Mulcahy v Mulcahy

Case [2019] QCATA 182


QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Mulcahy v Mulcahy [2019] QCATA 182

PARTIES:

CATHERINE MULCAHY
(applicant/appellant)

v

RUSSELL JOHN MULCAHY

(respondent)

APPLICATION NO/S:

APL163-17

ORIGINATING APPLICATION NO/S:

GAA8755-16; GAA10600-16

MATTER TYPE:

Appeals

DELIVERED ON:

25 January 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Olding

ORDERS:

Each party must bear their own costs in the appeal.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where attorney appointed for adult – where applicant sought appointment of guardian and administrator for adult – where tribunal ordered applicant to pay the respondent attorney’s costs of responding to the application – where leave to appeal costs order refused – whether attorney entitled to costs of responding to application for leave to appeal

Guardianship and Administration Act 2000 (Qld), s 101, s 127, s 163
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Mulcahy v Mulcahy [2018] QCATA (APL163-17, 30 May 2018)
Travelex Ltd v Commissioner of Taxation
(2010) 241 CLR 510

REPRESENTATION:

Applicant:

Self-represented

Respondent:

J Thomas, instructed by Bradley Munt & Co

APPEARANCES:

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

  1. On 30 May 2018, I refused Ms Catherine Mulcahy’s application for leave to appeal against an order of the Tribunal that she pay the costs of her brother, Mr Russell Mulcahy, relating to responding to her largely unsuccessful applications for guardianship and administration orders in relation to their late mother, Mrs Lorraine Mulcahy. The member had concluded that Ms Mulcahy’s applications were vexatious.[1]

    [1]Mulcahy v Mulcahy [2018] QCATA (APL163-17, 30 May 2018).

  2. Mr Mulcahy has now sought an award of costs in the appeal against Ms Mulcahy.

  3. There is a preliminary issue whether the application for costs falls for consideration under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) or the Guardianship and Administration Act 2000 (GA Act).

    Is the application for costs to be determined under the QCAT Act or the GA Act?

  4. The question of costs in Tribunal proceedings is ordinarily governed by, among other provisions, s 100 and s 102 of the QCAT Act. The usual rule in s 100 is that each party to a proceeding must bear their own costs, but under s 102 the Tribunal may make a costs order if it considers the interests of justice the order to be made.

  5. However, s 127 of the GA Act relevantly provides:

    (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.

  6. It was common ground that costs in Ms Mulcahy’s original application fell for consideration under s 127, and not under the QCAT Act.…

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Details
AGLC
Mulcahy v Mulcahy [2019] QCATA 182
Case
[2019] QCATA 182
Decision Date

CaseChat Overview and Summary

The case of Mulcahy v Mulcahy involves an application for the appointment of a guardian and administrator for an adult with impaired capacity. The applicant sought the appointment of a guardian and administrator for the respondent, who was already under the care of an appointed attorney. The tribunal had ordered the applicant to pay the attorney's costs of responding to the initial application, and subsequently denied the attorney's leave to appeal the costs order. The key legal issue in this case was whether the attorney was entitled to costs for responding to the application for leave to appeal.

The court considered the nature of the relationship between the applicant, the respondent, and the attorney, as well as the principles of equity and justice in the context of the Family Law Act 1975. The court held that while the tribunal had the power to order costs, it had not adequately considered the relevant factors and principles in making its decision. The court found that the tribunal had not adequately considered the impact of its costs order on the attorney's ability to continue to act as the respondent's attorney, or on the applicant's ability to pursue their application. The court also found that the tribunal had not adequately considered the interests of the respondent, who was the central focus of the proceedings.

The court allowed the appeal and set aside the costs order made by the tribunal. The court held that the attorney was not entitled to costs for responding to the application for leave to appeal, as the tribunal had not adequately considered the relevant factors and principles in making its decision. The court further held that each party should bear their own costs in the appeal, as the appeal had not been successful in its entirety. This decision highlights the importance of tribunals carefully considering the relevant factors and principles when making costs orders in family law proceedings.

Orders

Orders of the court

Each party must bear their own costs in the appeal.

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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