ADU - [2022] QCAT 149

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

ADU [2022] QCAT 149

PARTIES:

In applications about matters concerning ADU

APPLICATION NO/S:

GAA2492-21
GAA2497-21
GAA2498-21

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

26 April 2022

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Kanowski

ORDER:

DTA must pay costs to DTB in the amount of $2,178 by 31 May 2022.

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)

DTA is represented by Mr Jason Terry

DTB is represented by Mr Christopher Barnes of Barnes Law Group

REASONS FOR DECISION

Introduction

Certain people are referred to by pseudonyms in these reasons, for the sake of the privacy of the adult to whom the substantive proceedings related. Accordingly:
(a)the adult whom the substantive applications concerned is referred to as ADU;
(b)the adult’s daughter who lives in Queensland is referred to as DTA; and
(c)the adult’s daughter who lives in New South Wales is referred to as DTB.
On 8 November 2021, at a directions hearing, I dismissed applications brought by DTA in respect of ADU. The dismissals were under section 47 of the QCAT Act. That section permits the tribunal to dismiss applications that are frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process. Mr Barnes then orally applied for costs for DTB under section 47(2)(c) of the QCAT Act.
I directed that DTB and DTA file written submissions on costs, and that the application for costs would then be decided on the papers. Mr Barnes filed submissions on behalf of DTB on 22 November 2021. Submissions in the name of DTA (though presumably prepared by Mr Terry) were filed on 29 November 2021.
Mr Barnes submits that the tribunal should order DTA to pay DTB costs in the amount of $8,140. DTA submits that either costs should not be awarded, or only $350 should be awarded.
I have decided to award costs of $2,178, for the reasons that follow.

Legislative framework

Section 47(2)(c) of the QCAT Act permits the tribunal to make a costs order against the party who brought the proceeding to compensate another party ‘for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding’.
As explained in Seeiseo Pty Ltd v Body Corporate for Taralla Apartments CTS 15627 (No. 2),[1] although it initially appears that a costs order under section 47 of the QCAT Act is available only as an alternative to dismissal, the better interpretation is that it is a power that can be used in addition to dismissal. Further, section 47 permits ‘a costs order to be made without the stricture of the usual rule under s 100, that the parties should bear their own costs, applying’.[2] Nonetheless, the factors set out in section 102(3) of the QCAT Act will ‘usually still be relevant to the exercise of the general discretion under s 47(2)(c)’,[3] or at least they may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 149
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) dealt with applications brought by DTA against ADU, with DTB representing ADU. DTA's applications were dismissed on the basis they were frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. DTB then sought costs from DTA in the amount of $8,140. DTA opposed the application for costs or submitted that, if costs were to be awarded, they should be limited to $350. The tribunal considered the legislative framework and principles that should be applied in determining whether costs should be awarded and in what amount. The tribunal awarded costs of $2,178, explaining that it was reasonable for DTB to seek legal advice and representation but that the amount claimed by DTB was excessive. The tribunal also noted that DTA was not put on early notice that she might be at risk of a costs order because DTB did not seek leave to be represented until shortly before the directions hearing.

The tribunal concluded that DTB's legal representative had acted reasonably in the circumstances, but that the amount claimed was excessive. The tribunal considered the amount of time reasonably necessary for a lawyer to act for DTB in the matter, taking into account the complexity of the applications and the fact that some costs were incurred before DTB sought or was granted leave to be represented. The tribunal estimated that the time reasonably necessary for a lawyer to act for DTB was approximately seven hours, comprising four hours as was spent on 18 March 2021; an hour to review the amended application and other documents; an hour on 8 November 2021; and an hour for the preparation of written submissions on costs. This came to $2,178 when calculated at the hourly rate of $360 plus GST. The tribunal also considered that the amount of reasonable costs should be reduced on account of the late application for leave to be represented, and the absence of correspondence that warned DTA that she risked a costs order in the event that her applications were dismissed.

Orders