Guardianship and administration matters for adults
DELIVERED ON:
12 April 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
TCN shall pay TL’s costs of the application for an order about an Enduring Power of Attorney fixed at $17,500 including GST.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – where a costs award was set aside on appeal on the grounds of procedural unfairness in the hearing – where the question of costs was remitted to a differently constituted tribunal – whether costs should be awarded and if so, in what amount
COURTS AND JUDGES – PRECEDENTS – DECISIONS OF PARTICULAR COURTS – LOWER COURTS – where the Appeal Tribunal remitted the application for costs to a differently constituted tribunal for reconsideration – where after the remittal order a differently constituted Appeal Tribunal decided that such applications for costs should be dealt with in a certain way – where the costs respondent submits that the tribunal is bound by the decision of the differently constituted Appeal Tribunal – whether the tribunal hearing the remitted application for costs is so bound
[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.
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Details
AGLC
TAJ (Costs) [2023] QCAT 133
Case
[2023] QCAT 133
Decision Date
CaseChat Overview and Summary
This is a decision about costs in a remitted hearing, following a successful appeal against a costs award made by the tribunal. The order which was appealed against was made on 26 March 2021. On that day after a tribunal member heard and determined various applications made by TCN about matters concerning the adult TAJ, including about an enduring power of attorney, the successful party TL made an application under section 125 of the Power of Attorney Act 1998 (Qld) (POA Act) that TCN should pay TL’s costs. The application for costs was successful and the tribunal ordered TCN to pay TL’s costs fixed at $15,000. TCN appealed against the tribunal’s order and on 18 October 2022 the Appeal Tribunal set aside the costs award on the grounds of procedural unfairness in the hearing when dealing with the costs application. The appeal decision was reported as TCN v Public Guardian & anor [2022] QCATA 158. The Appeal Tribunal remitted the application for costs to a differently constituted tribunal and that has now come before me. The parties to the remitted costs application have been permitted to file evidence and make submissions and both parties have done so. There is a complication in deciding the remitted costs application because after the Appeal Tribunal’s remittal order, a differently constituted Appeal Tribunal decided that applications for costs under the POA Act should be decided under the principles in the Guardianship and Administration Act 2000 (Qld) (GAA Act) and not under the POA Act. That decision was reported as in MJ v MET & Ors [2022] QCATA 180. TCN has submitted that I am bound to follow MJ v MET & Ors. Since the costs provisions in the POA Act and the GAA Act are quite different and will affect the outcome of the remitted costs application, I need to decide whether I am bound to follow MJ v MET & Ors. If I am not so bound, then I need to decide whether I should follow it anyway. And finally I need to decide, on the tests which apply, whether a costs award should be made and if so in what amount. I have concluded that I am not bound by the Appeal Tribunal decision in MJ v MET & Ors. I have also concluded that I should not follow it. I decided the costs application by applying the principle in section 125 of the POA Act that costs usually follow the event. I decided that TCN should pay TL’s costs and fixed them at $17,500 including GST.