TCN v Public Guardian[2022] QCATA 158

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 30 May 2018, TAJ made an enduring power of attorney (EPA) pursuant to the Powers of Attorney Act 1998 (Qld) (POA Act) appointing TL as attorney for all of her financial matters, and her health and personal matters. The EPA was witnessed by a solicitor, Mr Rudz, who had asked for a health professional report in advance as to whether TAJ had the requisite capacity to make an EPA. A report dated 28 May 2018 from Dr Botha confirmed that, in her opinion, TAJ had the requisite capacity.
2. [2]
   Subsequently TCN made various applications to the Tribunal including seeking four notices to produce documents, (including for the records and file respectively of Dr Botha and Mr Rudz); for an order about an EPA; and for a declaration about capacity.  At the hearing, several (other) of TCN’s applications were withdrawn by her with leave of the Tribunal.
3. [3]
   The Tribunal determined the remaining applications at an oral hearing on 26 March 2021. During the course of the hearing, the Tribunal refused the applications for notices to produce. A written decision was not given in respect of that decision. At the conclusion of the hearing, the Tribunal made orders as follows:

LEAVE TO WITHDRAW APPLICATIONS

1. Leave is granted to [TCN] to withdraw her application for directions, her application for authorisation of a conflict transaction and her application for an Adult Evidence Order.   

ENDURING POWER OF ATTORNEY

2. The following Enduring Power of Attorney for [TAJ] is declared valid pursuant to s113(2) of the Powers of Attorney Act 1998 and s82(2) of the Guardianship and Administration Act 2000:

1. (a)
   The Enduring Power of Attorney dated 30 May 2018 appointing [TL] and [TJA] (successively) as attorneys for financial, personal and health matters.

DECLARATION ABOUT CAPACITY

3. [TAJ] has capacity for all personal matters.

LIMITATION ORDERS

4. The application for a confidentiality order for [TAJ] is dismissed.

COSTS

5. The Tribunal orders [TCN] to pay [TL’s] costs of the application for an order about an Enduring Power of Attorney fixed at $15,000.00.
6. The costs as fixed must be paid within twenty eight (28) days of this order.

4. [4]
   TCN seeks to appeal the Tribunal’s decision in respect of the orders made refusing the applications for notices to produce, the declaration that TAJ had capacity for making the EPA in 2018 and at the date of the hearing, and the order for costs. For the reasons explained in the following paragraphs, leave to appeal is granted and the appeal must succeed in relation to the costs application pursuant to the POA Act, but leave to appeal is refused in respect of the balance of the grounds of appeal.

The grounds of appeal

5. [5]
   TCN articulates five grounds of appeal in her application for leave to appeal or appeal.^[1] She more succinctly summarises her grounds of appeal in her written submissions. The summarised grounds of appeal are as numbered 1-5 below, followed by a brief description in each instance as contained in the application for leave to appeal or appeal, as follows: ^[2]

Ground 1: in refusing to issue notices to produce directed to certain persons or entities.

The Tribunal erred in refusing to issue the notices to produce to Mr Rudz and Dr Botha and Golden Age Aged Care and Broadbeach Family Practice in circumstances that they were each likely to have documents relevant to whether the presumption of capacity was rebutted at 30 May 2018.

Ground 2: in finding the details of Mr Rudz’ attendance on TAJ were privileged.

The Tribunal erred in finding the details of Mr Rudz attendances with TAJ in relation to preparation and witnessing of the EPA were privileged.

Ground 3: in finding that the presumption of capacity in relation to the TAJ was not rebutted at critical times.

The Tribunal erred in finding the presumption of capacity was not rebutted as at 30 May 2018 or the date of hearing in circumstances where there was evidence of impaired capacity prior to those dates; the evidence was found to be incomplete; the notices to produce were refused; and the Tribunal inferred Mr Rudz ‘would …satisfy himself as to her [TAJ’s] understanding’ of the powers granted by the EPA.

Ground 4: in finding TL was entitled to an order for costs

The Tribunal erred in finding TL was entitled to an order for costs without making a finding pursuant to s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). 

Ground 5: in not considering the matters it was required to consider in exercising its power to award costs.

The Tribunal erred in making an order against TCN relying on the POA Act solely (without considering the QCAT Act and) whether it should depart from the decision in RJG [2016] QCAT 127.

6. [6]
   At the oral hearing of the appeal proceeding, TCN clarified that grounds 4 and 5 include an alleged breach of procedural fairness. In particular, TCN was denied procedural fairness in circumstances that an application for costs pursuant to the POA Act was made at the conclusion of the hearing; the Tribunal itself raised costs under the POA Act (when an application had been made for costs under the Guardianship and Administration Act 2000 (Qld)); TCN was not given the opportunity to make considered submissions about the application; and an order was made for TCN to pay costs pursuant to s 125 of the POA Act.
7. [7]
   Leave to appeal is not generally required in respect of an appeal in respect of a question or questions of law.  However, an appeal against a decision that is not the tribunal’s final decision in the proceeding; an appeal against a costs order; or an appeal on a question or questions of fact only or mixed law and fact may proceed only with the leave of the appeal tribunal.^[3] All grounds of appeal here therefore require leave to appeal. The grounds in 1, and 2 above, insofar as they relate to the decision refusing to issue the notices to produce, are against a decision that is not the Tribunal’s final decision. Ground 3 raises questions of mixed law and fact. Grounds of appeal 4 and 5 are in relation to a costs order. Leave to appeal will usually be granted only where there is a substantial injustice to be corrected and there is a reasonable argument of error by the Tribunal.^[4]
8. [8]
   An appeal on a question or questions of law alone must proceed pursuant to s146 of the QCAT Act. It is an appeal in the strict sense. An appeal on a question of mixed law and fact must proceed under s 147 of the QCAT Act by way of rehearing. Any question of law also arising can then be dealt with in the rehearing.

Background

9. [9]
   Before turning to the grounds of appeal, it is useful to outline the relevant background circumstances. TCN submits that, prior to 2012 when TAJ left her mother’s home, TAJ was always treated as though she had impaired capacity for making some decisions having regard to some observable deficits. It emerged after the death of her father, that TAJ had been abused physically and psychologically for many years by her mother who was said to be very controlling.
10. [10]
    TAJ’s only sibling, a brother, brought her to Queensland. He had sought appointment as administrator for TAJ in the Tribunal but subsequently, with leave of the Tribunal, withdrew that application. In April 2012, TAJ executed a Queensland EPA in favour of her brother. TAJ lived with her brother and his wife, TL, for some time. In 2013, she moved to Golden Age Aged Care facility but enjoyed ongoing support from her brother and TL. In August 2015, she executed two NSW enduring documents, one for financial matters and the other for personal matters, in favour of her brother. Shortly after her brother died in 2018, TAJ executed a new Queensland EPA in favour of TL, and shortly thereafter, a NSW EPA for financial matters. She also moved from Golden Age Aged Care to a different aged care facility.
11. [11]
    I now turn to consider the grounds of appeal.

Ground 1: did the Tribunal err in refusing to issue the notices to produce?

12. [12]
    On 30 October 2020, TCN applied for four notices to produce to be issued. Two of those were to Dr Botha and Mr Rudz. The others were to the Golden Age Aged Care facility where TAJ lived between 2013 and 2018 and the Broadbeach Family Practice where TAJ had been a patient between 2013 and 2016. TCN submitted that their records were likely to assist in determining TAJ’s capacity for making the EPA in favour of TL in May 2018.
13. [13]
    For reasons unknown, the registry did not refer the applications for the notices to produce to the Tribunal for determination until the day of the oral hearing of TCN’s broader applications, namely 26 March 2021. On 26 March 2021, the learned Member dealt with the applications for notices to produce as a preliminary issue. The Tribunal sought and heard oral submissions from the parties about the applications for notices to produce and then made a decision to refuse the applications to issue the notices to produce.
14. [14]
    In particular, the Tribunal explored how Broadbeach Family Practice records were said to be relevant in determining TAJ’s capacity for the EPA on the relevant date, that is, 30 May 2018 and why TAJ’s human right to privacy should be interfered with by requiring Golden Age’s records. The Tribunal enquired whether TCN knew of particular documents each of them held that might assist with the relevant questions. The response was to the effect that she did not. The learned Member considered Dr Botha’s records relevant and ‘in a different category’^[5] but that nevertheless obtaining the records which would then be available not only to the Tribunal but other people would ‘prima facie be a breach of her right to privacy protected under the Human Rights Act (Qld) 2019.’ ^[6]
15. [15]
    Having heard the applications for notices to produce, the Tribunal then gave oral reasons for decision and an oral decision refusing to issue the notices to produce, before then proceeding to hear and determine the substantive applications before it. In relation to the notices to produce, in summary, the learned Member was not satisfied, based on the submissions made, particularly in respect of Broadbeach Family Practice and Golden Age Aged Care that the records had ‘enough direct relevance to today’s issues for determination’^[7] to warrant issuing the notices, noting that ‘fishing expeditions’ are not allowed.
16. [16]
    In relation to Dr Botha’s records, the Tribunal concluded that in circumstances that Dr Botha had already certified that TAJ had capacity to grant an EPA, it was not satisfied that eliciting the documents providing the basis for the opinion was necessary in the proceedings. In relation to Mr Rudz’ file, the Tribunal found that Mr Rudz had filed a statement explaining that TAJ had demonstrated an ability to understand the nature and effect of making an EPA. The Tribunal observed that his statement had not addressed the matters set out in s 41 of the POA Act but considered the absence of reference to them did ‘not ….undermine the cogency of the opinion of Mr Rudz expressed….’.^[8] Therefore, the notice was not issued. The Tribunal observed that TCN had not sought a notice for Mr Rudz to attend the hearing to give oral evidence.
17. [17]
    TCN submits that the concern about TJ’s capacity stemmed from her known history of impaired decision-making capacity and in that context, the Tribunal would be assisted by identifying whether her impairments were static or changed over time, and/or had in fact improved. Therefore, she argues the historical materials from Golden Age Aged Care and Broadbeach Family Practice were directed to allowing the Tribunal to perform the assessment at hand. She submits that the records of Dr Botha and Mr Rudz are more directly relevant, essentially because neither of them in their statements before the Tribunal explained the basis for their conclusions about TAJ’s capacity and Mr Rudz did not provide his contemporaneous notes.
18. [18]
    She submits that Dr Botha’s opinion is at odds with the historical opinion of Ms Naidoo, a social worker, and the ACAT assessment. Further, that the Tribunal needed to know whether TAJ was alone when she made the EPA in light of evidence about her suggestibility.^[9]
19. [19]
    She further argues that, in refusing the applications for notices to produce, the Tribunal failed to ensure pursuant to s 130 of the Guardianship and Administration Act 2000 (Qld) (‘GA Act’) that it had all the relevant information and material to decide the matter. Section 130 of the GA Act is in the following terms:

130 Tribunal to ensure it has all relevant information and material

3. (1)
   To hear and decide a matter in a proceeding, the tribunal must ensure, as far as it considers it practicable, it has all the relevant information and material.

3. (2)
   At the tribunal’s request, a person who has custody or control of information or material that the tribunal considers is necessary to make an informed decision about the matter must give the information or material to the tribunal, unless the person has a reasonable excuse.

3. (3)
   The tribunal may order a person to give information or material to the tribunal.

3. (4)
   If the tribunal orders a person to give it information or material, the person must comply with the order, unless the person has a reasonable excuse.

3. (5)
   It is a reasonable excuse for a person to fail to give information or material because giving the information or material might tend to incriminate the person.

3. (6)
   Subject to subsection (5) , this section overrides—

1. (a)
   any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and

2. (b)
   any claim of confidentiality or privilege, including a claim based on legal professional privilege.

20. [20]
    At the outset, I observe that the Tribunal had before it at the hearing a significant volume of evidence. In its broader oral reasons for its decision on the substantive applications at the conclusion of the hearing, it refers to the range of documents it took into account in deciding the applications before it on that day.^[10] Relevantly here, these included health professional evidence including an ACAT Assessment dated 11 January 2012; a report from Ms Naidoo, social worker dated March 2012; a Mini-Mental State Examination; a Psychogeriatric Assessment document from an assessment done in February 2018; Dr Botha’s report dated 28 May 2018; and a report of Dr H dated 26 July 2019. It also considered the evidence given by each of the parties and OCA (who was not an active party and said not to have an interest in the proceeding) who has known TAJ all of her life. It appears she is TAJ’s cousin.
21. [21]
    It is apparent that the Tribunal was aware of TCN and OCA’s expressed concerns about TAJ’s capacity based on the background outlined earlier. In her 2012 health professional report (HPR), Ms Naidoo expresses the opinion that TAJ has capacity to make an EPA, notwithstanding that she refers to TAJ having an intellectual disability possibly attributable to her mother having measles during her pregnancy with TAJ. Ms Naidoo further states that in her opinion TAJ can make all personal and health care decisions (simple and complex), and simple financial decisions. Although she opines that she would require assistance with more complex financial decisions, she does so in the context of her abusive and controlling mother having prevented her from making her own decisions and impeded TAJ from reaching her full potential.
22. [22]
    The ACAT assessment^[11] also prepared by Ms Naidoo dated 3 April 2012 refers to TAJ’s difficulty managing activities of daily living, but in the context that TAJ has a very significant visual impairment. It expands upon TAJ’s report of verbal psychological and physical abusive behaviours and social isolation at the hands of her mother. It otherwise contains similar comments as the Ms Naidoo’s HPR, noting that TAJ was able to clearly articulate herself and understand information presented simply and clearly. It notes some difficulty with calculation and the requirement for assistance with more complex financial matters. That is hardly surprising in the context of TAJ, having some level of intellectual disability, but also having a significant visual impairment.
23. [23]
    I do not accept the argument that Dr Botha’s report opining that TAJ had capacity to make an EPA is ‘at odds’ with Ms Naidoo’s HPR and ACAT assessment. I make the observation that Ms Naidoo’s 2012 reports do not appear to contradict Dr Botha’s opinion or indicate Ms Naidoo considered TAJ did not have capacity to make an EPA, even in 2012, although the Tribunal properly concerned itself with her capacity to make the EPA on 30 May 2018.  
24. [24]
    In my view, it is apparent that the Tribunal already had before it a range of evidence about TAJ’s capacity generally including for the period for which any documents from Golden Age Aged Care and Broadbeach Family Practice might relate. But in any event, the issues for the Tribunal at the hearing concerned TAJ’s capacity to make the EPA on 30 May 2018 and her capacity for personal matters at the date of the hearing. There were, as the Tribunal elicited, no particular documents sought to be produced by them which were said to be relevant to TAJ’s capacity to make the EPA at the relevant date in 2018 or for personal matters at the date of the hearing.
25. [25]
    Dr Botha’s report set out her opinion that, having examined TAJ on that day, she has capacity to make ‘important decisions’ for herself, and has capacity to make an EPA.^[12] (Again, I make the observation that this opinion does not appear to be inconsistent with the earlier 2012 reports of Ms Naidoo.)
26. [26]
    In relation to Mr Rudz’ file, although the Tribunal considered the absence of reference to s 41 of the POA Act in the statement he provided was ‘unfortunate,’ it considered that did not undermine its cogency. That finding was open to the Tribunal.  Further, in my view the Tribunal correctly observed that if his evidence was to be challenged, TCN could have applied for a notice requiring Mr Rudz to attend the hearing to be cross-examined on his statement, but she had not. Nor, I observe further, did she seek an adjournment of the proceedings on the basis that in light of the Tribunal’s refusal to issue the notices to produce, she intended to apply for such a notice.
27. [27]
    Whereas the Tribunal could require information be provided to it pursuant to s 130 of the GA Act, it may do so if it considers it necessary to request it so as to have all the relevant information before it for hearing and deciding the matter. The Tribunal was considering applications before it for notices to produce to be issued. It was not submitted to the Tribunal that it should turn its mind to s 130 of the GA Act. That said, later in the Tribunal’s reasons for decision at the conclusion of the hearing, in discussing Mr Rudz’ assertions of privilege, as later discussed in relation to Ground 2, the Tribunal adverts to its power to require information. On this basis, I make the observation that it seems apparent that learned Member was cognisant of what is provided for by s 130.  However, in any event, it is sufficiently clear from the Tribunal’s reasons for decision that it was satisfied that it had all the relevant information and material to properly consider and determine the applications before it. In my view, that conclusion was open to the Tribunal on the material before it.
28. [28]
    For these reasons, I am not satisfied that the Tribunal erred in refusing the applications for the four notices to produce to issue. Leave to appeal should be refused.

Ground 2: Did the Tribunal find Mr Rudz file was privileged? If so, did it err in doing so?

29. [29]
    Mr Rudz states in his filed statement that he has not provided his attendance notes with TCN because they are privileged. ^[13] TCN argues that there is no basis for the claim of privilege, and that regardless, the Tribunal had power to require production of the material. TCN alleges that the Tribunal accepted this claim of privilege in error. TL says the claim was not accepted. In particular, the Tribunal said it could require production of the documents.
30. [30]
    As discussed earlier, the Tribunal heard and determined the applications for the issue of the notices to produce as a preliminary issue. Having given it decision and oral reasons for refusing those applications, it then proceeded to hear and determine the substantive applications before it.
31. [31]
    In giving its oral reasons at the conclusion of the hearing of the substantive applications, the learned Member quoted from Mr Rudz statement.^[14] After quoting from Mr Rudz’ statement, wherein he says that the ‘details are privileged’, the Tribunal then stopped quoting from the statement, and said in essence, that whereas they are privileged, the Tribunal could have required they be produced under the GA Act, but it had not required production.
32. [32]
    TCN submits that the Tribunal erred in accepting the claim for privilege and not issuing the notice to produce. She says it thereby failed to ensure, pursuant to s 130 of the GA Act, that it had all of the relevant material on which to decide the application.
33. [33]
    I am not satisfied, assuming for the moment that the learned Member did accept and was wrong to accept that the communication was privileged, that reveals any material error (or indeed, that any consequence flows from that finding). The statements complained about were made in the Tribunal’s reasons for its substantive decision made at the conclusion of the hearing, not in its earlier preliminary reasons for refusing to issue the notice to produce for his file. In any event, why ever the Tribunal referred to this, and whatever was meant by the Tribunal in stating that they are ‘privileged’, at that point in deciding the broader substantive applications, it went on to say that it could have required the file be produced under the GA Act.
34. [34]
    In the circumstances, even if there was an error by the Tribunal, which I do not accept, I am not satisfied that it was material to either the Tribunal’s decision to refuse to issue the notice to produce, or, in any event, the outcome of the substantive applications before the Tribunal.
35. [35]
    Insofar as the ground of appeal alleges error in the Tribunal’s decision to refuse to issue the notice to produce to Mr Rudz, leave to appeal should be refused because privilege was not a reason expressed in the Tribunal’s reasons for decision in refusing to issue the notice to produce documents to Mr Rudz. Insofar as the ground of appeal may be raised in respect of the Tribunal’s substantive decision, no error has been identified, and if I am wrong about that, any error is not, in any event, material. Therefore, the appeal must fail.

Ground 3: Did the Tribunal err in finding the presumption of capacity was not rebutted for TJ at 30 May 2018 and at the date of the hearing?

What did the Tribunal decide?

36. [36]
    As discussed earlier, the Tribunal explained the documents it took into account in relation to TAJ’s capacity.^[15] These include the applications and statements from TCN and OCA, TAJ, TL, Stephen Rudz, and others, as well as various medical reports. It also refers to submissions of the parties.
37. [37]
    The Tribunal says that it must take into account the cogent relevant evidence and prefer the best evidence to evidence of a background nature.^[16]  In considering TAJ’s capacity to make an EPA on 30 May 2018, the learned Member considers the best evidence is the evidence at or around the date of the EPA was granted. It considered the ACAT assessment, the HPR of Ms Naidoo, and the MMSE in 2017 were not the ‘best evidence available’ and gave them less weight than the Psychogeriatric Assessment Report and in particular, the report of Dr Botha. Dr Botha’s opinion was given directly about whether TAJ had capacity to make an EPA and gave her opinion two days prior to the making of the EPA. The learned Member considered that report and opinion very relevant.
38. [38]
    The Tribunal discussed TCN’s submissions that she (the learned Member) should have some doubt about the opinion because of the last sentence of the report, namely ‘She understands that all aspects of her healthcare, financial administration will continue as before.’ The learned Member did not accept that the statement adversely qualified Dr Botha’s opinion that TAJ had the capacity to grant the EPA. She explained by saying that merely granting an EPA does not mean all such aspects will continue as before, but here it was the case that TAJ’s brother operated the EPA in a particular way and TL had not materially changed the arrangements after her appointment.
39. [39]
    Further, the learned Member said that she also had the statement of Mr Rudz, a lawyer since 1975, who was experienced in taking instructions for and preparing EPAs for clients, who says he satisfied himself that TAJ understood the nature and effect of an EPA and made it freely and voluntarily. His statement says that ‘in addition’ he arranged for her treating medical practitioner to provide a report about her capacity. The learned Member noted that Mr Rudz’ statement used the words of s 41 of the POA Act in referring to satisfying himself that she ‘understood the nature and effect’ of an EPA, which in s 41(2), sets out a non-exclusive list of matters included in understanding the nature and effect of an EPA.  The learned Member observes that although he did not go into detail as to the matters in s 41(2), he makes his statement as an officer of the Court.
40. [40]
    The Tribunal refers to the Psychogeriatric Report dated February 2018, and updated in May 2018, as referring to ‘some mild cognitive impairment.’ The learned Member observes that this was not equivalent to ‘a lack of decision-making capacity’.
41. [41]
    In relation to other evidence and health professional reports which are given less weight by the Tribunal, the learned Member says some reports may suggest TAJ may have impaired capacity for some complex financial decisions, she observes that none set out factual basis usually present in such a case such as ongoing confusion, delusional ideation, or impaired short or longer term memory. She describes the evidence as ‘really very limited’^[17], in particular in referring to the cards and letters of TAJ. Further, she says that evidence of TAJ having a naïve communication style or ‘relatively childlike’ manner, does not satisfy her that TAJ does not understand the nature and effect of granting an EPA.
42. [42]
    In discussing the evidence, the learned Member postulates that Mr Rudz, being an experienced solicitor, if faced with a client who presents in a naïve or childlike manner, might be expected to have gone through the document to satisfy himself as to her understanding.
43. [43]
    While she considered the evidence before the Tribunal ‘not complete’, in context as to the underlying basis for Mr Rudz’ satisfaction that TAJ understood the nature and effect of granting an EPA and how she had demonstrated that to him, she accepted his clear statement that he had satisfied himself that she understood the relevant matters.  She considered the ‘evidence, otherwise’ is very limited and does not touch on the crucial point, whether on 30 May 2018, TAJ could demonstrate an understanding of the nature and effect of granting an EPA.^[18] In the face of Dr Botha and Mr Rudz’ statements, and an absence of evidence tending to rebut the presumption of capacity, the learned Member found the only conclusion she could reach was in effect, that the presumption was not rebutted. She declared the EPA made on 30 May 2018 was validly made.
44. [44]
    The Tribunal went on to make a declaration that TAJ presently has capacity to make all personal decisions. In doing so, it observed that TL had not exercised power under the EPA for personal matters, because TL had not formed the conclusion that TAJ had impaired capacity for personal matters.  The learned Member was satisfied that the evidence before the Tribunal demonstrated that TAJ has, since 2012, been able to exercise her own decision-making powers in relation to a range of matters, at times with family support. The Tribunal explained that relying on others for assistance does not inevitably mean that decision-making capacity is impaired.

Discussion

45. [45]
    TCN submits that the capacity to make an EPA is a ‘demanding standard.’^[19] She relies upon the decision of the NSW Supreme Court in Szoda v Szoda^[20] in submitting that it requires the ability to assess two things: namely, whether it is to the benefit and in the interests of the principal to allow another person to have control over all of their affairs, with no duty to seek their permission and with power to do things the principal may not choose to do; and whether it is to the benefit and in the interests of the principal that these things can be done by the particular person proposed to be appointed.
46. [46]
    Although her arguments on appeal may appear to suggest otherwise, TCN acknowledges that the starting point in assessing capacity is that an adult is presumed to have capacity for the matter, but that the presumption can be rebutted.
47. [47]
    TCN’s arguments that the presumption was rebutted relies upon the proposition that there is evidence from TCN herself and OCA that predates the EPA and which demonstrates that TAJ had impaired capacity. Therefore, she contends that in those circumstances, the Tribunal could not simply accept the bare statements of Dr Botha and Mr Rudz as to TAJ’s capacity when the EPA was made, in the absence of their complete information and explanations for the bases of their expressed opinions. Further, the psychogeriatric report simply gives a score for a rating of ‘mild cognitive impairment, without any analysis or explanation as to what this means or how it should be interpreted and so could not assist with capacity for an EPA.^[21]
48. [48]
    As set out above, the Tribunal in considering TAJ’s capacity had read TCN’s and OCA’s statements. On a fair reading, the learned Member considered they contain evidence of a background nature, having regard to the Tribunal’s task to determine whether TAJ had capacity to grant an EPA on 30 May 2018 and for personal matters at the date of the hearing. As set out above, the learned Member found the best evidence in respect of TAJ’s capacity for the EPA, was the evidence at or around the time the EPA was granted. The finding was open to the Tribunal. Capacity is matter and time specific.^[22] There is no error in the Tribunal’s approach in doing so. It was a proper approach and correctly identified the Tribunal’s task in deciding the application. 
49. [49]
    Further, TCN argues that the Tribunal was required to ensure that it had, so far as practicable, all of the relevant information and material.^[23] Further, the evidence of the ‘historical impairments’ raised the question whether the presumption was rebutted, requiring the Tribunal to understand ‘whether and if so how her capacity fluctuated.’ In order to explain the inconsistency,^[24] in particular, she refers to the Tribunal’s own comments that the evidence available was limited and incomplete.^[25] In my view, this misapprehends the Tribunal’s reasons for its decision.
50. [50]
    The evidence described by the Tribunal as ‘limited,’ was as set out above, the evidence it considered less cogent. That was the evidence from TCN and OCA which was more in the nature of background information, and the health professional reports not prepared at the relevant time (that is, not prepared around the time of making the EPA) which did not contain reference to the factual bases, nor disclose the types of cognitive impairments usually associated with a moderate intellectual impairment. While accepting the cards and letters from TAJ may indicate a ‘relatively childlike manner’ and ‘naïve approach’ to communication style, the Tribunal said this did not lead it to consider she was not able to understand the nature and effect of granting an EPA. Further, it did not touch on the crucial point of TAJ’s capacity for the EPA on 30 May 2018.
51. [51]
    On the other hand, the Tribunal considered Mr Rudz’ statement was ‘incomplete.’ He did not explain how he satisfied himself of TAJ’s understanding. However, as set out earlier, the Tribunal said it could not get past his clear evidence that TAJ understood the nature and effect of granting the EPA. The Tribunal’s reasons, on a fair reading, in part, appear to have accepted this was so because of his use of the words from the relevant provision in the POA Act, namely s 41, in his statement. That is, he indicated an awareness of the relevant matters, despite not going into any further detail. But ultimately, the Tribunal was persuaded, it is clear on the basis of the clear evidence of both Dr Botha and Mr Rudz about TAJ’s capacity at the relevant time, and an absence of any compelling evidence to which weight could be attributed that was inconsistent with that evidence.
52. [52]
    As explained in earlier paragraphs, on a fair reading, the Tribunal was satisfied that it had all of the documents and information it needed to hear and decide the applications before it.
53. [53]
    Further, TCN argues the Tribunal was not entitled to infer Mr Rudz undertook the enquiries and process that a solicitor is expected to undertake. Having regard to the Tribunal’s reasons for decision, I am not satisfied that the learned Member did draw that inference. She discussed that he may have done so but did not find he did. On a fair reading of her reasons for decision, she found that she did not have evidence about what he did, but ultimately found that despite the absence of evidence as to that point, she had evidence from both Dr Botha and Mr Rudz of TCN’s capacity to make the EPA, and an absence of (cogent) evidence tending to rebut the presumption. On that basis, she was not satisfied the presumption was rebutted and declared the EPA valid. As discussed, the Tribunal was also satisfied based on the evidence that TAJ had demonstrated capacity for all personal matters.
54. [54]
    In my view, as no error of the Tribunal has been identified, leave to appeal should be refused.

Grounds 4 and 5: Did the Tribunal err in awarding costs

55. [55]
    As explained earlier, although it is not clearly apparent from the stated grounds of appeal in relation to costs, it emerged at the hearing of the appeal proceedings that underlying the alleged errors relied upon by TCN is an argument that the Tribunal denied her procedural fairness in determining costs pursuant to the POA Act. She argues the Tribunal ought to have given her an opportunity to provide considered submissions having regard to the fact the costs application was made orally at the hearing; the Tribunal prompted an application under the POA Act, (when application had been made under the GA Act by TL); and the Tribunal departed from the accepted principles in a relevant costs decision, RAJ.

The application for costs  

56. [56]
    While making submissions about whether the notices to produce should be issued by the Tribunal, TL’s solicitor said that if the hearing was adjourned, costs would be sought. The Tribunal said that it was unlikely to succeed, as costs are only ordered in the jurisdiction in ‘extraordinary matters.’ ^[26]
57. [57]
    Then after deciding the applications before it, the Tribunal asked TL’s solicitor whether the application for costs was made under the POA act or the GA Act. The solicitor said it was made under s 127 of the GA Act on the basis that there are exceptional circumstances. Exceptional circumstances were said to arise because of a variety of circumstances. Firstly, TL’s costs had been wasted for the period up until December 2020, when TCN’s substantial statement dated October 2020 which substantially narrowed the issues, was received by TL. Further, a number of applications were withdrawn at the commencement of the hearing, some five months after their filing, during which time, TL had been represented and taken advice on those applications. Also, the applications for the notices to produce had that day been refused by the Tribunal. Finally, the evidence filed by TCN did not support many of the allegations (to the effect of questioning TL’s motives and actions and acting under a conflict of interest) as originally made. Particularly, she argues the conflict of interest argument was frivolous or vexatious because it related to a number of trusts, when TCN had access to the trust deeds prior to her application, and which made it apparent there was no such conflict.
58. [58]
    The learned Member then herself referred to s 125 of the POA Act, noting that the application for a declaration about capacity for the EPA was determined  primarily under the POA Act. The Member explained that the costs provisions under the POA Act were ‘completely different’ and costs follow the event.^[27] The Member asked whether TL wanted to respond or take some time to look at it. TL’s lawyer immediately amended her application to seek costs under s 125 of the POA Act.
59. [59]
    The Tribunal then asked TCN’s solicitor what she wanted to say in response to the application for costs. TCN’s lawyer submits that it is a family matter. Further, she said TCN had been unable to obtain information about her aunt, when all she wanted was contact with her. TCN’s lawyer submitted that she had advised TL’s lawyer in advance, in January 2021, that the withdrawn applications would not proceed. TL’s lawyer conceded only that advice had been received ‘ at least a week or two prior to’ the hearing that the conflict of interest issue would not proceed, and said that before then TL was unaware any applications were to be withdrawn, although she had notice the scope of the orders sought had been narrowed since receiving the statement.
60. [60]
    The Tribunal then asked for a costs estimate.^[28] TL’s lawyer submitted that prior to December 2020, costs were $18, 470 including GST, and estimated further costs to the end of the hearing at $12,000 including GST, totalling, $30,470. The estimate was based on progress records and on a client agreement. The learned Member asked TCN’s lawyer:

if I’m mindful of making an order for costs, have you got anything to say about whether or not I should make – because I think the QCAT Act urges me to make an amount in the order unless it’s subject to assessment by a costs assessor. I’m hearing that this estimate is based on the client agreement. I have no reason to doubt that’s the case and I have no reason to doubt the assessment… if I make an order for costs, whether it should also result in the costs being assessed or …. an order for costs in the sum of $30,470.^[29]

TCN’s lawyer submitted that an assessment would be preferable. The Tribunal then refers to s 107 of the QCAT Act and costs agreements under the Legal Profession Act (Qld) 2007. ^[30]

61. [61]
    The Tribunal then immediately delivered reasons for decision on the costs application and makes an order that TCN pay costs of TL in the sum of $15,000 within 28 days. TCN personally expresses surprise, saying she was unaware that such an order was a possibility.^[31]

The Tribunal’s reasons for decision

62. [62]
    The Tribunal’s reasons for the order are explained as follows. It heard applications made ‘partly’ under the POA Act and under the GA Act. The main focus was the validity of the EPA made under the POA Act. An application for a confidentiality order and an application for a declaration of capacity at the present time for certain matters were made under the GA Act.^[32] The Tribunal found that, although the focus of the hearing was TAJ’s capacity for making the EPA, much of the costs incurred until the hearing related to various matters. That said, it was acknowledged that there was some indication perhaps as early as October in the previous year that the application and issues for determination would be narrowed, although the applications were not withdrawn until the day of hearing.^[33]
63. [63]
    The Tribunal found the issue of TAJ’s capacity for the EPA on 30 May 2018 was squarely a matter under the POA Act. It considered granting costs under the POA Act is discretionary, but “it is said that unless the Court otherwise orders, …costs should follow the event.”^[34] It finds that the costs associated with the determination should be subject of a costs order in favour of TL, noting that TAJ does not seek costs. However, it finds in relation to the matters before it under the GA Act that there are no exceptional circumstances, which is the threshold for awarding costs under that Act.
64. [64]
    Noting the ‘QCAT Act does recommend or at least encourage’ the fixing of costs,^[35] the learned Member found that the primary application determined was the application about the EPA, and that at least half of the costs incurred, relate to that application. It fixed costs at roughly half the costs based on the estimates given, namely at $15,000.

The grounds of appeal 4 and 5 and the parties’ submissions

65. [65]
    The grounds of appeal as originally set out in the application for leave to appeal or appeal rely upon the applicability of the QCAT Act in governing costs. Ground 4 is to the effect that the Tribunal erred in awarding costs in the absence of a finding that the interests of justice required it to make a costs order pursuant to s 102 of the QCAT Act. Ground 5 alleges that the Tribunal did not consider the matters it was required to consider in exercising its discretion to award costs, and in particular, in making an order under the POA Act, whether it should depart from its earlier decision in RJG.
66. [66]
    In RJG, the Tribunal found that proceedings in QCAT are governed by the QCAT Act, and in effect, it seems either that s 125 of the POA Act was displaced by ss 100 and 102 of the QCAT Act or that making a costs order pursuant to s125 of the POA Act was subject to s 102 of the QCAT Act, such that the Tribunal must be satisfied that an award of costs is in the interests of justice.
67. [67]
    TCN submits that the Tribunal heard no submissions and gave no reasons about the interests of justice, and in making its order without reference to the interests of justice, it did not consider whether it should depart from RJG or give any reasons for departing from it. Further, she submits that in considering the interests of justice, the Tribunal ought to have concluded that no costs order should be made, having regard to the factors set out in s 102(3).
68. [68]
    TL submits that s 125 of the POA Act is a modifying provision in an enabling Act pursuant to ss 6 and 7 of the QCAT Act. Therefore, she submits, to the extent of any inconsistency, the modifying provision prevails; s 7(2) of the QCAT Act. Further, she says there was no reason for the Tribunal to depart from the general position that costs follow the event. She relies upon the Tribunal’s decision in MET^[36] in which a differently constituted Tribunal took an approach not dissimilar to the Tribunal below in this instance in relation to the applicability of s 125 of the POA Act (and s 127 of the GA Act) having regard to the other applications determined by the Tribunal.
69. [69]
    TCN says that MET was later decided than TAJ’s case and suggests some inconsistency with RJG. Further, she refers to WJ^[37]  in which another differently constituted Tribunal there accepts a submission that it would potentially be acting ‘improperly’ by raising a matter of its own volition during a hearing in essence where a party was not put on notice of the potential for a costs order to be made.^[38]
70. [70]
    Also, as referred to earlier, TCN submits that there was no opportunity for considered submissions to be developed and made on TCN’s behalf, noting the unresolved tension between the approaches taken in RJG and MET, in circumstances where the Tribunal itself, rather than TL, raised the possibility of a costs application under s 125 of the POA Act.

Has an error made by the Tribunal been identified?

71. [71]
    Firstly, the POA Act is an enabling Act which confers jurisdiction on the tribunal,^[39] including for making declarations about a person’s capacity for, and deciding the validity of an EPA.^[40] Further, s 125 of the POA Act is a modifying provision which prevails over the provisions of the QCAT Act in respect of costs in proceedings under the POA Act, to the extent of any inconsistency.^[41] It appears that the Tribunal proceeded on this basis, although without articulating the reasons for doing so.
72. [72]
    The promotion of quality and consistency of tribunal decisions is a stated object of the QCAT Act. ^[42] However, the decision in RJG was not binding on the Tribunal, and nor is it directly argued on behalf of TCN to be binding.  In any event, if it was necessary for me to do so, for the reasons already explained, I would be satisfied that RJG was wrongly decided with respect to the costs issue. Having regard to the effect of ss 6 and 7 of the QCAT Act, s 125 of the POA Act is a modifying provision in relation to costs in proceedings under the POA Act, and the construction adopted in RJG is plainly wrong.
73. [73]
    Having said that, as the comments of the Tribunal made below indicate when the issue of costs was raised initially by TL (in foreshadowing a costs application if an adjournment was occasioned by the granting of the notices to produce), costs orders are not common in the guardianship-related jurisdiction. TCN was not on notice of an intention of TL to seek costs before the hearing. When TL made her application following the determination of the substantive applications, she made her application pursuant to the GA Act. Section 127 of the GA Act provides relevantly for parties generally to bear their own costs, but for the tribunal to order the costs of an active party be paid by an applicant ‘in exceptional circumstances, including’ if the application is frivolous or vexatious. Certain provisions of the QCAT Act in relation to costs apply to proceedings under the GA Act, namely s 101, and ss 103 to 109. Specifically, s 102 of the QCAT Act providing that the tribunal may make an order for costs if it considers the interests of justice require it to make the order, does not apply. 
74. [74]
    TL’s application for costs pursuant to the POA Act was prompted by the learned Member. TL’s lawyer was asked whether she wished to ‘say anything about’ the learned Member’s statements concerning s 125 of the POA Act or wanted time to look at it.  By contrast, TCN’s lawyer was not offered the time or further opportunity to consider the application prompted by the Tribunal, she was asked what she wanted to say about the application for costs which had not been raised until moments beforehand.
75. [75]
    The hearing in relation to costs then moved on quickly to TL’s estimates of costs, which were raised in brief oral submissions, and in the absence of any written estimate, and it seems again without notice. Despite the not insignificant quantum of those costs in the circumstances and the imprecision about the manner and basis upon which they were calculated other than under a client agreement, TCN’s solicitor was again asked to comment immediately. Further, the learned Member’s question to her was framed such as to give the clear impression, (it seems, on the basis the learned Member had no reason to doubt the estimate was based on the client agreement), that TCN’s lawyer was to submit only as to whether costs should be assessed or in the total sum estimated of $30, 470 if an order is made.
76. [76]
    Even though TCN’s lawyer did not ask for an adjournment to provide written submissions, I am satisfied that procedural fairness was not provided to TCN in respect of the costs application. It was made on the day of the hearing. The application under s 125 of the POA Act was prompted by the Tribunal itself. Despite indicating a willingness to allow TL time to consider what the learned Member said about s 125, that same allowance was not given to TCN, and then an estimate of the quantum of costs on an unclear basis is proffered and again, TCN not given a proper opportunity to consider it or respond.
77. [77]
    One of the more certain rules of procedural fairness is the hearing rule. In this context, the hearing rule requires a party be given notice of an application to be made against it; adequate notice of the hearing of the application; and a proper opportunity to both prepare for the case it is to meet and to make its case. Costs applications at the conclusion of hearings in courts generally, and in some QCAT areas of jurisdiction, are a common occurrence and parties and their lawyers are expected to be prepared to meet them at the conclusion of hearings.
78. [78]
    However, (as the learned Member’s initial comments indicated when a costs application was foreshadowed by TL), costs applications in the broader guardianship jurisdiction are not routinely made at the end of hearings, and nor are orders for costs commonly made. Further, here, the costs application as made was amended on the basis of the learned Member herself raising s 125 of the POA Act, when the application had been made by TL pursuant to s 127 of the GA Act. (I further observe that the learned Member later decided not to award costs in respect of that part of the proceedings in respect of which costs were determined under s 127 of the GA Act). In all of the circumstances, TCN was denied procedural fairness with respect to the hearing and determination of the costs application pursuant to s 125 of the POA Act. A breach of procedural fairness is an error of law.
79. [79]
    Further, I make the observation that the reasonableness of costs sought ought to be considered before an order is made, but the Tribunal did not consider or refer to that issue, other than to say it had no doubt the estimate was in accordance with the client agreement, which is not the same being satisfied of the reasonableness of the costs claimed. The order made would appear to be in effect an order for indemnity costs in respect of the declaration about TAJ’s capacity for the EPA, made without consideration whether the circumstances warranted granting indemnity costs, based on settled law. 
80. [80]
    Here, the error of law is material: a substantial award of costs was made by the Tribunal against TCN in circumstances that she did not have a proper opportunity to respond to the application made under s 125 of the POA Act.
81. [81]
    For the reasons explained, if it is necessary to do so, I give leave to TCN to amend grounds of appeal 4 and 5 to include the issues ventilated about denial of procedural fairness. I grant leave for the appeal, having regard to the material error made by the Tribunal in denying procedural fairness to TCN in respect of the costs application under the POA Act. Further, I would allow the appeal based on this error of law.

Conclusions and Orders

82. [82]
    I make orders refusing leave to appeal on Grounds 1, 2 and 3, for the reasons earlier set out. explained.
83. [83]
    For the reasons explained, I grant TCN leave to amend grounds of appeal 4 and 5,  grant leave to appeal on those grounds of appeal, and allow the appeal on grounds 4 and 5. In proceeding under s 146 of the QCAT Act, I set aside orders 5 and 6 of the Tribunal dated 26 March 2021 and return the application for costs under s 125 of the POA Act to a differently constituted tribunal to be determined according to law, with such additional evidence and submissions as may be directed by the Tribunal.
84. [84]
    To minimise any further costs to any party, I observe that a hearing on the papers in due course would appear to be appropriate.

Observations

85. [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. [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.