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 200APPEARANCES & REPRESENTATION:
Applicant:
R Hii, instructed by Ashurst Australia
Respondent:
J Thomas, instructed by Bradley Munt & Co
REASONS FOR DECISION
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.
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…
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- AGLC
- Mulcahy v Mulcahy [2018] QCATA 197
- Case
- [2018] QCATA 197
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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