MET (Costs) - [2023] QCAT 132

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MET (COSTS) [2023] QCAT 132

PARTIES:

In applications about matters concerning MET

APPLICATION NO/S:

GAA13741-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

12 April 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The applications made by MET and MK for their costs to be paid by MJ are dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – where an award of costs was set aside on appeal on the grounds that the wrong test was applied – where the question of costs was remitted to a differently constituted tribunal – whether costs should be awarded

Guardianship and Administration Act 2000 (Qld), s 127

Power of Attorney Act 1998 (Qld), s 125

MET [2021] QCAT 254

MJ v MET & Ors [2022] QCATA 180

WJ [2021] QCAT 450

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

This is a remitted hearing to decide a costs application, following a successful appeal against an order for costs made by the tribunal.
The order which was appealed against was made on 30 July 2021 in a decision published as MET [2021] QCAT 254. The tribunal decided costs by applying the provisions of section 125 of the Power of Attorney Act 1998 (Qld) (POA Act) which provides that usually in applications under the POA Act, costs follow the event. Orders were made that MJ pay MET’s costs of $3,017 and MJ pay MK’s costs of $7,284.
MJ who is the grandson of the adult MET, had made applications to the tribunal. MK is MET’s son who MET had appointed as attorney in an enduring power of attorney.
MJ appealed against the tribunal’s costs order and on 7 December 2022 the Appeal Tribunal set aside the costs order on the grounds that section 125 of the POA Act did not apply, and that instead section 127 of the Guardianship and Administration Act 2000 (Qld) (GAA Act) applied to such costs. The appeal decision was reported as MJ v MET & Ors [2022] QCATA 180. The remittal order was:
The applications by MET and MK for costs in the proceedings at first instance are returned to the tribunal, differently constituted, for reconsideration.

The applicable costs provisions

It was found by the Appeal Tribunal that the applicable costs provisions are in section 127 of the GAA Act:
127 Costs
(1) Each party in a proceeding is to bear the party’s own costs of the proceeding.
(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) Also, the following provisions of the QCAT Act, chapter 2, part 6, division 6 in relation to costs apply to…

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.

Continue reading MET (Costs)

Details

AGLC: MET (Costs) [2023] QCAT 132
Case: [2023] QCAT 132
Decision Date

CaseChat Overview and Summary

The decision concerns a remitted hearing to decide a costs application following a successful appeal against an order for costs made by the tribunal. The original order for costs was made on 30 July 2021 in a decision published as MET [2021] QCAT 254. The tribunal decided that costs should be paid by MJ, the grandson of MET, the adult in question. MET had appointed MK, her son, as attorney in an enduring power of attorney. MJ appealed against the tribunal's costs order and on 7 December 2022 the Appeal Tribunal set aside the costs order on the grounds that section 125 of the Power of Attorney Act 1998 (Qld) did not apply, and that instead section 127 of the Guardianship and Administration Act 2000 (Qld) applied to such costs. The remittal order was: The applications by MET and MK for costs in the proceedings at first instance are returned to the tribunal, differently constituted, for reconsideration. The issue before the tribunal was whether MJ's applications were frivolous or vexatious, and whether they constituted exceptional circumstances that would allow the tribunal to order MJ to pay costs. The tribunal found that the applications were not frivolous or vexatious, and there were no exceptional circumstances that would allow the tribunal to order MJ to pay costs. The tribunal dismissed the applications made by MET and MK for their costs to be paid by MJ. The tribunal found that MJ had genuine concerns about MET's capacity, and that his applications were not baseless or improper. The tribunal also found that the merits of the application about capacity were not clear until the hearing itself, and that allowance must be made for the fact that a weak case might reasonably appear strong prior to the hearing but its apparent strength diminishes during the discussion in the hearing. This is what happened here. There were no exceptional circumstances in these applications which enable the tribunal, if it were to think it were right to do so in its discretion, to award costs. The tribunal dismissed the applications made by MET and MK for their costs to be paid by MJ.

Orders