HB
[2011] QCAT 110
•25 March 2011
| CITATION: | HB [2011] QCAT 110 |
| PARTIES: | HB |
| APPLICATION NUMBER: | GAA1407-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 25 March 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 25 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for costs is dismissed. |
| CATCHWORDS : | COSTS – whether exceptional case Guardianship and Administration Act 2000, s 127(2) |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 24 December 2010 the tribunal dismissed an application made by HM for the appointment of a guardian and administrator for his mother, HB. HM had not provided medical evidence to support his contention that HB had impaired decision-making capacity. He had alleged that HB was being subjected to undue influence by WT and WJ and as a result he had alleged HB was unable to make decisions freely and voluntarily. The tribunal was unable to find any satisfactory evidence of impaired decision-making capacity.
On 18 February 2011 an application was made to the tribunal by HB seeking an order that HM pay the legal costs she had incurred in responding to the application for the appointment of a guardian and administrator.
On 24 February 2011 a staff member from the tribunal registry wrote to HM asking for his response to the costs application. He provided his response on 9 March 2011.
HM opposed the costs application. He submitted that his application had been made out of concern for his mother as he had wanted to ensure that the emotional, physical and medical needs of his mother were being met. HM submitted that he had acted on advice he had obtained from the elderly abuse hotline and the Queensland Law Society.
As to the costs incurred by HB, HM submitted that his mother should have been eligible for legal aid. He submitted that she did not have to incur legal costs in order to respond to his application as all she had to do was to provide a medical report confirming she had capacity for decision-making.
Submissions were received from JW who opposed the costs application and who submitted that the parties in this matter should have to bear their own legal costs.
Submissions were received from the lawyers for HM. They recited the events which had preceded the lodging of the application by HM. They submitted that those events could be taken as establishing that HM had very limited options to restore contact with his mother. One of those options was stated to be seeking the appointment of a guardian due to the purported influence being exerted over his mother by WT.
It was further submitted that there is a distinction between a frivolous application and a weak application. HM’s lawyers argued that nothing in their client’s behaviour could be characterised as frivolous. Similarly they argued that their client had not acted in a vexatious way in that the application was not made simply to annoy his mother.
It was argued that this was not an exceptional case warranting the making of a costs order against their client.
10. On 21 March 2011 the tribunal received written submissions from WT in support of the costs application. Those submissions were endorsed by HB.
11. In proceedings in this tribunal, it is the general position as set out in section 100 of the Civil and Administrative Tribunal Act 2009 that parties must bear their own costs unless an enabling Act provides otherwise. In this case the enabling Act was the Guardianship and Administration Act 2000.
12. Section 127(1) of that Act provides that each party in a proceeding is to bear their own costs of the proceeding. Section 127(2) of that Act provides that the tribunal may nevertheless order an applicant to pay an active party’s costs in exceptional circumstances. There is no statutory definition of the phrase “exceptional circumstances” but examples of exceptional circumstances when applications are frivolous or vexatious are provided.
13. The tribunal is not persuaded that there are exceptional circumstances in this case that warrant the making of a costs order against HM. The evidence he had provided to the tribunal in support of his application for the appointment of a guardian and administrator was weak and was not accepted by the tribunal as rebutting the presumption that HB had decision-making capacity.
14. However the decision made by the tribunal took into account all of the evidence provided to the tribunal. HM did not have access to the evidence ultimately submitted by HB at the time he lodged his application. His contentions that HB was unable to make decisions freely and voluntarily could not ultimately withstand the evidence received from his mother.
15. However the tribunal cannot conclude that his application was made frivolously or was vexatious in nature. It is not an uncommon event that applications are dismissed by the tribunal as the evidence is found not to amount to a rebuttal of the presumption of capacity. It is not exceptional for such an outcome to occur.
16. In view of the conclusion reached that this is not an exceptional case, the tribunal dismisses the application for costs made by HB and each party will bear their own costs of the application determined on 24 December 2010 by the tribunal.
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