Mulcahy v Mulcahy[2018] QCATA 197

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Ms Catherine Mulcahy has filed an application for leave to appeal, and to appeal, against an order of a member of the Tribunal (the Member) that she pay the costs of her brother, Mr Russell Mulcahy, relating to her unsuccessful applications for guardianship and administration orders in relation to their late mother, Mrs Lorraine Mulcahy.
2. [2]
   I have decided to refuse leave to appeal.  My reasons follow.

Background

3. [3]
   The Member considered that Ms Mulcahy’s application for guardianship and administration orders, and continuing with the application through an oral hearing, were vexatious and exceptional, such that an order that Ms Mulcahy pay Mr Mulcahy’s costs was warranted.
4. [4]
   In very broad terms, the Member’s reasons (Reasons) included that a comprehensive report of the Public Guardian made available to Ms Mulcahy the day before the hearing of the application found that Mr Mulcahy had no case to answer in respect of various allegations of financial impropriety as the late Mrs Mulcahy’s attorney.  Notwithstanding this, and the Member’s warning at the commencement of the hearing of the difficulty her application would face, Ms Mulcahy proceeded with the hearing, adducing no substantive evidence in support of these allegations.
5. [5]
   The Member also made some directions to Mr Mulcahy as attorney, which the Member described as of a relatively minor nature to address communication issues between Ms Mulcahy and Mr Mulcahy.

Statutory framework

6. [6]
   Ordinarily, the question of costs in Tribunal proceedings is governed by, among provisions, ss 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).  Section 100 sets out the usual rule that each party to a proceeding must bear their own costs.  However, s 102 empowers the Tribunal to make a costs order if the Tribunal considers the interests of justice require.
7. [7]
   Section 102 also specifies a number of matters the Tribunal may take into consideration in deciding whether to make a costs order, including whether a party is acting in a way that unnecessarily disadvantages another party, the nature and complexity of the dispute, the relative strengths of the claims and the financial circumstances of the parties.
8. [8]
   However, it is common ground that the Member correctly considered whether to make the costs order by reference to s 127 of the Guardianship and Administration Act 2000 (Qld) (GA Act), which relevantly provides:

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

(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.

9. [9]
   Importantly, subject to an exception that is not relevant to the current matter, s 101 of the GA Act provides that s 102 of the QCAT Act does not apply to Tribunal proceedings under the GA Act.
10. [10]
    In applying s 127 of the GA Act, the Member concluded that factors set out in s 102 of the QCAT Act, such as the complexity of the dispute, the relative strengths of the claims and the parties’ financial positions, were, in view of s 101 of the GA Act, irrelevant, ‘unless they assist me in determining if an exceptional case exists’. The Member concluded that these factors did not so assist in this case.^[1]
11. [11]
    It is common ground that such factors were not required to be taken into account.
12. [12]
    The Member also noted that:

[10] The term exceptional is not defined. What is exceptional is a question of fact and degree to be decided in each individual case having regard to the context of the legislation which contains them, the intent and purpose of that legislation.^[2]

13. [13]
    The Member went on to state:

In Re Imperial Chemical Industries Ltd’s Patent Extension Petitions,^[3] Fullagar J quoted Luxmoore J [in Re Perry and Brown’s Patents (1930) 48 RPC 200]  that ‘it would be most unwise to lay down any general rule with regard to what is an exceptional case . . . All these matters are matters of discretion.

14. [14]
    It may be readily understood why no general rule should be laid down in relation to what is an exceptional case, since that will depend on the context, and any number of unforeseeable circumstances.
15. [15]
    However, I confess to finding what is meant by the statement in Re Perry and Brown’s Patents that ‘All these are matters for discretion’ more difficult to understand. The statement was made in the context of a statutory discretion to extend the operative period of a patent by a period of five years, or, in an ‘exceptional’ case, up to 10 years. On its face, the statement suggests that whether the case is exceptional is itself a matter of discretion for the decision-maker.
16. [16]
    It seems to me that the natural reading of s 127 of the GA Act is that the discretion to award costs is enlivened where there are exceptional circumstances that warrant a costs award being made. That is the approach taken by the Member. The statement in Re Perry and Brown’s Patents may merely be a shorthand way of stating the same principle; in any case, it was made in a different statutory context.
17. [17]
    There is nothing to suggest that the expression ‘exceptional’ in s 127 is to be given other than its ordinary meaning.  That also appears to be the approach taken by the Member, there being no suggestion of a relevant technical meaning in the Reasons.

Should leave to appeal be granted?

18. [18]
    Under s 142(3)(a)(iii) of the QCAT Act, an appeal against a costs order may only be made with leave of the appeal tribunal.
19. [19]
    The issues to be considered in determining whether to grant leave to appeal are: Is there a reasonably arguable case of error in the primary decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument, and a decision of the appeal tribunal would be to the public advantage?^[4]
20. [20]
    I first consider Ms Mulcahy’s grounds of appeal by reference to the issues identified in the submissions made on her behalf.  In so doing, I have grouped consideration of the grounds under the issues as summarised by Mr Hii who appeared for Ms Mulcahy. I also have borne in mind the role of the appeal tribunal: unless there is an error in the Member’s approach, such that there was a failure to properly exercise the discretion, it is not my role as the appeal tribunal to substitute my own view of how, if I had been in the position of the Member, I might have exercised the discretion.^[5]

Grounds of appeal

(a) Applying the incorrect test of ‘vexatious’ (grounds 1, 2 and 3)

21. [21]
    In written submissions lodged on behalf of Ms Mulcahy, it was accepted that the Member correctly identified the test to determine whether Ms Mulcahy’s applications were vexatious – that is, that they were brought merely for the purpose of annoying, harassing or oppressing Mr Mulcahy – but asserted that the Member did not apply that test.
22. [22]
    The submissions referenced paragraph 66 of the Member’s reasons, which stated:

I do accept that this was an exceptional case.  I consider that the application was vexatious in that it was brought to substantially annoy and be oppressive to Russell Mulcahy.  I also accept that continuing with the matter via an oral hearing was vexatious in that there was such little prospect of success given the Public Guardian’s findings.

23. [23]
    The expression ‘vexatious’ is not defined in the GA Act. That a proceeding brought merely for the purpose of annoying, harassing or oppressing is vexatious is but one of the ways the meaning of the expression has been stated. As Ms Mulcahy’s own submissions pointed out, it has also been said that ‘vexatious means productive of serious and unjustified trouble and harassment’.^[6]
24. [24]
    A fair reading of the Member’s reasoning is that the Member considered that, as a consequence of Ms Mulcahy bringing the application and persisting with it, Mr Mulcahy was put to unjustified trouble and harassment by being called upon to respond to serious allegations for which no substantive evidence was adduced.
25. [25]
    In any case, the Member also rejected a submission that there was nothing extraordinary about Mr Russell being called upon to respond to these allegations and observed that ‘In circumstances where there is no evidence of wrongdoing by the attorney, but merely a conflict between an attorney and a family member, it is not the norm for an application to be brought to the Tribunal’.^[7]
26. [26]
    That conclusion, which it was open for a member of the Tribunal experienced in the guardianship jurisdiction to reach, is quite capable of supporting a conclusion that the application was exceptional, whether or not it falls within the meaning of vexatious. There is no legal error in the Member’s implicit conclusion that a case that is ‘not the norm’ is exceptional.

(b) Failure to consider TASC (Toowoomba Advocacy and Support Centre) email of 4 November 2016 and attachment and ADA (Aged and Disability Advocacy Australia) letter dated 6 November 2016 (grounds 2, 3 and 4)

27. [27]
    At paragraph 61 of his reasons, the Member noted that Ms Mulcahy argued that the late Mrs Mulcahy had been expressing concerns about various matters as indicated in submissions from advocates Adam Waterhouse and Vivian Boyd.  Ms Mulcahy’s submissions on the appeal advised that the references in the Member’s reasons to Adam Waterhouse and Vivian Boyd are references to the TASC email and ADA letter respectively, which had been forwarded directly to the Tribunal by those organisations.  The Member noted that these submissions ‘were not agitated before the Tribunal on the day of the hearing’.^[8]
28. [28]
    Mr Hii argued that whether the submissions were agitated on the day of the hearing was beside the point as they were still part of the material before the Tribunal and should have been taken into account as evidence of Ms Mulcahy’s genuineness in bringing her application, notwithstanding Mrs Mulcahy’s lack of capacity and poor memory.
29. [29]
    The difficulty with Mr Hii’s submission is that the Member did indeed have regard to the views of the advocates. The Member concluded that they should be given little weight, because of Mrs Mulcahy’s lack of capacity and poor memory. It was for the Member to determine the weight to be given to the submissions.  The conclusion that they should be given little weight is not irrational or unreasonable, particularly in circumstances where the Member noted that there was nothing about removal of Mr Mulcahy as attorney in the submissions.
30. [30]
    Further, TASC and ADA acted as advocates for the late Mrs Mulcahy.  The email and letter were sent directly to the Tribunal registry and there is no evidence to suggest that what was conveyed by Mrs Mulcahy in her discussions with the advocates was communicated to Ms Mulcahy.

(c) Continuing with the oral hearing was not vexatious, and failure to appreciate or take into account the benefits flowing to Mrs Mulcahy (grounds 1, 2, 3 and 8)

31. [31]
    Mr Hii relied on the decision in HB [2011] QCAT 110.  In this case, the applicant sought appointment of a guardian and administrator for his mother in the context of accusations of undue influence against other parties. The application was refused, on the basis that the presumption of capacity had not been rebutted by the evidence. 
32. [32]
    The Tribunal described the applicant’s evidence as weak but rejected a submission that the application was vexatious and declined to make a costs order. The Tribunal noted that it is not an uncommon event that applications for appointment of a guardian or administrator are dismissed because the evidence is not found to amount to a rebuttal of the presumption of capacity.^[9]
33. [33]
    A conclusion that it is not uncommon for an application to be refused on the basis of failure to rebut the presumption of capacity is quite different to a conclusion that it is exceptional for an application to be made based on allegations of financial impropriety without any substantive supporting evidence.  Accordingly, I find this case to be of little assistance.
34. [34]
    It was also submitted that a finding that continuing with the application in the face of the Public Guardian’s report was irrational or unreasonable, and failed to take into account that the report was only available a day before the hearing and that Ms Mulcahy, who was then unrepresented, did not read the report until the afternoon before the hearing.
35. [35]
    It is not clear to me why the time when Ms Mulcahy read the report is said to point to the Member’s decision being irrational or unreasonable. The terms of the report are unequivocal and the findings were clearly summarised.  More to the point, though, Ms Mulcahy initiated and continued the application without substantive evidence of the impropriety she had alleged.  Whether or not that amounts to vexatiousness, the conclusion that it was exceptional was, in my view, clearly open to the Member for the reasons already indicated regardless of the contents of the report.
36. [36]
    In any case, to the extent that the submissions for Ms Mulcahy suggest that the Member was in error by concluding that the continuing of the application after receiving the Public Guardian’s report was vexatious, I consider that the submission is not supported by the Reasons.  A fair reading of the Reasons as a whole is that the Member considered that the action of commencing and continuing the application without supporting evidence was vexatious. That the Member referred to both aspects does not mean that the Reasons may be artificially dissected and each aspect tested in isolation for irrationality, unreasonableness or conformity with the meaning of vexatious.
37. [37]
    Under these grounds, Ms Mulcahy also submits that the Member failed to take into account the benefits flowing to Mrs Mulcahy from the directions the Member made in relation to future communications between Mr Mulcahy and Ms Mulcahy. 
38. [38]
    It is true that the Member did not explicitly state that these directions would have provided ‘benefits’ to Mrs Mulcahy. However, the Member referred to the directions, describing them as ‘of a relatively minor nature’, made in recognition of the conflict between Mr Mulcahy and Ms Mulcahy, and noting that they could have been achieved by a simpler application for directions rather than an application for guardianship and administration.
39. [39]
    Remembering that it is the Member himself who made the directions, it is difficult to accept that the Member, having referred to them in his Reasons, failed to appreciate their benefit to Mrs Mulcahy. In any case, it is clear that the Member took the directions into account in reaching his decision on the exercise of the discretion and determined, as he was entitled to, the weight to be given to them.

(d) No evidence to support finding that the applicant’s accusations were false (grounds 4, 5, 6 and 7)

40. [40]
    Written submissions filed on behalf of Ms Mulcahy assert that the Member ‘made a factual finding that the accusations made by the applicant were false’ and that there was no evidence to support such a finding.
41. [41]
    It is important to consider the Member’s comments in the context in which they appeared in paragraph 65 of the Reasons:

I do not consider Catherine Mulcahy’s arguments regarding Russell Mulcahy’s legal representation and his representative to be of any substance.  I accept Russell Mulcahy’s arguments that Catherine Mulcahy provided no substantive evidence to support any of the allegations that she was making. I accept that he was required to engage solicitors to assist him in defending the false accusations, and that she used the tools of the guardianship regime to vent her frustration and anger against him.

42. [42]
    Viewed in context, it is clear that the Member’s reference to ‘false accusations’ is a reference back to the conclusion in the previous sentence that Ms Mulcahy ‘provided no substantive evidence to support any of the allegations that she was making’.
43. [43]
    Ms Mulcahy’s submissions say that a finding that allegations are not substantiated is ‘a far cry from’ a finding that the allegations were false. There are two difficulties with this submission. 
44. [44]
    First, it was open to the Member to draw an inference that allegations that were not supported by any evidence were false.
45. [45]
    Secondly, when the Reasons are read as a whole, it is clear that the Member concluded that what distinguished this case, and made it exceptional, was that the application was brought on the basis of accusations of financial impropriety that were not supported by any substantive evidence. That finding does not rely on characterising the allegations as ‘false’.
46. [46]
    Ms Mulcahy’s submissions also pointed out that the Public Guardian’s report found two of three allegations investigated – about misuse of funds and a credit card - to be unsubstantiated, but the third was substantiated.
47. [47]
    The third allegation related to Mr Mulcahy’s private use of Mrs Mulcahy’s motor vehicle. This was found to be substantiated in the sense that the report found that Mr Mulcahy had been using the vehicle.  However, as the Member noted, this use was with the permission of Mrs Mulcahy.^[10] It is therefore clear that the Member took into account that the allegation was ‘substantiated’ in the sense intended by the report.

Conclusion on application for leave to appeal

48. [48]
    Having regard to the reasons outlined in relation to the issues discussed above, I consider that the application for leave to appeal does not raise a reasonably arguable case of error. In any case, given the circumstances of the matter, in which Ms Mulcahy brought and continued an application based on serious accusations unsupported by any substantive evidence, I consider that Ms Mulcahy would have poor prospects of obtaining substantive relief.
49. [49]
    Further, this matter does not raise any point of principle in relation to which a decision of the appeal tribunal would provide a public benefit.  The concept of vexatiousness in the context of litigation is a longstanding one. It has been considered in numerous cases. It is not suggested that the expression should take any different meaning in its context in s 127 of the GA Act. The expression ‘exceptional’ takes its ordinary meaning. It is accepted that it would be unwise to attempt to lay down any general rule with regard to what is an exceptional case.
50. [50]
    Nor is this a case where leave is required to correct a substantial injustice.  Even if, contrary to my reasoning, there was an error in the Member’s approach, it is not clear that any such error has led to an injustice. 
51. [51]
    Ms Mulcahy brought and continued the application based on allegations against Mr Mulcahy, but failed to adduce any substantive evidence to the support the allegations. Mr Mulcahy reasonably incurred legal costs in responding to the allegations,^[11] which were of a serious nature. I see no substantial injustice in requiring Ms Mulcahy, rather than Mr Mulcahy, to bear those costs. There is no reason to confine the costs ordered to be paid to those relating to the hearing itself since, as noted, the vexatious or exceptional nature of the case stems from Ms Mulcahy both bringing and persisting with the application.
52. [52]
    Accordingly, I have concluded that leave to appeal should be refused.