Mulcahy v Mulcahy

Case [2018] QCATA 197

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Mulcahy v Mulcahy [2018] QCATA 197

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:

30 May 2018

HEARING DATE:

23 May 2018

HEARD AT:

Brisbane

DECISION OF:

Member Olding

ORDERS:

The application for leave to appeal filed by Catherine Mulcahy on 22 May 2017 is refused.

CATCHWORDS:

MENTAL HEALTH – GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS & RECEIVERS – OTHER MATTERS – where attorney appointed for adult – where applicant sought appointment of guardian and administrator for adult, alleging wrongdoing by attorney, but adducing no evidence to support allegations – where tribunal member ordered the applicant to pay the attorney’s costs of responding to the application – whether application vexatious or otherwise ‘exceptional’ – meaning of vexatious – whether member erred in awarding costs

Guardianship and Administration Act 2000 (Qld), ss 100, 127
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 100, 102, 142(3)(a)(iii)


Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1
Kent v Wilson [2000] VSC 98
Re Perry and Brown’s Patents (1930) 48 RPC 200

APPEARANCES & REPRESENTATION:

Applicant:

R Hii, instructed by Ashurst Australia

Respondent:

J Thomas, instructed by Bradley Munt & Co

REASONS FOR DECISION

  1. Ms Catherine Mulcahy has filed an application for leave to appeal, and to appeal, against an order of a member of the Tribunal (the Member) that she pay the costs of her brother, Mr Russell Mulcahy, relating to her unsuccessful applications for guardianship and administration orders in relation to their late mother, Mrs Lorraine Mulcahy.

  2. I have decided to refuse leave to appeal.  My reasons follow.

    Background

  3. The Member considered that Ms Mulcahy’s application for guardianship and administration orders, and continuing with the application through an oral hearing, were vexatious and exceptional, such that an order that Ms Mulcahy pay Mr Mulcahy’s costs was warranted.

  4. In very broad terms, the Member’s reasons (Reasons) included that a comprehensive report of the Public Guardian made available to Ms Mulcahy the day before the hearing of the application found that Mr Mulcahy had no case to answer in respect of various allegations of financial impropriety as the late Mrs Mulcahy’s attorney.  Notwithstanding this, and the Member’s warning at the commencement of the hearing of the difficulty her application would face, Ms Mulcahy proceeded with the hearing, adducing no substantive evidence in support of these allegations.

  5. The Member also made some directions to Mr Mulcahy as attorney, which the Member described as of a relatively minor nature to address communication issues between Ms Mulcahy and Mr Mulcahy.

    Statutory framework

  6. Ordinarily, the question of costs in Tribunal proceedings is governed by, among provisions, ss 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Section 100 sets out the usual rule that each party to a proceeding must bear their own costs. However, s 102 empowers the Tribunal to make a costs order if the Tribunal considers the…

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Details
AGLC
Mulcahy v Mulcahy [2018] QCATA 197
Case
[2018] QCATA 197
Decision Date

CaseChat Overview and Summary

In the case of Mulcahy v Mulcahy, Catherine Mulcahy sought to be appointed as the guardian and administrator of her late mother, Mrs Mulcahy, alleging wrongdoing by her brother, Michael Mulcahy, who was appointed as her mother's attorney. Michael opposed the application, arguing that it was frivolous and vexatious. The tribunal member found that Catherine's application was indeed vexatious and exceptional, warranting an order for her to pay Michael's costs. Catherine appealed this decision, arguing that the tribunal member erred in awarding costs.

The legal issues in this case centered on whether the tribunal member correctly exercised their discretion under section 127 of the Guardianship and Administration Act 2000 (Qld) to order Catherine to pay Michael's costs, and whether the application was vexatious or exceptional. The court was required to determine whether the tribunal member's decision was erroneous and whether the costs order was justified.

The court found that the tribunal member correctly exercised their discretion under section 127 of the Guardianship and Administration Act 2000 (Qld) in ordering Catherine to pay Michael's costs. The court noted that the concept of vexatiousness in litigation is well-established and that the expression "exceptional" should take its ordinary meaning. The court held that it would be unwise to lay down a general rule as to what constitutes an exceptional case. In this case, the tribunal member concluded that Catherine's application was vexatious and exceptional due to her persistence with the application despite lacking substantive evidence to support her allegations.

The court also found that the tribunal member did not err in awarding costs. The court noted that the Member took into account the serious nature of the allegations and the lack of evidence in concluding that the application was vexatious. The court held that there was no substantial injustice in requiring Catherine to bear the costs, as she had brought and continued the application without any substantive evidence to support her allegations.

ORDERS:
The application for leave to appeal filed by Catherine Mulcahy on 22 May 2017 is refused.

Orders

Orders of the court

The application for leave to appeal filed by Catherine Mulcahy on 22 May 2017 is refused.

Background

Background to the litigation

I have decided to refuse leave to appeal. My reasons follow.Background The Member considered that Ms Mulcahy’s application for guardianship and administration orders, and continuing with the application through an oral hearing, were vexatious and exceptional, such that an order that Ms Mulcahy pay Mr Mulcahy’s costs was warranted. In very broad terms, the Member’s reasons (Reasons) included that a comprehensive report of the Public Guardian made available to Ms Mulcahy the day before the hearing of the application found that Mr Mulcahy had no case to answer in respect of various allegations of financial impropriety as the late Mrs Mulcahy’s attorney. Notwithstanding this, and the Member’s warning at the commencement of the hearing of the difficulty her application would face, Ms Mulcahy proceeded with the hearing, adducing no substantive evidence in support of these allegations. The Member also made some directions to Mr Mulcahy as attorney, which the Member described as of a relatively minor nature to address communication issues between Ms Mulcahy and Mr Mulcahy.Statutory framework Ordinarily, the question of costs in Tribunal proceedings is governed by, among provisions, ss 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Section 100 sets out the usual rule that each party to a proceeding must bear their own costs. However, s 102 empowers the Tribunal to make a costs order if the Tribunal considers the interests of justice require. Section 102 also specifies a number of matters the Tribunal may take into consideration in deciding whether to make a costs order, including whether a party is acting in a way that unnecessarily disadvantages another party, the nature and complexity of the dispute, the relative strengths of the claims and the financial circumstances of the parties. However, it is common ground that the Member correctly considered whether to make the costs order by reference to s 127 of the Guardianship and Administration Act 2000 (Qld) (GA Act), which 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. Importantly, subject to an exception that is not relevant to the current matter, s 101 of the GA Act provides that s 102 of the QCAT Act does not apply to Tribunal proceedings under the GA Act. In applying s 127 of the GA Act, the Member concluded that factors set out in s 102 of the QCAT Act, such as the complexity of the dispute, the relative strengths of the claims and the parties’ financial positions, were, in view of s 101 of the GA Act, irrelevant, ‘unless they assist me in determining if an exceptional case exists’. The Member concluded that these factors did not so assist in this case.[1] [1]Reasons at [56].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The third allegation related to Mr Mulcahy’s private use of Mrs Mulcahy’s motor vehicle. This was found to be substantiated in the sense that the report found that Mr Mulcahy had been using the vehicle. However, as the Member noted, this use was with the permission of Mrs Mulcahy.[10] It is therefore clear that the Member took into account that the allegation was ‘substantiated’ in the sense intended by the report.[10]Reasons at [64].Conclusion on application for leave to appeal Having regard to the reasons outlined in relation to the issues discussed above, I consider that the application for leave to appeal does not raise a reasonably arguable case of error. In any case, given the circumstances of the matter, in which Ms Mulcahy brought and continued an application based on serious accusations unsupported by any substantive evidence, I consider that Ms Mulcahy would have poor prospects of obtaining substantive relief. Further, this matter does not raise any point of principle in relation to which a decision of the appeal tribunal would provide a public benefit. The concept of vexatiousness in the context of litigation is a longstanding one. It has been considered in numerous cases. It is not suggested that the expression should take any different meaning in its context in s 127 of the GA Act. The expression ‘exceptional’ takes its ordinary meaning. It is accepted that it would be unwise to attempt to lay down any general rule with regard to what is an exceptional case. Nor is this a case where leave is required to correct a substantial injustice. Even if, contrary to my reasoning, there was an error in the Member’s approach, it is not clear that any such error has led to an injustice. Ms Mulcahy brought and continued the application based on allegations against Mr Mulcahy, but failed to adduce any substantive evidence to the support the allegations. Mr Mulcahy reasonably incurred legal costs in responding to the allegations,[11] which were of a serious nature. I see no substantial injustice in requiring Ms Mulcahy, rather than Mr Mulcahy, to bear those costs. There is no reason to confine the costs ordered to be paid to those relating to the hearing itself since, as noted, the vexatious or exceptional nature of the case stems from Ms Mulcahy both bringing and persisting with the application.[11]Reasons at [65]. Accordingly, I have concluded that leave to appeal should be refused.

Ratio Decidendi

Legal Principle Established

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