MJ v MET[2022] QCATA 180

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   The matters for decision are:

   1. (a)
      in APL220-21, an appeal against a costs order made by the tribunal; and
   2. (b)
      in APL338-20 and APL220-21, whether a party should be ordered to pay costs in appeal proceedings.
2. [2]
   The same parties are involved in both matters. They include the following, who will be referred to by pseudonyms to protect the privacy of the ‘adult’^[1] who has been the subject of the proceedings:

   1. (a)
      the adult is an elderly woman who will be referred to as MET;
   2. (b)
      one of MET’s sons, who will be referred to as MK; and
   3. (c)
      one of MET’s grandsons, who will be referred to as MJ.
3. [3]
   MET had appointed MK and other sons as her attorneys under an enduring power of attorney. An enduring power of attorney is a type of ‘enduring document’, as that term is defined in the Powers of Attorney Act 1998 (Qld) (‘Powers of Attorney Act’) at section 28. Reference will also be made to the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

Appeal in APL220-21

4. [4]
   MJ seeks leave to appeal on a number of grounds, as will be discussed in more detail later. However, the main issue is which costs provision applies in a proceeding where the tribunal has been asked to exercise a power given to it by the Powers of Attorney Act: is it the costs provision in the Powers of Attorney Act, or the costs provision in the Guardianship and Administration Act?
5. [5]
   The question has significance because the costs provision in each Act are to different effect. In the Powers of Attorney Act, section 125 says:

125 Costs

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

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

6. [6]
   Section 125 refers to the court – meaning the Supreme Court^[2] – but in the present context this is to be read as a reference to the tribunal, because of section 109A of the Powers of Attorney Act:

109A Queensland Civil and Administrative Tribunal also has jurisdiction and powers about enduring documents

1. (1)
   The tribunal is given the same jurisdiction and powers for enduring documents as the Supreme Court.

2. (2)
   For subsection (1), this Act applies, with necessary changes, as if references to the Supreme Court were references to the tribunal.

7. [7]
   Accordingly, in discussing various provisions in the Powers of Attorney Act, I will use the term ‘tribunal’ even though the provisions use the term ‘court’.
8. [8]
   In the Guardianship and Administration Act, section 127 says:

127 Costs

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.

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.

Proceedings at first instance

9. [9]
   There were four proceedings before the tribunal at first instance. All were brought by MJ. They were decided on 9 September 2020. Costs applications against MJ by MET and MK were later decided, on 30 July 2021. The member’s reasons for the costs decision are reported as MET.^[3] The four applications decided on 9 September 2020 were described in MET as:

   1. (a)
      an application (assigned the number GAA6922-20 by the tribunal) for directions to have MET’s cognition assessed;
   2. (b)
      an application (GAA4527-20) for a declaration about MET’s capacity – ‘MJ alleging that she did not have capacity’;
   3. (c)
      an application (GAA4529-20) for an order about an enduring power of attorney – ‘MJ alleging the document was not valid and seeking to have MK removed as Attorney’; and
   4. (d)
      an application (GAA6924-20) for a non-publication order.^[4]
10. [10]
    The member deciding the costs applications ordered MJ to pay costs: $3,017 to MET and $7,284 to MK. The member considered that the costs provision in the Powers of Attorney Act, section 125, operated in respect of three of the applications, and that the costs provision in the Guardianship and Administration Act, section 127, operated in respect of the other application.
11. [11]
    In APL220-21, MJ seeks leave to appeal against the costs orders, arguing that the tribunal should have used the Guardianship and Administration Act costs provision for all four applications.

Sources of statutory power

12. [12]
    The statutory source of the tribunal’s power to make orders in respect of each of the original four application requires discussion, particularly concerning whether the source is under the Powers of Attorney Act or the Guardianship and Administration Act. I will start with the more straightforward instances.

GAA4529-20: application for an order about an enduring power of attorney

13. [13]
    The statutory sources of the tribunal’s powers to make orders are in the Powers of Attorney Act. Under section 113(2), the tribunal may declare an enduring document invalid. The tribunal may also, if it has declared the document invalid, appoint one or more attorneys for the principal: section 113(3). In the case of a valid enduring document, the tribunal may under section 116(a) remove an attorney.

GAA4527-20: application for a declaration about capacity

14. [14]
    Both Acts give the tribunal powers to make declarations about capacity. Section 111 of the Powers of Attorney Act says that the tribunal ‘may make a declaration about a person’s capacity’. Section 146(1) of the Guardianship and Administration Act says the tribunal ‘may make a declaration about the capacity of an adult, guardian, administrator or attorney for a matter’. As the main proceedings sought changes to MET’s enduring document under sections 113 or 116 of the Powers of Attorney Act, I consider that the more relevant provision about capacity is the one in the Powers of Attorney Act. Accordingly, I consider that the statutory source for any orders in GAA4527-20 was section 111 of the Powers of Attorney Act.

GAA6922-20: application for directions

15. [15]
    The direction sought was for MET to undergo a capacity assessment by a geriatric psychiatrist.
16. [16]
    Section 114 of the Guardianship and Administration Act permits the tribunal to direct a person to undergo examination by a doctor or psychologist. There is no equivalent provision in the Powers of Attorney Act. However, the member at first instance said that she took the application to be under section 111 of the Powers of Attorney Act.  That section says merely that ‘the [tribunal] may make a declaration about a person’s capacity’. Presumably the tribunal may have regarded section 111 as permitting the making of a direction as an ancillary step. However, I consider that the statutory source of the power to make such a direction is section 114 of the Guardianship and Administration Act, as it provides specifically for such a direction.

GAA6924-20 application for a non-publication order

17. [17]
    There is no provision in the Powers of Attorney Act for the tribunal to make a non-publication order. There is such a provision in section 108 of the Guardianship and Administration Act. There is also such a provision in section 66 of the QCAT Act, but its operation is excluded by section 101(1)(a) of the Guardianship and Administration Act if that Act applies. For reasons to be explained, I consider that the Guardianship and Administration Act does apply. Accordingly, the statutory source for any orders in GAA6924-20 was section 108 of the Guardianship and Administration Act.

Characterisation of applications by member at first instance

18. [18]
    The member at first instance characterised applications GAA4527-20, GAA4529-20 and GAA6922-20 as being under the Powers of Attorney Act, and application GAA6924-20 as being under the Guardianship and Administration Act. To the extent that this characterisation identifies the Acts which contain the powers for the tribunal to make orders, I agree, except in respect of GAA6922-20 as explained above.
19. [19]
    The member at first instance, having characterised three of the applications as being under the Powers of Attorney Act, considered that the costs provision in that Act applied in respect of those three applications. The member having characterised the other application as being under the Guardianship and Administration Act, considered that the costs provision in that Act applied to that application. The member assessed costs on that basis.

The appeal

20. [20]
    The member’s use of the costs provision in the Powers of Attorney Act is challenged by MJ in the appeal. He argues that the costs provision in the Guardianship and Administration Act should have been applied to all four applications. I agree, for the reasons that follow.
21. [21]
    It is relevant to discuss the legislative history. The Powers of Attorney Act was enacted in 1998. It gave powers to the Supreme Court to make orders about enduring documents. A tribunal with jurisdiction in such matters did not exist until the Guardianship and Administration Act was enacted in 2000. That Act created the Guardianship and Administration Tribunal. At the same time, changes were made to the Powers of Attorney Act.
22. [22]
    The Powers of Attorney Act and the Guardianship and Administration Act must be read in conjunction. This is expressly stated in section 6A(1) of the Powers of Attorney Act and section 8(1) of the Guardianship and Administration Act. Further, if there is an inconsistency between the two Acts, the Guardianship and Administration Act prevails: section 6A(4) of the Powers of Attorney Act and section 8(2) of the Guardianship and Administration Act.
23. [23]
    When the Guardianship and Administration Act was enacted, section 109A was inserted into the Powers of Attorney Act. That section, which gave the tribunal jurisdiction along with the court for enduring documents, has been quoted earlier, in its present form. In its original form, it referred to the Guardianship and Administration Tribunal rather than to QCAT. QCAT was created later, in 2009.
24. [24]
    The Guardianship and Administration Act acknowledged the jurisdiction given to the tribunal in the Powers of Attorney Act: section 84(2) of the Guardianship and Administration Act said that ‘the tribunal has concurrent jurisdiction with the court for enduring documents and attorneys under enduring documents’.^[5]
25. [25]
    Significantly, section 82(1)^[6] of the Guardianship and Administration Act described the tribunal’s functions in the following terms:

Functions

82(1)  The tribunal has the functions given to it by this Act, including the following functions—

1. (a)
   making declarations about the capacity of an adult, guardian, administrator or attorney for a matter;

2. (b)
   considering applications for appointment of guardians and administrators;

3. (c)
   appointing guardians and administrators if necessary and reviewing the appointments;

4. (d)
   making declarations, orders or recommendations, or giving directions or advice, in relation to the following—

1. (i)
   guardians and administrators;

2. (ii)
   enduring documents and attorneys;

3. (iii)
   related matters …

26. [26]
    The references to attorneys and enduring documents are relevant to the present discussion. In relation to paragraph (d)(ii), I note that the Guardianship and Administration Act itself gives the tribunal power to make an order concerning an attorney’s powers in one situation: the tribunal can authorise an attorney to exercise power, to an extent, even if the tribunal has given power to a guardian or administrator: section 22(2). However, the bulk of the substantive powers which the tribunal might exercise in relation to enduring documents and attorneys have remained in the Powers of Attorney Act. These include powers discussed above, such as declaring an enduring document invalid and changing an enduring document. Other powers include making a declaration about the commencement of power under an enduring document,^[7] and giving advice, directions or recommendations about the exercise of an attorney’s powers.^[8]
27. [27]
    There have always been some procedural provisions for the court (and later also the tribunal) in the Powers of Attorney Act. These include provisions about who can apply for an order and who can participate in a proceeding;^[9] the ability for the court/tribunal to proceed without all relevant material in some circumstances;^[10] the power to dismiss frivolous applications;^[11] and the costs power.^[12]
28. [28]
    Significant additional procedural provisions for the tribunal were contained in the Guardianship and Administration Act, in Chapter 7, headed ‘Tribunal Proceedings’. These included:

    1. (a)
       a requirement in section 107, headed ‘Informal’, for proceedings to be conducted simply and quickly;^[13]
    2. (b)
       that the tribunal was not bound by the rules of evidence and could inform itself in a way it considered appropriate;^[14]
    3. (c)
       that, generally, tribunal proceedings were to be in public;^[15]
    4. (d)
       that the tribunal had power to make a confidentiality order;^[16]
    5. (e)
       that the tribunal could direct a person to undergo an examination by a doctor or psychologist;^[17]
    6. (f)
       that the tribunal was to ensure, as far as practicable, that it had all relevant information;^[18]
    7. (g)
       that the tribunal could appoint a representative for the adult;^[19] and
    8. (h)
       defining who are ‘active parties’,^[20] and that active parties have the right to inspect documents.^[21]
29. [29]
    In my view, Parliament must have intended such procedural provisions in the Guardianship and Administration Act to apply when the tribunal was conducting a proceeding relating to enduring documents or attorneys, as much as in other proceedings. As has been mentioned, Parliament had acknowledged the tribunal’s functions in relation to enduring documents and attorneys in the Guardianship and Administration Act, notwithstanding that the bulk of the substantive powers remained in the Powers of Attorney Act. Further, it must have been intended by Parliament that the tribunal could draw upon such additional procedural provisions in such a proceeding. The procedural framework available to the court in the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) has never been available to the tribunal: those rules apply only to specified courts.^[22] So, for example, if the adult / principal in a proceeding in the court is under a legal incapacity, a litigation guardian could step in.^[23] In a tribunal proceeding, on the other hand, the relevant mechanism would be the appointment of a representative under section 125 of the Guardianship and Administration Act. 
30. [30]
    The procedural provisions in Chapter 7 of the Guardianship and Administration Act include the costs provision in section 127. Section 127 uses the expression ‘a proceeding’. A proceeding before the tribunal relating to an enduring document or an attorney is, in view of the statutory framework outlined above, a proceeding within the scope of section 127. That is so even though the proceeding can also be described as being under the Powers of Attorney Act in that the source of the statutory power to make a particular order is found in that Act. I consider that it must have been Parliament’s intention that section 127 would apply to a proceeding in the tribunal about enduring documents and attorneys, as well as in other proceedings, along with the other procedural provisions in Chapter 7.
31. [31]
    Section 127 of the Guardianship and Administration Act and section 125 of the Powers of Attorney Act are fundamentally inconsistent. They have quite different starting points: parties to bear their own costs, in the former, and costs following the event, in the latter. Further, the latter contemplates a costs order against any party, but the former allows a costs order only against the applicant.^[24] Section 127(3) of the Guardianship and Administration Act also brings into play some costs powers in the QCAT Act, including the power to award costs against a representative.^[25] As has been mentioned, in the event of inconsistency, the Guardianship and Administration Act prevails. Accordingly, I consider that section 127, rather than section 125, will apply in a proceeding before the tribunal about an enduring document or an attorney.
32. [32]
    The result of this interpretation is that when the court is conducting a proceeding about an enduring document or an attorney, the costs provision in section 125 will apply. When the tribunal is conducting such a proceeding, however, the costs provision in section 127 will apply. This is not a surprising result. Costs applications lengthen and complicate proceedings. Parliament expects the tribunal to be relatively informal, and quicker and simpler for parties than the court.
33. [33]
    It is also broadly consistent with differing provisions about representation. A party in a Supreme Court proceeding has the right to be legally represented: section 90(1)(a) of the Supreme Court of Queensland Act 1991 (Qld). In the tribunal, there is no automatic right to representation. The tribunal must grant leave before a party can be represented by a lawyer: section 124(1) of the Guardianship and Administration Act.
34. [34]
    Some further legislative complexity was introduced in 2009, when the QCAT Act created QCAT. The Powers of Attorney Act and the Guardianship and Administration Act were also amended. The Guardianship and Administration Tribunal was abolished, and the relevant tribunal became QCAT. Various procedural provisions in the QCAT Act apply to all proceedings in the tribunal, but to the extent of inconsistency, provisions in enabling Acts such as the Powers of Attorney Act and the Guardianship and Administration Act, prevail.^[26] Some procedural provisions were removed from the Guardianship and Administration Act, as similar provisions of general application in QCAT proceedings were contained in the QCAT Act. However, many procedural provisions specific to proceedings about guardians, administrators, enduring documents and attorneys have remained in the Guardianship and Administration Act. These include most of those described in paragraph 28 above.
35. [35]
    The rationale for concluding that section 127 of the Guardianship and Administration Act applies in deciding a costs application in a tribunal proceeding, rather than section 125 of the Powers of Attorney Act, remains, notwithstanding the alterations in the statutory framework occasioned by the creation of QCAT.
36. [36]
    The QCAT Act contains its own set of costs provisions. However, the Guardianship and Administration Act in section 101(d) excludes in most instances the operation of the main costs provisions in the QCAT Act, namely sections 100 and 102. Some costs provisions in the QCAT Act, such as the one prohibiting a costs order against a child, are operative in a proceeding to which the Guardianship and Administration Act applies.^[27] The overall result is that section 127 of the Guardianship and Administration Act continues to be the crucial costs provision for a proceeding relating to an enduring document or an attorney.
37. [37]
    For the above reasons, I consider that section 127 of the Guardianship and Administration Act is the costs provision that should have been applied in respect of all four applications brought by MJ.
38. [38]
    I note that this approach differs from approaches taken by the tribunal in RJG^[28] and TCN v Public Guardian & Anor.^[29] However, in neither of those cases were the arguments considered in the present case, concerning inconsistency between the Powers of Attorney Act and the Guardianship and Administration Act, ventilated.
39. [39]
    In RJG, the tribunal considered a costs application by an attorney after another person had unsuccessfully sought a change to the terms of the enduring document. The attorney argued that costs should follow the event, under section 125 of the Powers of Attorney Act. The member, however, considered that the costs provisions in the QCAT Act prevailed, as that was a later Act. The member did not mention section 127 of the Guardianship and Administration Act.
40. [40]
    The analysis in RJG concerning the interplay between costs provisions in the Powers of Attorney Act and the QCAT Act was rejected by the appeal tribunal in TCN. That case involved an appeal against a costs order, where the tribunal at first instance had taken the same approach as that taken by the member below in MET’s case, namely that section 125 of the Powers of Attorney Act applied in respect of certain proceedings before the tribunal and section 127 of the Guardianship and Administration Act applied in respect of other proceedings. That approach was not challenged in the appeal, or questioned by the appeal tribunal. Rather, the focus was on whether the costs proceeding had been procedurally fair. The appeal tribunal remitted the application for costs ‘pursuant to s 125 of the Powers of Attorney Act 1998 (Qld)’^[30] for determination. In my respectful view, the applicable costs provision was, rather, section 127 of the Guardianship and Administration Act.
41. [41]
    In the present case, the member at first instance erred in law in applying section 125 of the Powers of Attorney Act to three of the applications.
42. [42]
    An appeal against a costs order can proceed only with leave of the appeal tribunal.^[31] Leave for an appeal is usually granted only ‘where an appeal is necessary to correct a substantial injustice … and there is a reasonable argument that there is an error to be corrected’.^[32] I am satisfied that MJ has suffered a substantial injustice, in that the wrong test for costs has been applied. Application of the correct test may have produced a different result. Accordingly, I grant leave for grounds 3 and 4 of MJ’s appeal application which are, respectively, that ‘the applications were not solely made under the Powers of Attorney Act’, and ‘section 6A of the Powers of Attorney Act has not been taken into account when awarding costs’.
43. [43]
    The other three grounds of appeal, numbered 1, 2 and 5, are expressed as follows:

Submissions opposing the granting of leave to appeal^[33] were filed more than two months prior to hearing. No response was provided. This lack of response (and the consequences flowing from it) are a denial of natural justice required per s 28 of the QCAT Act.

The consequences to those unrepresented flowing from the decision granting leave to be represented mean that this was not in accordance with the purpose or object of the Act as required by s 14A of the Acts Interpretation Act.

The reasons for awarding costs are not reasonable.

44. [44]
    These grounds are academic at this point, because I will return the costs applications to the tribunal for reconsideration. The costs discretion will be re-exercised. At that time, it will be for the member to exercise the discretion reasonably, taking into account the factors that the member is satisfied are relevant. Accordingly, there is no need to grant leave for grounds 1, 2 and 5. Leave is refused.
45. [45]
    The appeal is allowed on grounds 3 and 4. I consider that the member at first instance made an error of law by applying section 125 of the Powers of Attorney Act. I set aside the member’s decision, under section 146 of the QCAT Act.
46. [46]
    In his appeal application, MJ said the order he seeks is that each of the parties bear their own costs in accordance with section 127 of the Guardianship and Administration Act. That is not an order I can make in the appeal. I cannot substitute my own decision, because that would involve a fresh exercise of discretion.^[34] I must return the matter to the tribunal for reconsideration: section 146(c) of the QCAT Act. The reconsideration should be done by a member other than the one who decided the costs applications at first instance. This is because that member, quite properly, formed and expressed views about the reasonableness or otherwise of MJ’s applications.
47. [47]
    The tribunal can make ancillary orders: section 114(b) of the QCAT Act. I use this power to order that MET and MK each repay to MJ the amount of costs that he has paid under the costs orders which I have set aside.

Costs applications in APL338-20 and APL220-21

48. [48]
    I am required to decide, at first instance as the appeal tribunal, costs applications by MET and MK in these two appeal proceedings. They seeks costs orders against MJ in APL338-20 and in responding to a stay application in APL220-21.
49. [49]
    The relevant history is that on 9 September 2020 a tribunal member decided the four applications made by MJ which have been discussed above. MJ failed to obtain the orders he had sought. The tribunal dismissed the applications for directions and for a non-publication order; declared that MET had capacity for all personal and financial matters; and noted the existence of MET’s enduring power of attorney (which, effectively, recognised it as valid).
50. [50]
    On 6 November 2020, MJ filed an appeal application in relation to the decisions of 9 September 2020. This was some 16 days outside the appeal period, and so MJ sought an extension of time. The appeal tribunal refused the extension of time application on 16 April 2021. It published reasons: JM v The Public Guardian and Ors.^[35]
51. [51]
    As has been mentioned, the costs decision in the original proceedings, which is the subject of the appeal in APL220-21, was made on 30 July 2021. The result of that decision was that MJ was required to pay costs totalling $10,301 within 14 days. MJ then filed an appeal application and a stay application, in which he sought a stay of the costs order pending the determination of the appeal. The appeal tribunal then made directions for MJ to file and serve submissions in support of the stay application, or to ‘advise that no further material will be filed’; for the respondents to then file and serve submissions in response; and for the stay application to then be decided on the papers.
52. [52]
    MJ did not file submissions on the stay application. Nor did he advise the tribunal, by the required date, that no further material would be filed. However, it appears that he advised MK that he was not filing any further material, because submissions by MK referred to a letter by MJ to that effect. MJ may also have advised MET, at least, because he subsequently provided a copy of such a letter to MET. In any event, submissions filed by MET mentioned that MET understood that MJ had not filed any submissions in support of the stay application. The submissions in response to the stay application by MK and MET were prepared by solicitors. As one would expect, they made reference to various case authorities. MJ then filed an application for leave to withdraw the stay application. The reason given for seeking leave to withdraw was ‘the application does not meet the requirements to be granted as set down by case law’.^[36]  The appeal tribunal then gave MJ leave to withdraw the stay application.

What costs are sought, and on what basis?

53. [53]
    MET seeks an order that MJ pay her costs in APL338-20, and her costs in relation to the stay application in APL220-21. She quantifies the costs at $550 and $1,650 respectively. MET submits that costs should follow the event under section 125 of the Powers of Attorney Act. Further, costs should be awarded in the interests of justice under section 102 of the QCAT Act.
54. [54]
    In respect of APL338-20, MET submits that the appeal tribunal found that MJ did not provide a satisfactory explanation for the delay in filing his appeal application, and that the proposed grounds of appeal had no apparent merit. In APL220-21, MET submits, MJ seeks to re-agitate matters raised in APL338-20. Further, MJ did not give notice to other parties that he intended to abandon his application for a stay of the costs decision, and MET incurred costs in complying with the direction to file submissions on the stay application.
55. [55]
    MET also submits:

From the outset, the applicant has continued with proceedings without supporting evidence, has failed to comply with directions of the tribunal and has failed to demonstrate any merit to the various applications and appeal proceedings filed with the tribunal.

…

It is submitted that the applicant’s application for leave to appeal and application to stay a decision in relation to the Costs Decision can properly be described as frivolous and vexatious and without merit.

…

[MET] is a pensioner who has already been put to not insignificant expense to obtain legal representation in response to the multiple unsuccessful proceedings instigated by the applicant.^[37]

56. [56]
    MK also seeks a costs award for APL338-20 and for responding to the stay application in APL220-21, with the latter costs quantified at $1,500. MK adopts MET’s submissions.

MJ’s position

57. [57]
    In contrast, MJ submits that section 127 of the Guardianship and Administration Act operates, and that each party should bear its own costs as there are no exceptional circumstances.
58. [58]
    The failure to comply with directions alleged by MET appears to relate to failure by MJ to serve copies of documents upon other parties. MJ denies that he failed to do this.

What costs provisions apply in the appeal proceedings?

59. [59]
    I agree with MJ that the operative cost provision is section 127 of the Guardianship and Administration Act. As explained earlier, that section applies in a tribunal proceeding concerning an enduring document or an attorney, rather than section 125 of the Powers of Attorney Act.
60. [60]
    Most of the provisions relating to appeals are contained in the QCAT Act. Section 142(1) says that ‘a party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding …’. Subsequent sections deal with when leave to appeal is required, stays, final orders and so on. This leads to the question of whether the costs provisions in the QCAT Act apply to an appeal.
61. [61]
    It is important to note though, that Chapter 7 – headed ‘Tribunal proceedings’ – of the Guardianship and Administration Act includes Part 8, which is headed ‘Appeal’. Section 163(1) says ‘an eligible person may appeal against a tribunal decision … in a proceeding as provided under the QCAT Act …’. The wording here is similar to section 115(1) of the same Act, which deals with applications at first instance:

An application may be made, as provided under the QCAT Act, to the tribunal for a declaration, order, direction, recommendation or advice in relation to an adult about something in, or related to, this Act or the Powers of Attorney Act 1998.

62. [62]
    Both section 163(1) of the Guardianship and Administration Act and section 142(1) of the QCAT Act confer a right of appeal. To the extent that this gives rise to an inconsistency, the former as a provision in an enabling Act prevails: section 7(2) of the QCAT Act. In any event, section 163(1) is undoubtedly engaged when a party to a proceeding in which the Guardianship and Administration Act has been operative elects to appeal. It follows that in such a case, the costs provision in section 127 of the Guardianship and Administration Act, which is also in Chapter 7 of that Act, will also be engaged in the appeal. Further, section 102 of the QCAT Act, which permits an award of costs in the interests of justice, does not operate: section 101(1)(d) of the Guardianship and Administration Act.
63. [63]
    The same conclusion was reached by the appeal tribunal in Mulcahy v Mulcahy.^[38] It should be acknowledged that the proceedings at first instance in that case had been for the appointment of a guardian and an administrator, rather than proceedings in relation to an enduring document or an attorney. However, as has been explained earlier in these reasons, a proceeding at first instance about an enduring document or an attorney engages the procedural provisions in the Guardianship and Administration Act. There is no reason why the costs provision in the Guardianship and Administration Act would not apply to an appeal about an enduring document or an attorney, just as much as to an appeal about the appointment of a guardian or an administrator.
64. [64]
    It is also relevant to note that the Powers of Attorney Act does not contain a provision about appeals. If a proceeding about an enduring document or an attorney were conducted in the Supreme Court, the right of appeal would be found in section 62 of the Supreme Court of Queensland Act 1991 (Qld). For a tribunal proceeding on the same type of matter, on the other hand, it makes sense that the appeal provision would be found in the Guardianship and Administration Act, which contains so many other procedural provisions which are engaged in a tribunal proceeding.

Should costs be awarded in APL338-20?

65. [65]
    As section 127 of the Guardianship and Administration Act operates, the starting point is that each party should bear its own costs. However, the tribunal may award costs if there are exceptional circumstances, such as if the appeal application was frivolous or vexatious.
66. [66]
    MET and MK point to the endeavour by MJ to press his position, even after failure at first instance, as an indication that the proceeding was frivolous and vexatious. It is true that Senior Member Howard, sitting as the appeal tribunal, refused to grant an extension of time for an appeal. However, it is apparent from the reasons given by the senior member that her decision was reached only after a careful weighing up of numerous factors. These included the public interest, the health-related reasons advanced by MJ for his delay in filing, and the burden upon MET as a frail 94 year-old person in responding to further proceedings. Senior Member Howard commented that MJ’s ‘proposed grounds of appeal in respect of the threshold issue of capacity have no apparent merit’,^[39] but, less critically, in respect of the proposed appeal as a whole, she said that ‘on a preliminary view, there appears to be limited merit in the proposed appeal’.^[40]  Senior Member Howard concluded that she was not satisfied that it was in the ‘interests of justice’^[41] for an extension of time to be granted. 
67. [67]
    Senior Member Howard did not suggest that the proposed appeal was frivolous or vexatious. I do not consider that it was. Nor do I consider that the circumstances were otherwise exceptional for the purposes of section 127 of the Guardianship and Administration Act. MJ appears to have had genuine concerns about whether MET had decision-making capacity, and that MK may be taking financial advantage of MET. The enduring power of attorney granted the attorneys immediate financial powers, so the exercise of those powers was not contingent on MET losing capacity.
68. [68]
    In 2019, health professionals had described MET as having cognitive impairment relating to age or dementia. One, a neurologist who was asked to comment specifically on capacity, considered that MET could make complex decisions, including complex financial decisions with the assistance of her sons.
69. [69]
    MJ asked the office of the Public Guardian to investigate, but it ultimately declined because it was not satisfied that MET’s capacity was impaired. However, in an email to one of the attorneys in November 2019, a senior investigations officer suggested that the attorneys should give consideration to a QCAT application in view of the breakdown in relations between attorneys. I note that the attorneys were required to make decisions jointly.
70. [70]
    MJ started the QCAT proceedings in early 2020, and later sought to appeal the substantive decisions in APL338-20. In the proceedings he sought, amongst other things, a direction that MET undergo assessment by a geriatric psychiatrist. MJ argued that such a specialist would be the most appropriate to assess capacity.
71. [71]
    On the background I have outlined – involving declining cognition,  and disagreement between attorneys appointed jointly with immediate financial powers – it would be wrong to describe the proceedings as frivolous, vexatious, baseless or otherwise improper, notwithstanding that the applications were ultimately unsuccessful.
72. [72]
    In relation to alleged failures by MJ to comply with directions, I note that he disputes this. In any event, it appears that the other parties obtained copies of the relevant documents, perhaps from the tribunal. It is not apparent that any failure by MJ significantly prejudiced MET or MK.
73. [73]
    Further, although not of critical importance, it is relevant to note that neither MET nor MK sought or obtained leave to be legally represented in either appeal proceeding, unlike in the first instance proceedings where leave was sought and granted. They chose to engage lawyers to prepare written submissions in the appeal proceedings on their behalf as they were entitled to do, notwithstanding the absence of leave for representation. However, in the absence of exceptional circumstances, that choice is one for which they must bear the cost. That is not to say that there would automatically have been exceptional circumstances on account of leave having been granted, had that been the case.
74. [74]
    The applications for costs in APL338-20 is refused. 

Should costs be awarded in respect of the stay application in APL220-21?

75. [75]
    The stay application was not frivolous, vexatious or otherwise improper, in my view. MJ had been ordered to pay considerable costs in a short time, and his appeal against the costs decision has ultimately been found to have merit.
76. [76]
    It is true that MJ did re-agitate arguments in APL220-21 that he had run in APL338-20, relating to the granting of leave for representation. That was misconceived. It is not apparent why MJ regarded the point as relevant in an appeal about the costs decision, but it is not uncommon for self-represented litigants to regard irrelevant matters as relevant. It was easily identifiable as irrelevant, such that it did not warrant any detailed response on the merits.
77. [77]
    The argument made by MET and MK that MJ caused them legal expense by not notifying them that he would be seeking leave to withdraw is misplaced. It was the submissions made by the lawyers that persuaded MJ that he did not have strong grounds for a stay.
78. [78]
    Overall, there was nothing remarkable in MJ making, and then seeking leave to withdraw, a stay application. I do not consider that there are exceptional circumstances. Accordingly, the default position in section 127 of the Guardianship and Administration Act applies. Each party is to bear their own costs. The applications for costs in relation to the stay application in APL220-21 are refused.

Conclusion

79. [79]
    For the above reasons, MJ has demonstrated error in the costs decision at first instance, and so the costs applications in those proceedings must be reconsidered. The costs applications in the appeal proceedings are refused.