BJR[2025] QCAT 296

REASONS FOR DECISION

1. [1]
   On 4 April 2025 the Tribunal made a declaration that an Enduring Power of Attorney granted by BJR on 18 September 2023 was invalid as BJR lacked capacity to make that enduring document.  On 18 July 2025 the Tribunal made orders to change the terms of an Enduring Power of Attorney granted by BJR on 20 May 2022 so that the 2022 enduring document could provide adequate decision-making support to BJR as circumstances had changed since the 2022 enduring document was made. 
2. [2]
   On 18 July 2025 the Tribunal gave leave for BC and BD to withdraw their applications for the appointment of a guardian and administrator. The Tribunal also gave leave to BAM to withdraw her application for the appointment of a guardian and administrator.  The orders made on 18 July 2025 finalised the substance of the applications relating to BJR.
3. [3]
   The applicants in GAA10600-24, GAA10603-24, GAA10606-24, BC and BD, have applied for costs.  The costs application is opposed by BAM the wife of the adult, BJR.   Submissions have been filed by BC and BD as well as BAM.  The appointed representative for BJR did not file submissions about the costs application.
4. [4]
   BC and BD seek their costs of the entire proceeding under s 125 of the Powers of Attorney Act 1998 (Qld) (‘POA Act’). They did not submit that the three applications they filed in the proceeding in September 2024 sought nor resulted in the orders eventually made by the Tribunal: that the 2023 Enduring Power of Attorney was invalid due to BJR having a lack of capacity to grant that enduring document in 2023 and that the valid 2022 enduring document should be changed to provide adequate decision-making support to BJR.
5. [5]
   Their applications had sought a declaration that BJR has impaired capacity for personal and financial decisions, that they should be appointed as his guardians to make certain personal decisions for him and that they should be appointed as his administrators to make all financial decisions for him, overtaking and replacing his attorney.  All three applications originated from the Guardianship and Administration Act 2000 (Qld) (‘GAA Act’), being ss 12, 14, 15, 22 and 146.  They had also filed a fourth application seeking an interim order under s 129 of the GAA Act. That application was refused on 29 October 2024.
6. [6]
   The orders made by the Tribunal arose instead from an application initiated by the Tribunal on 15 October 2024 for an order about an Enduring Power of Attorney. Directions made by the Tribunal on 15 October 2024 caused evidence being filed about the circumstances in which the 2023 enduring document was made and caused medical evidence to be filed as to the capacity of BJR from 18 September 2023 to 15 October 2024. The submissions of BC and BD stated that they had welcomed the Tribunal’s directions as they did not have evidence themselves to challenge the validity of the 2023 enduring document.
7. [7]
   In seeking costs under s 125 of the POA Act, BC and BD conceded that their applications for appointment as guardians and administrators of BJR were made under the GAA Act.   However, they submitted that their application for a declaration about capacity was available under either the GAA Act or the POA Act.  They further submitted that in the circumstances of the case, the POA Act was the correct Act under which capacity was determined in light of the questions surrounding the validity of the 2023 enduring document. 
8. [8]
   The Tribunal must reject that submission.  It is clear from the face of the documents filed prior to the hearing in January 2025 that BC and BD had brought their application seeking a declaration about BJR’s capacity under the GAA Act.  Their application did not seek a declaration of BJR’s capacity as at 18 September 2023 but rather sought a declaration of capacity that would support their applications for the appointment of guardians and administrators. 
9. [9]
   In particular, the joint statement by BC and BD in support of the applications filed in September 2024 was 19 pages in length and contained 146 paragraphs.  Only five lines in that joint statement referred in any way to BJR’s capacity to make an enduring document in September 2023.   The entire focus in the filed applications and joint statement was on the desire of BC and BD to become decision-makers for BJR and to oust BAM as attorney.  That focus did change somewhat during the hearing in January and February 2025 but was not the result of any of the actual applications brought by BC and BD.  The expanded focus arose from the examination of evidence brought into contention by the Tribunal initiated application.
10. [10]
    The Tribunal is satisfied that all four applications brought by BC and BD were made under the GAA Act.  As such, the statutory authority for BC and BD to recover the costs of their applications must be the GAA Act.  Under s 127 of the GAA Act, each party to a proceeding under the GAA Act is to bear their own costs of the proceeding.  While there is a power in the Tribunal to award costs as set out in s 127(2) and (3), this power is limited in nature.  The Tribunal can order an applicant to pay the costs of an active party and of the Tribunal, but exceptional circumstances are required to do so and do not exist in this case. 
11. [11]
    This is not an end to the matters raised by BC and BD in their submissions.  The submission was made that BC and BD, as the successful party in the overall proceeding, should recover 90% of the costs they incurred in their applications under the POA Act.  They submitted that, although they did not commence the application for an order about an Enduring Power of Attorney, they were still applicants in the proceeding and the appropriate contradictors to BAM. 
12. [12]
    They submitted that:

    1. the written submissions filed on their behalf after the oral hearing had concluded in February 2025 revealed the positions adopted by BC and BD that the 2023 Enduring Power of Attorney was invalid;
    2. BAM in her submissions following the hearing had argued that the 2023 enduring document was valid;
    3. the Tribunal had declared the 2023 enduring document was invalid in line with the submissions of BC and BD;
    4. the positions of the parties and the role they took in the proceeding meant there was a successful party (BC and BD) and an unsuccessful party (BAM); and
    5. costs of the proceeding should follow the event pursuant to s 125 of the POA Act.
13. [13]
    The Tribunal does not agree that the outcome of the Tribunal initiated application can be categorised as resulting in a successful party and a losing party. None of the applications filed by BC and BD disposed of the proceeding.  As submitted by BAM, it was the Tribunal initiated application for an order about an Enduring Power of Attorney that disposed of the proceeding, both in the order that the 2023 enduring document was invalid due to BJR’s lack of capacity and the subsequent order changing the terms of the 2022 enduring document.      
14. [14]
    It cannot be said that any interested person heard on the Tribunal’s application was successful as understood in civil litigation.  The Tribunal by initiating an application entertained submissions and gathered information and evidence in an appropriate way under s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).  The Tribunal had directed that evidence be obtained by the Registrar from the certifying witness of the 2023 enduring document and from BJR’s usual doctor.  The Tribunal had directed that both these witnesses were to attend the hearing to provide evidence. The documents filed by these witnesses were not filed on behalf of any particular party but in response to the Tribunal’s directions.
15. [15]
    The Tribunal accepts that all the active parties engaged in the hearing then responded to the Tribunal’s application by providing valuable information and submissions to the Tribunal and by testing those who gave evidence in that application. The Tribunal raised the application for an order about an Enduring Power of Attorney because BC and BD had not done so.  The circumstances set out in the documents filed before 15 October 2024 reasonably called for consideration as to the validity of the 2023 enduring document. 
16. [16]
    Both BAM and BC and BD quite properly acted as contradictors in the application as the Tribunal could not prosecute its application in the manner of an active party.  The contradictors assisted the Tribunal in its determination of the issues about the 2023 Enduring Power of Attorney.  Contrary to the submissions of BC and BD, their status as applicants in their own applications has no relevant causal effect in this current consideration of what, if any, costs could be awarded to them in the proceeding.  
17. [17]
    The Tribunal concludes that BC and BD, acting as contradictors and not in some artificially assumed role of applicants, cannot be said to have been successful in the event, which was the declaration that BJR lacked capacity to make the enduring document on 18 September 2023.  They have not established any entitlement to costs in terms of s 125 of the POA Act in the application initiated by the Tribunal.   It should be noted that several aspects of the positions adopted by all three contradictors and their submissions, particularly about the Lambourne v Marrable^[1] authority, were considered by the Tribunal and guided the decision it ultimately reached on capacity. 
18. [18]
    The Tribunal concludes that BC and BD are not able to recover costs under s 125 of the POA Act in the Tribunal initiated application for an order about an Enduring Power of Attorney.  
19. [19]
    There is a further basis of support for this conclusion.  It was submitted by BAM that the POA Act did not give the Tribunal the power to initiate the application for an order about an Enduring Power of Attorney.  Applications for orders in the Tribunal under the POA Act can be made by the adult concerned, or another interested person or persons specified in s 110(3) of the POA Act.  It was submitted that the Tribunal’s initiated application was in fact made under s 146(2) of the GAA Act which, unlike the POA Act, gave the Tribunal power to make a declaration about the capacity of BJR for a matter on its own initiative. 
20. [20]
    The Tribunal agrees with that submission. The application that resulted in the outcome determined by the Tribunal was sourced from the Tribunal’s statutory power to make applications on its own initiative found in the GAA Act, not the POA Act.  The Tribunal cannot deal with the costs application under the POA Act, specifically under s 125 of the POA Act when the GAA Act based application is subject to the costs provisions in the GAA Act.   
21. [21]
    For the reasons above, the application for costs is refused.