Mulcahy v Mulcahy[2019] QCATA 182

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 30 May 2018, I refused Ms Catherine Mulcahy’s application for leave to appeal against an order of the Tribunal that she pay the costs of her brother, Mr Russell Mulcahy, relating to responding to her largely unsuccessful applications for guardianship and administration orders in relation to their late mother, Mrs Lorraine Mulcahy. The member had concluded that Ms Mulcahy’s applications were vexatious.^[1]
2. [2]
   Mr Mulcahy has now sought an award of costs in the appeal against Ms Mulcahy.
3. [3]
   There is a preliminary issue whether the application for costs falls for consideration under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) or the Guardianship and Administration Act 2000 (GA Act).

Is the application for costs to be determined under the QCAT Act or the GA Act?

4. [4]
   The question of costs in Tribunal proceedings is ordinarily governed by, among other provisions, s 100 and s 102 of the QCAT Act. The usual rule in s 100 is that each party to a proceeding must bear their own costs, but under s 102 the Tribunal may make a costs order if it considers the interests of justice the order to be made.
5. [5]
   However, s 127 of the GA Act relevantly provides:

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.

6. [6]
   It was common ground that costs in Ms Mulcahy’s original application fell for consideration under s 127, and not under the QCAT Act. However, Mr Thomas in written submissions on behalf of Mr Mulcahy argued that s 127 does not apply when considering costs in the appeal which, he submits, are governed by s 100 and s 102 of the QCAT Act. Ms Mulcahy maintains that s 127 of the GA Act applies.  Neither party identified any authorities addressing this question.
7. [7]
   The challenge for Mr Thomas’s submission is that s 101 of the GA Act specifically provides that s 100 and s 102 of the QCAT Act do not apply ‘in relation to proceedings under this chapter [ie Chapter 7]’.
8. [8]
   Mr Thomas addressed this challenge by submitting that the application for leave to appeal the costs order, was not a proceeding under Chapter 7 of the GA Act, notwithstanding s 163 of that Act, which provides:

9. [9]
   Rather, Mr Thomas submitted that the appeal proceeding was a proceeding under the QCAT Act because s 163 refers to ‘a proceeding as provided under the QCAT Act’. There is some textual support for that submission in the statement in s 163(2) that non-appellable decisions ‘cannot be appealed under the QCAT Act’.
10. [10]
    However, the more natural reading of s 163(1) appears to me to be that the words ‘a proceeding’ relate to the preceding reference to a Tribunal decision, such that it is a Tribunal decision in a proceeding under the GA Act against which an eligible person may appeal. In turn, the words ‘as provided under the QCAT Act’ relate to how an eligible party may appeal against such a decision. That is, an appeal may be brought against a Tribunal decision in a proceeding under the GA Act as – that is to say, in the way – provided under the QCAT Act.
11. [11]
    That construction does not make the appeal any less a proceeding under Chapter 7 of the GA Act.  Section 163 provides an eligible person with a right of appeal. It is located in Chapter 7 of the GA Act.  The appeal is a proceeding provided for in Chapter 7 and is, in my view, correctly described as a proceeding under Chapter 7.
12. [12]
    I therefore conclude that this matter falls to be decided by reference to s 127 of the GA Act.

Should costs be awarded?

13. [13]
    Again, neither party identified any authorities directly relevant to the application of s 127.
14. [14]
    The starting point must be that, under s 127(1), each party must bear their own costs unless, as a matter of discretion, costs are awarded under s 127(2). In the substantive appeal against the costs award below, I concluded that the discretion to award costs is enlivened when there are exceptional circumstances that warrant a costs order being made and that ‘exceptional’ takes its ordinary meaning.
15. [15]
    Mr Thomas submitted that, if the matter falls for consideration under s 127, whether there are exceptional circumstances requires consideration of all of the circumstances that led up to and culminated in the appeal proceedings, as well as the conduct and outcome of the appeal. I respectfully agree that the appeal cannot be considered in a vacuum, devoid of the surrounding context.
16. [16]
    In that regard, Mr Thomas submitted that attention must be given to (a) the vexatious (I would interpolate here, at least exceptional) nature of the proceedings at first instance; (b) that the appeal represented ‘persistence with failed litigation’; and (c) the relative weakness of the applicant’s case on appeal. I have given weight to the first and third of those considerations in particular. The second of the three considerations I have given less weight to, since it merely states the natural consequence of an unsuccessful appeal. 
17. [17]
    However, it is also important not to allow considerations relevant to the nature and conduct of the application at first instance to swamp the statutory task of considering whether there are exceptional circumstances that warrant the making of an order for payment of costs in the appeal.
18. [18]
    While the original application was found to be vexatious, there is nothing to suggest that Ms Mulcahy’s appeal was vexatious or frivolous. The costs awarded were not insignificant and Ms Mulcahy was entitled to seek leave to test the member’s decision. There is nothing exceptional in a party seeking to appeal an adverse decision, especially where, as here, the decision had at its heart matters of characterisation which it has been observed may readily strike different minds differently.^[2] That I concluded that the case on appeal was not strong is not in itself sufficient to characterise the case as exceptional.
19. [19]
    I conclude that the circumstances do not warrant an exercise of the discretion to order that Ms Mulcahy pay Mr Mulcahy’s costs in the appeal.