FG - [2011] QCAT 178 | CaseChat AU

CITATION:

FG [2011] QCAT 178

PARTIES:

APPLICATION NUMBER:

GAA1489-11

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member
S Gardiner, Member

DELIVERED ON:

3 May 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Hajnal Black is ordered to pay one half of the costs incurred by The Public Trustee of Queensland and of the Adult Guardian in the application for a non-publication order made by Hajnal Black to be agreed and failing agreement as assessed by a costs assessor to be appointed by the Tribunal.

2. The applications by Hajnal Black filed in the Tribunal on 23 December 2010 are stayed in accordance with section 242 of the Guardianship and Administration Act 2000.

CATCHWORDS:

COSTS – NON-PUBLICATION ORDER – where application withdrawn at commencement of hearing – where exceptional circumstances exist

STAY – section 242 of the Guardianship and Administration Act 2000 – where concurrent proceedings in Supreme Court and the tribunal

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Hajnal Black represented by Michael Liddy of Counsel instructed by Robert Bax & Associates
THE PUBLIC TRUSTEE OF QUEENSLAND:	The Public Trustee of Queensland represented by Anthony Collins of Counsel instructed by the Official Solicitor of The Public Trustee of Queensland
THE ADULT GUARDIAN:	The Adult Guardian represented by Tim Carmody Senior Counsel instructed by a senior legal officer from the Office of the Adult Guardian

REASONS FOR DECISION

On 23 December 2010 Hajnal Black lodged an application with the tribunal seeking declarations about the capacity of FG to engage in certain specified actions from 28 July 2009 to 30 October 2009. Mrs Black lodged a further application on that same day seeking certain specified directions from the tribunal to the administrator of FG, authorisation of certain specified conflict transactions and a non-publication order.
On 31 January 2011 the tribunal issued a notice of hearing to the active parties in the applications. The notice informed the active parties that a hearing of the application for a non-publication order would be heard at 10 am on 28 February 2011.
At the commencement of the hearing, counsel for Mrs Black informed the tribunal that his client was no longer seeking a non-publication order and sought leave to withdraw that application. Counsel for The Public Trustee of Queensland and for the Adult Guardian applied at the hearing for an order that Mrs Black pay for the costs of those active parties in relation to the hearing of 28 February 2011.
The tribunal made directions for Mrs Black and the other active parties to file and serve written submissions about the applications for costs. Submissions have been received from Mrs Black, The Public Trustee of Queensland and the Adult Guardian and have been taken into account by the tribunal. The applications for costs are opposed by Mrs Black.
The applications for costs are made under the Guardianship and Administration Act 2000. Under section 127(1) of the Act, each party in a proceeding is…

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

AGLC: FG [2011] QCAT 178
Case: [2011] QCAT 178
Decision Date: 3 May 2011

CaseChat Overview and Summary

The case involves Hajnal Black who applied for a non-publication order in relation to proceedings in the Tribunal and concurrently filed applications in the Supreme Court. The Public Trustee of Queensland and the Adult Guardian opposed the non-publication order. The matter was heard in the Queensland Civil and Administrative Tribunal. The primary legal issues before the Tribunal were whether the application for a non-publication order should be dismissed and if the applications filed by Hajnal Black should be stayed. The Tribunal considered the circumstances under which the non-publication order application was withdrawn and whether exceptional circumstances existed to warrant the payment of costs. Additionally, the Tribunal examined whether there were concurrent proceedings in the Supreme Court and the Tribunal that warranted a stay under section 242 of the Guardianship and Administration Act 2000.

The Tribunal found that Hajnal Black's application for a non-publication order was withdrawn at the commencement of the hearing, but exceptional circumstances justified the order for costs. The Tribunal reasoned that the non-publication order application was withdrawn without prejudice and that the opposition was vigorously contested. Consequently, the Tribunal ordered Hajnal Black to pay one half of the costs incurred by The Public Trustee of Queensland and the Adult Guardian. Regarding the stay, the Tribunal concluded that concurrent proceedings were occurring in both the Supreme Court and the Tribunal. Under section 242 of the Guardianship and Administration Act 2000, the Tribunal decided that the applications filed by Hajnal Black should be stayed until the Supreme Court proceedings were resolved.

The final orders of the Tribunal were that Hajnal Black must pay one half of the costs incurred by The Public Trustee of Queensland and the Adult Guardian in relation to the non-publication order application. Additionally, the applications filed by Hajnal Black in the Tribunal on 23 December 2010 were stayed in accordance with section 242 of the Guardianship and Administration Act 2000.

Orders

Orders of the court

2. The applications by Hajnal Black filed in the Tribunal on 23 December 2010 are stayed in accordance with section 242 of the Guardianship and Administration Act 2000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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