under section 125 of the POA Act.  The words used here would be completely inappropriate for costs to be determined under the principle in section 127 of the GAA Act.
49. [49]
    The fact that MJ v MET & Ors is a departure from the usual approach of the tribunal is not to say of course that it is incorrect, but bearing in mind that one of the tribunal’s objects is consistency in decision making,^[31] this tends to lean against following MJ v MET & Ors.
50. [50]
    My second concern with MJ v MET & Ors is that only the very briefest of submissions were made about the interplay between section 125 of the POA Act and section 127 of the GAA Act by the parties to the appeal.  So it appears that the Appeal Tribunal was not assisted by detailed submissions.
51. [51]
    The third concern I have about following MJ v MET & Ors is whether it can really be said that the costs provisions in section 125 of the POA Act and section 127 of the GAA Act are inconsistent.  Central to the submissions made by the costs applicant in this remitted costs application is that because the GAA Act prevails where there is an inconsistency between the two statutes,^[32] this means that section 127 is the provision to apply in all applications for costs. 
52. [52]
    But as can be seen from previous decisions at first instance, the usual approach is that where an application is made under the POA Act then the approach to costs set out in section 125 of the POA Act is applied.  For applications under the GAA Act section 127 of the GAA Act is applied.  Some applications may be made under both Acts, or work may be done which applies to applications under both Act, but practitioners and the tribunal are well practised at apportioning such work between applications and issues.  Where this is impossible, then the inconsistency rule would mean than section 127 applied to those particular costs.  And as can be seen from the clear demarcation in the remitted costs application between the costs incurred in the capacity issue for making the enduring power of attorney and other costs, it is not difficult to identify the applicable jurisdiction.  Viewed in this way, I have difficulty in identifying any inconsistency between the two provisions.  I think that in the absence of such inconsistency the reason not to apply section 125 POA Act when deciding costs in applications under that Act falls away.
53. [53]
    On TCN’s behalf however, it is submitted that even where the tribunal is able to identify those costs which have been incurred when dealing with an application under the POA Act there is still an inconsistency between the two costs provisions because of ‘the comprehensive statutory regime and the procedural rules in chapter 7 of the GAA Act’.^[33]
54. [54]
    I do not think this submission is correct.  In chapter 7 of the GAA Act, section 115 (Scope of Applications) expressly contemplates that applications may be made to the tribunal ‘about something in, or related to, this Act or the Powers of Attorney Act 1998’ and specifies that the POA Act could have an effect on who could bring the application.  Section 126 specifies who may be ‘interested persons’ under the GAA Act or the POA Act.  Section 138 (Advice, directions and recommendations) is also relevant.  These provisions show that it was not the intention that in some way, the provisions of the POA Act disappear and merge into the GAA Act.  Although it is true that there is a comprehensive statutory regime, it is difficult to see how this changes the outcome.
55. [55]
    I do take note of Public Trustee of Queensland v BN and Ors [2011] QCAT 666, [56], where Justice Wilson, President, considered that there was no clear indication in either Act suggesting an intention to grant the tribunal wider, if concurrent, power in relation to attorneys than exists under the GAA Act.  This meant that the words ‘enduring documents’ in section 109A of the POA Act should be narrowly construed.  Justice Wilson’s comments about wider power were on a reference on a question of law as to whether the tribunal could order an attorney to pay compensation to a principal under a power of attorney under section 106 of the POA Act in its terms at that time, which he answered in the negative.  Justice Wilson’s comments about wider power are probably confined to the section 106 issue.  And it is notable that section 106 was subsequently amended by the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) to give the tribunal the same jurisdiction to award such compensation as the Supreme Court and the explanatory notes to that Act explain that this was to remove the ‘uncertainty’ about the tribunal’s powers to award such compensation.
56. [56]
    As mentioned above, the Appeal Tribunal remitting this costs application before me and the original tribunal had no difficulty identifying under which Act the tribunal was exercising its powers to hear and determine the various applications.  In MJ v MET & Ors the Appeal Tribunal had no difficulty with this either with respect to the applications in that appeal.^[34]
57. [57]
    Respectfully, although MJ v MET & Ors is directly on topic, I do not think I should follow it.

Other submissions

58. [58]
    On TCN’s behalf it is submitted that since the only application for costs before me is one made under section 125 of the POA Act, and in accordance with MJ v MET & Ors no such application can be made, then I should dismiss the remitted costs application.  It is further submitted that I cannot then consider the remitted costs application as having been made under section 127 of the GAA Act because the application for costs determined under section 127 was refused by the member in the original hearing on the basis that there were no exceptional circumstances.^[35] 
59. [59]
    I do not agree with this submission.  It is true that, as the TCN Appeal Tribunal observed,^[36] the member in the original hearing decided not to award costs with respect to that part of the proceedings to be determined under section 127.  But the member was dealing there with the costs incurred in applications under the GAA Act not the costs incurred in the capacity issue for making the enduring power of attorney.  Those costs are clearly before me for determination in this remitted costs application.

Considerations in the costs application

60. [60]
    I now proceed to deal with the costs application on the basis that section 125 of the POA Act applies to it.  I also consider that I have sufficient evidence and material to consider what the outcome of the costs application would be if I were to deal with it on the basis that only section 127 applies.  Hopefully this would assist should this matter be reconsidered on appeal.
61. [61]
    I need to understand the scope of the remittal and whether I am bound by findings made by the member who conducted the original hearing which have not been disturbed on appeal.  In the usual case, a remittal is not a rehearing following a reopening but instead is a continuation of the original hearing so, unless disturbed on appeal by the Appeal Tribunal, I would be bound by the findings of the original hearing.^[37]  But in this case the appeal from the costs award succeeded because TCN had not been afforded procedural fairness in the hearing, and the usual consequence of this is that upon this being declared, the original decision is of no effect.^[38]  This remitted hearing is therefore effectively a reopening and I can consider the costs application afresh.  This was reflected by the directions given by the tribunal on 22 November 2022 which permitted the parties to provide further material to the tribunal on the remitted costs application.  It was also reflected by the directions made on 14 March 2023 and corrected on 29 March 2023.^[39]
62. [62]
    Deciding this costs application by applying the principles in section 125 of the POA Act, I think I have no alternative but to allow it.  Apart from the submission that no costs can be awarded under section 125, the only point of mitigation capable of affecting the decision is that TCN faced a difficulty in making an informed decision about whether to proceed with the substantive application because she only had the first five pages of the report of the Public Guardian and her applications for notices to produce (which were necessary because of the difficulty in obtaining information in another way) had not been decided by the tribunal and were decided at the hearing.
63. [63]
    The problem with this is that all these difficulties were natural hazards of this type of litigation.  They were foreseeable and not unusual.  They cannot affect the decision whether or not TL is entitled to a costs award under section 125.  In this respect I note that the five pages of the report of the Public Guardian which had been received gave the findings of the Public Guardian with very brief, but sufficient, reasons to explain the conclusion that although the adult had impaired capacity for complex decisions for financial and personal/health matters, the allegations made by TCN were not substantiated.^[40]
64. [64]
    There is something else showing that these points should not deny TL the award of costs.  It is not submitted on TCN’s behalf that she would have withdrawn the application about the making of the power of attorney had the information been received earlier.  Indeed it appears that the application would not have been withdrawn had the information been received earlier, because after all information to which TCN was entitled was to hand, TCN launched an appeal on the basis that the evidence did not support the member’s substantive decision on the making of the power of attorney,^[41] which appeal failed. 
65. [65]
    For these reasons I do award costs applying the principle in section 125 of the POA Act.

Alternative considerations: costs under section 127

66. [66]
    As mentioned above, I am deciding this in the alternative in case this matter is reconsidered on appeal.
67. [67]
    Deciding this costs application applying the principles in section 127 of the GAA Act produces a different result from that under section 125 of the POA Act. 
68. [68]
    Bearing in mind the decision of the Public Guardian that at least on 19 June 2000 TAJ had impaired capacity for complex decisions for financial and personal/health matters, TCN had some support for the suggestion that TAJ did not have capacity to make the enduring power of attorney on 30 May 2018.  Overall however, the medical evidence was not supportive.  A Health Professional Report done in March 2012 recorded TAJ as unable to make complex decisions about financial affairs at that time but able to make complex decisions on other matters.  A Mini-mental State Examination (MMSE) done at that time returned a score of 27.5/30, which was a ‘pass’.  A Psychogeriatric Assessment Scale (PAS) test done on 23 February 2018 showed that TAJ had a mild cognitive impairment at that time.  A medical certificate from a general practitioner dated 28 May 2018 and requested by the solicitor who witnessed the enduring power of attorney executed two days later opined that TAJ had capacity to execute the document.  A Mini-mental State Examination (MMSE) done on 18 July 2019 was a score of 23/30 which showed a cognitive impairment, but a General Practitioner’s Health Professional Report done a few days later which reflected this deficit opined that TAJ did have capacity to execute an enduring power of attorney at that time.
69. [69]
    Taking into account the evidence of the solicitor who witnessed the execution of the enduring power of attorney in question,^[42] and the presumption of capacity in the POA Act meant that the merits of the application about the making of the power of attorney could not be described as good on the available evidence.
70. [70]
    Merely bringing a weak application about capacity however, is not exceptional circumstances under section 127.^[43]  If the attempts to gather more information using the notices to produce had been successful, this might have shifted the merits one way or the other, but it was not known until the hearing itself whether those attempts were going to be successful.
71. [71]
    TCN’s own evidence raised concerns about undue influence, denial of contact and questionable motivations of the attorney TL with some limited support from a witness OCA.
72. [72]
    It cannot be said that the applications were frivolous or vexatious and bearing in mind the matters above, I do not think that there were any exceptional circumstances which would permit me to consider whether to award costs.  I would not award costs if I applied the costs provision in section 127 of the GAA Act.

Quantum of costs

73. [73]
    Those acting for TL have not told me the proportion of the total costs incurred in the capacity issue for making the power of attorney (which this remitted costs application is limited to).  So I will need to decide this myself. 
74. [74]
    In this respect, when making the decision about costs, the member in the original hearing decided that about half the total costs incurred by TL were with respect to the capacity issue for making the enduring power of attorney.^[44]  Since the total costs were then estimated to be $30,470, the member awarded $15,000 for costs.  There was no appeal against the finding that half the total costs were with respect to the capacity issue for making the enduring power of attorney.
75. [75]
    On my review of the bills and the material presented to the tribunal, I do think it is about right to say that half the total costs incurred by TL were with respect to the capacity issue for making the power of attorney.  It is important to note here that TCN probably spent a greater proportion of the charged time dealing with that issue, but TL’s total billed costs included dealing with all the applications more generally, and included making an application for a confidentiality order.
76. [76]
    As it has turned out, the actual costs billed to TL were greater than the estimate given at the hearing.  The billed costs are $44,980.10 including GST up to and including the hearing on 26 March 2021, and an estimate of fees of $6,600 including GST for the costs application itself.  This is a total of $51,580.10 including GST.  This is the amount claimed in the remitted costs application, but only half of the $44,980.10 is before me,^[45] that is $22,490.05.  Adding the whole of the costs of $6,600 incurred in making the costs application, I should regard the application to be for costs of $29,090. 
77. [77]
    The submissions filed in the costs application ask for costs on the indemnity basis.  The reasons given are that the applications failed and because the conflict of interest allegations were misconceived, lacked substance or were otherwise an abuse of process.^[46]  However, I do not think any costs expended on the conflict of interest issue are before me in this application because the application is limited to the costs with respect to the capacity issue for making the enduring power of attorney.  There is no other good reason to award indemnity costs and so it is right to regard the recoverable costs as being comparable to what could be recovered on the standard basis.
78. [78]
    The QCAT Act requires me to fix the costs if possible.^[47]  The aim is to make an award which is reasonable and appropriate in the circumstances of the case.^[48]
79. [79]
    I find the evidence submitted on TL’s behalf helpful because the bills briefly describe the work done, when the work was done, who did the work, the applicable charging rate and the time taken to do the work.^[49]  This enables me to see whether the work done and the amount charged, were reasonable.  I note that in most cases the work was done by a partner and I confirm that this was justified given the complexity of the case. 
80. [80]
    I note that the partner’s hourly rate was twice the rate for a solicitor allowed in the Supreme Court scales of costs, but the scale would be supplemented by an uplift for general care and conduct often claimed as 25%, and since the partner took responsibility for decision making in the case this would have saved counsel’s fees which may have been payable if counsel had been engaged to advise instead.  This approach continued to the hearing where the partner represented TL.  I note that the bills issued to TL were usually rounded down. 
81. [81]
    These factors tend to make the bill on a solicitor-client basis up to and including the hearing reasonable, but there needs to be a slight adjustment.  A second solicitor attended the hearing with the partner and it is probably inappropriate to expect TCN to pay for his attendance.  That is a claim for $580.60 including GST.  So the $22,490.05 should be reduced to a rounded down figure of $21,909 including GST.  Apart from this, there is nothing in the work listed which stands out as obviously unnecessary, and although an opportunity was given to the parties to ask the tribunal for further directions which might have included challenging the figures, this has not been done.
82. [82]
    As for the claim of $6,600 including GST for preparing the application for costs, it has been said that in an application for costs relying on section 102 of the QCAT Act, it would be justifiable to add the costs of making the application for costs because of the additional matters which need to be addressed in such applications.^[50]  Section 102 does not apply to this costs application, but although the submissions were made on behalf of TL without the knowledge of MJ v MET & Ors, it cannot be said that the costs issues were straightforward.  I am not convinced however, that the total fee claimed of $6,600 for the preparation of the affidavit and submissions are justifiable and propose to limit this to $4,400.
83. [83]
    Adding the two together, that is the $21,909 and $4,400, means that the reasonable solicitor-client costs of the issue before me is $26,309.  This now needs to be adjusted to suit the standard basis of costs.
84. [84]
    The tribunal and Appeal Tribunal have in many reported cases used the solicitor’s billed costs as a starting point when fixing costs, provided they appear reasonable on a solicitor-client basis, and then reduced them by about a third to allow for the likely reduction on an assessment on the standard basis.^[51]  Taking the same approach, this brings the appropriate costs award slightly rounded down to $17,500 including GST.  I shall make the order accordingly.