Mulcahy v Mulcahy

[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.…