Guardianship and Administration Tribunal v. Perpetual Trustees Qld Ltd

[2008] QSC 104

SUPREME COURT OF QUEENSLAND

CITATION:

Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 104

PARTIES:

GUARDIANSHIP AND ADMINISTRATION TRIBUNAL
(applicant)
v
PERPETUAL TRUSTEES QUEENSLAND LIMITED
(first respondent)
LISE THOMPSON
(second respondent)
THE PUBLIC TRUSTEE OF QUEENSLAND
(third respondent)
THE PUBLIC ADVOCATE
(fourth respondent)

FILE NO:

BS6519 of 2007

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Guardianship and Administration Tribunal

DELIVERED ON:

29 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Mullins J

ORDER:

1.  The first respondent must pay the second respondent’s costs of the application to be assessed.
2.  That otherwise there is no order as to the costs of the application. 
3. The application by each of the first and third respondents for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 is refused.

CATCHWORDS:

PROCEDURE – COSTS – COSTS FOLLOW THE EVENT – DEPARTING FROM THE GENERAL RULE – NATURE OF PROCEEDINGS – where questions of law referred on application to Supreme Court by Guardianship and Administration Tribunal – where questions of law arose in the administration of a fund of an adult with impaired capacity - where respondents had mixed success on the application to court – where administrator ordered to pay the costs of the separate representatives of the adult  

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – s 15 (1) Appeal Costs Fund Act 1973 (Q) – jurisdiction of court to issue indemnity certificate – where Tribunal referred questions of law to court without deciding the questions of law

Appeal Costs Fund Act 1973, s 4, s 15
Guardianship and Administration Act 2000, s 31, s 105A,
s 119, s 125, s 127
Supreme Court Act 1995, s 221

Guardianship and Administration Tribunal v The Public Trustee of Queensland & Ors [2005] QSC 126, considered
Land and Resources Tribunal v Schmidt [2006] 1 Qd R 161, followed
Mason v Mason (No 2) [1997] 1 VR 627, considered

COUNSEL:

GI Thomson for the first respondent
K Williams for the second respondent
DB Fraser QC for the third respondent
J Brasch for the fourth respondent

SOLICITORS:

McInnes Wilson Lawyers for the first respondent
Quinn & Scattini for the second respondent
Official Solicitor to the Public Trustee of Queensland for the third respondent
The Public Advocate for the fourth respondent

1. MULLINS J:  When I published my decision in Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 49 (the reasons), I adjourned the question of costs to a date to be fixed and gave directions for the delivery by each of the respondents of written submissions. Each respondent delivered written submissions and, in addition, Perpetual delivered submissions in reply to those delivered by the other respondents.

The respondents’ submissions

1. Perpetual submits that it is appropriate that there be no order as to costs and that it should have an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (ACFA).  Perpetual relies on the affidavit of its solicitor Ms CA Brewer filed on 31 March 2008.  Perpetual expressly acknowledges in its written submissions on costs that it does not seek an order that its costs be reimbursed out of Ms Thompson’s fund.

1. The Public Trustee submits that Perpetual should be ordered to pay the costs of the Public Trustee or, alternatively, that an order be made in favour of the Public Trustee under the ACFA. 

1. It is submitted on behalf of Ms Thompson that Perpetual should be ordered to pay her costs of the application or, alternatively, that she be granted an indemnity certificate pursuant to the ACFA.

1. The Public Advocate seeks an order that Perpetual pay the Public Advocate’s costs of the application.

Referral of questions of law by the Tribunal

1. I referred briefly at paragraphs [1] and [18] to [20] of the reasons to the nature of the review under s 31 of the Guardianship and Administration Act 2000 (GAA) by the Tribunal of the appointment of Perpetual as administrator. The Tribunal published reasons (the Tribunal’s reasons) for its decision made on 17 July 2007 to refer the five questions of law to the court for opinion pursuant to s 105A of the GAA. 

1. The primary issue that was an impediment to the completion by the Tribunal of its review of the appointment of Perpetual was the contention of Perpetual as to the nature of its appointment under the order of the court made on 5 December 2001 in respect of Ms Thompson (the order).  Other questions of law had also arisen in the course of the review.  The referral of the questions of law by the Tribunal on 17 July 2007 was the result of the Tribunal’s conclusion that it was appropriate to obtain the opinion of the court on the primary issue and the associated questions of law that had arisen during the review:  paragraph [47] of the Tribunal’s reasons.  The Tribunal’s reasons show that the Tribunal did not embark on the determination of the nature of the appointment of Perpetual under the order or the other questions of law that arose in the course of the review. 

1. The respondents were parties before the Tribunal on the review and made submissions about the appropriate method for determination of the questions of law that had arisen.  The Public Trustee is an active party for a proceeding under the GAA by reason of s 119 of the GAA.  The adversarial role undertaken by the Public Trustee in the Tribunal in controverting the position taken by Perpetual on each of the questions of law is shown by the submissions of the Public Trustee made to the Tribunal dated 13 February 2007. 

1. Consistent with the function given to the Public Advocate under chapter 9 of the GAA, the Public Advocate had been given leave to intervene in the proceeding for review before the Tribunal.  Although the Public Advocate was concerned for the interests of Ms Thompson, the Public Advocate’s interest in the review was wider than the interests of Ms Thompson. 

1. The separate representatives for Ms Thompson in the review had been appointed by the Tribunal under s 125 of the GAA.  The representatives were charged with representing her views, wishes and interests.  The Tribunal dealt with the payment of the separate representatives for Ms Thompson in paragraphs [59] to [61] of the Tribunal’s reasons.  At paragraph [60], the Tribunal stated:

“[60]The Tribunal considers that the professional fees of the representatives should be paid from the adult’s funds.  The question of whether Perpetual should be required to reimburse the adult for these costs may be an issue to consider when the Tribunal resumes the review of Perpetual’s appointment as administrator.”

The direction that the Tribunal gave to Perpetual on 17 July 2007 that as the administrator of Ms Thompson it should pay the fees of the adult’s appointed representatives from the funds of the adult was limited to the proceeding before the Tribunal.

Approach to the costs of the application

1. There is no issue that the court has power to make an order for costs in deciding a question of law referred to the court under s 105A of the GAA: s 221 Supreme Court Act 1995. The general rule about costs found in r 681 of the UCPR is that costs of a proceeding are in the discretion of the court, but follow the event, unless the court orders otherwise. 

1. The first respondent took one position on each of the questions of law that were referred to the court.  The Public Trustee took the opposing position.  It was conducted as an adversarial hearing.  The representatives for Ms Thompson and the Public Advocate supported the Public Trustee’s position.  It was proper for each of the respondents to be joined as parties to the application, because they had been parties to the proceeding for review in the Tribunal.  Perpetual did not object to the lawyers appointed as separate representatives for Ms Thompson appearing on the application. 

1. Each of Perpetual and the Public Trustee had mixed success on the questions of law.  Questions 1 and 3 were answered against the submissions put up by Perpetual.  Questions 2 and 5 were answered against the submissions put up by the Public Trustee.  Question 4 was unnecessary to answer, because of the answer that was given to Question 2.  Question 3 on the authority of the litigation guardian was straightforward and was given much less attention in the application than Questions 1, 2 and 5. 

1. Each party in a proceeding before the Tribunal must bear its own costs of the proceeding, subject to the power of the Tribunal to 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:  s 127 GAA. That fetter on the power to award costs that applies to the Tribunal does not circumscribe the discretion to deal with the costs of the application brought in the court pursuant to s 105A of the GAA.

1. The nature of the jurisdiction exercised by the Tribunal in overseeing the administration of funds belonging to an adult with impaired capacity which resulted in the referral of the questions of law to the court is one factor to take into account in dealing with the question of the costs of the application for that referral.  That is balanced to some extent by the fact that the review before the Tribunal that gave rise to the referral of the questions of law concerned the remuneration charged by Perpetual and therefore its commercial interests in the conduct of its business as a trustee company. 

1. The Public Trustee makes assertions in its submissions on costs about the conduct of Perpetual that was not examined on the application before the court.  It was the question of principle and not the detail of the dealings by Perpetual with Ms Thompson’s funds that were the subject of the application.  It is not appropriate to resolve the question of the costs of the application by investigating the details of the remuneration paid to Perpetual from Ms Thompson’s funds when that was not required to dispose of the application. 

1. The Public Trustee also suggests that there was some “fault” on the part of Perpetual in failing to ensure that the terms of the order expressed Perpetual’s appointment in clear and unambiguous terms.  I did refer to “looseness of language in the use of the word ‘trust’ in the second part of paragraph 6 of the order” in paragraph [48] of the reasons.  I had expressly found, however, at paragraph [16] of the reasons that Perpetual was not responsible for the terms of the order.  Perpetual was not a party to the application that resulted in the order.  I do not consider it appropriate to attribute the referral of the questions of law to the “fault” of Perpetual.

1. It was suggested in Perpetual’s written submissions that the questions answered in the application were not only of relevance for Perpetual in the administration of Ms Thompson’s fund, but were also of importance to the Tribunal, other parties who appear before the Tribunal and trustee companies and that the application was in the nature of a test case.  Even if the reasons may be of some assistance in other matters, the decision of the court on each of the questions of law referred by the Tribunal was primarily for the purpose of facilitating Perpetual’s ongoing administration of the fund for Ms Thompson under the order. 

1. Because of the manner in which the application proceeded with Perpetual and the Public Trustee conducting themselves as parties to an application where the outcome was hotly in dispute, the mixed success of each of these parties favours exercising the discretion in relation to costs by ordering that each of those parties bears its own costs.  This is not in any way to be taken as lack of recognition of the assistance provided to the court in dealing with the questions by the participation of the Public Trustee which was considerable and reflects its public role.  For similar reasons, although the Public Advocate was carrying out a public role in becoming a party to the proceeding in the Tribunal and the application before the court, the mixed success that the Public Advocate had on the application favours making no order as to the costs of the Public Advocate.

1. The position is different, however, for the representatives of Ms Thompson.  It was the administration of Ms Thompson’s fund that was in issue in the Tribunal and the subject of the questions that were referred to the court.  Perpetual’s acceptance that its costs of the application should not be reimbursed from Ms Thompson’s fund recognised that Ms Thompson’s fund should be out of pocket as little as possible, as a result of the referral.  Although the lawyers for Ms Thompson supported the Public Trustee’s position and therefore had the same mixed success on the application as the Public Trustee, Ms Thompson’s position in the application was entirely due to circumstances out of Ms Thompson’s control.  Perpetual did not object to the prudence of Ms Thompson being separately represented on the application.  The second respondent’s written submissions on costs seek an order in terms that Perpetual pays the second respondent’s costs of the proceeding, and does not seek indemnity costs. It is appropriate to order that the first respondent pay the second respondent’s costs of the application to be assessed. 

Appeal Costs Fund

1. Because of the order for costs that I am proposing to make in favour of Ms Thompson, it is unnecessary consider the application made on her behalf for an indemnity certificate under the ACFA.  It remains to consider the application made for an indemnity certificate by each of Perpetual and the Public Trustee.

1. The jurisdiction to make an order under s 15(1) of the ACFA was considered in Land and Resources Tribunal v Schmidt [2006] 1 Qd R 161, 169. Although the definition of “appeal” in s 4 of the ACFA is wider enough to cover the reference to the court of a question of law under s 105A of the GAA, the jurisdiction of the court to make an order under s 15(1) of the GAA depends upon there being success in the court on the question of law which is against the decision of the Tribunal. 

1. A similar issue arose in Mason v Mason (No 2) [1997] 1 VR 627 on an equivalent statutory provision in which it was decided that an indemnity certificate could not be granted unless there was first a decision in the court below and then a question reserved for the court’s opinion.

1. The Tribunal refrained from deciding the questions of law that were referred to the court.  The Public Trustee argues that as the Tribunal recorded in paragraph [44] of the Tribunal’s reasons its decision not to proceed with the review because of Perpetual’s contention, that decision had been displaced by the court’s determination of the questions of law and the review will now proceed.  It was the questions of law and not the Tribunal’s decision not to proceed with the review that was the subject of the application to the court. 

1. Although indemnity certificates pursuant to s 15 of the ACFA were granted to the respondents on a reference under s 105A of the GAA in Guardianship and Administration Tribunal v The Public Trustee of Queensland & Ors [2005] QSC 126, the question of whether there had been success against the decision of the Tribunal does not appear to have been an issue.

1. The application by each of Perpetual and the Public Trustee for an indemnity certificate pursuant to s 15 of the ACFA must be refused, on the basis that there is no jurisdiction to grant that certificate.  Even if there were jurisdiction, I would not be inclined to grant indemnity certificates, when the questions of law were answered by dealing with the opposing contentions put forward by each of Perpetual and the Public Trustee and were not required to be answered as a result of any erroneous decision made by the Tribunal.

Orders

1. There orders that I will make are:

1.          The first respondent must pay the second respondent’s costs of the application to be assessed.

2.          That otherwise there is no order as to the costs of the application.

3. The application by each of the first and third respondents for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 is refused.