TJR v The Public Trustee of Queensland - [2022] QCATA 176

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TJR v The Public Trustee of Queensland and Anor [2022] QCATA 176

PARTIES:

TJR

(applicant/appellant)

v

The Public Trustee of queensland

gcb

(respondents)

APPLICATION NO/S:

APL411-17

ORIGINATING APPLICATION NO/S:

GAA3847-18

GAA4511-17

MATTER TYPE:

Appeals

DELIVERED ON:

29 November 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

Member Clarkson

ORDERS:

1.     Each party must bear their own costs in the stay application.

2.     Each party must bear their own costs in the application for leave to appeal filed by the applicant.

3.     Each party must bear their own costs in the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where appeal from decision made under the Guardianship and Administration Act 2000 (Qld) successful – whether order for costs should be made – whether order for costs against representative in interests of justice

Guardianship and Administration Act 2000 (Qld), s 127

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48(1), s 102(3), s 103

Gitsham v Suncorp Metway Insurance [2002] QCA 416.

De Sousa v Minister of Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544.
Mulcahy v Mulcahy [2019] QCATA 182
TJR v Public Trustee of Queensland and GCB [2019] QCATA 183

Tracey v Olinderidge [2015] QCAT 7

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Applicant/appellant:

K N Wilson QC of Counsel instructed by Cooper Maloy Legal

The Public Trustee of Queensland:

M Steele of Counsel

The estate of GCB:

K & L Gates Solicitors

REASONS FOR DECISION

Background

Prior to 6 December 2017, TJR and the Public Trustee of Queensland (the Public Trustee) had each been appointed administrator for GCB for particular and separate financial matters. On 6 December 2017, a Member of the Tribunal decided to suspend TJR as administrator for GCB for the matters for which he was, at that time, appointed by the Tribunal (‘the suspension order’). In accordance with s 155 of the Guardianship and Administration Act 2000 (Qld) (‘the GA Act’), the effect of the suspension order was that the Public Trustee became the administrator for GCB for all financial matters. The member conducted a hearing that same day without notice to TJR or GCB or any other person except the Public Trustee. The member also decided, pursuant to s 157 of the GA Act, to postpone the delivery of the suspension order to the active parties for 14 days except in respect of TJR who it was ordered ‘shall receive notice from the Public Trustee as and when appropriate’ (‘the postponement order’).
Following the filing of an application for directions and advice by the Public Trustee, another hearing took place on 14 December 2017. A series of directions were made on that date and in addition to those directions, a further postponement order.
On 16 January 2018 the then President of the Tribunal stayed the suspension order until 4:00pm on 6 February 2018. Ultimately, the Tribunal reviewed the appointment of the administrators for GCB with no further orders being made in the stay application in the appeal. The suspension order had lapsed by the time of the appeal hearing.
On 20 December 2019, the Appeal Tribunal granted TJR’s application for leave to appeal and allowed TJR’s appeal, setting aside the decision made on 6 December 2017 and in substitution therefor making a declaration that the decision to suspend TJR as administrator for GCB and the order postponing delivery of that decision were not properly made. Directions were also made for the filing of submissions by the parties in relation to TJR’s application for costs in the appeal including the application for leave to appeal and in the stay.[1]
[1]TJR v Public Trustee of Queensland and GCB [2019] QCATA 183.
During the course of the application for costs proceeding to an on the papers hearing, the Appeal Tribunal made directions seeking submissions as to the appropriate legislative provision under which costs should be determined in an appeal from a decision made under the GA Act.[2] Submissions were also provided in response to those directions. In addition to submissions made in response to the directions made in relation to the application for costs, TJR also relies on the submissions he made in the appeal regarding the actions and inaction of the representatives of the Public Trustee in appearances before the learned member in the matter below.
[2]Directions of the Tribunal made 16 July 2020 and 12 August 2020.
We have carefully considered the written submissions of the parties to the appeal in relation to TJR’s application for costs.

Relevant legislative provisions

Section 127 of the GA Act provides:
Costs
(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.
(3) Also, the following provisions of the QCAT Act, chapter 2, part 6, division 6 in relation to costs apply to the tribunal for proceedings under this Act—
(a) section 101;
(b) sections 103 to 109.
Section 103 of the QCAT Act provides:
Costs against representative in interests of justice
(1) If the tribunal considers a representative of a party to a proceeding, rather than the party, is responsible for unnecessarily disadvantaging another party to the proceeding as mentioned in section 102(3)(a), the tribunal may make a costs order requiring the representative to pay a stated amount to the other party as compensation for the unnecessary costs.
(2) Before making a costs order under subsection (1), the tribunal must give the representative a reasonable opportunity to be heard in relation to making the order.
Section 102(3) of the QCAT Act relevantly provides:
Costs against party in interests of justice
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision—
(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant.
Section 48(1)(a) to (g) inclusive of the QCAT Act provide:
Dismissing, striking out or deciding if party causing disadvantage
(1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
(a) not complying with a tribunal order or direction without reasonable excuse; or
(b) not complying with this Act, an enabling Act or the rules; or
(c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
(d) causing an adjournment; or
(e) attempting to deceive another party or the tribunal; or
(f) vexatiously conducting the proceeding; or
(g) failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse.

Outcome of the appeal

TJR’s appeal was successful. We found the Member had failed to provide adequate reasons for exercising the discretion in s 155(3) of the GA Act not to notify TJR of any concerns about his actions as an administrator held by the Tribunal or intention to suspend him or the need to take urgent action to suspend TJR as administrator for GCB.[3]
[3]TJR v Public Trustee of Queensland & Anor [2019] QCATA 183, [45]-[48] inclusive.
The various steps taken by the Member are set out in our reasons for decision in the appeal.[4] In our reasons in the appeal we found that the Member had already decided to suspend TJR before the hearing took place so that none of the active parties including the Public Trustee were invited to provide any information prior to the suspension order being made. We said:
Nothing in the terms of s 155 suggest that an application is required for the Tribunal to make a suspension order. Certainly no formal application for a suspension order or application for an interim order was made in this case. The Tribunal acted on its own volition.[5]
Relying on the transcript of the proceeding on 6 December 2017, the Appeal Tribunal formed the view that the learned member had already decided to suspend the administrator before the hearing took place so that none of the active parties including the PTQ were invited to provide further information prior to the suspension order being made. In our view the purpose of the hearing was for the learned member to explain to the PTQ how he wanted the suspension order and the postponement order effected.[6]
[4]Ibid, [2]-[7] inclusive.
[5]Ibid, [11].
[6]Ibid, [15].

Submissions of TJR

Initially TJR submitted that the only way he could recover any of his costs was from the other party to the proceeding, the Public Trustee.
In TJR’s outline of submissions as to costs dated 24 February 2020, TJR submitted that we ought exercise the discretion in s 102(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) which provides that the Tribunal may make an order for costs against another party to a proceeding if the Tribunal considers the interests of justice require it to make the order and order that the Public Trustee pay TJR’s costs of the appeal including the application for a stay and the application for leave to appeal.[7] TJR also relies on submissions filed in the appeal on 18 March 2018 which we have also considered.[8]
[7]TJR also relies on his submissions in the appeal filed on 18 March 2018 at [28]-[32] which are consistent with the submissions made in the Outline of Appellant’s submissions as to costs dated 24 February 2020 regarding the conduct of the PTQ in the proceeding below and in the appeal.
[8]Outline of Appellant’s submissions as to costs dated 24 February 2020, [2].
In a later submission, TJR accepted the submission of the Public Trustee that as the appeal was brought by TJR under s 163 of the GA Act, that ss 100 and 102 (except to the extent it applies for s 103) of the QCAT Act do not apply to the appeal proceedings. TJR submits that s 127 of the GA Act means that the default position is that each party bears its own costs of the appeal and ss 101 and 104 to 109 (inclusive) of the QCAT Act are not applicable.[9]
[9]Outline of Appellant’s reply submissions as to costs dated 22 May 2020, [2], [4], [5], [6].
TJR submits that s 103 of the QCAT Act is potentially applicable if we accept the thrust of the submissions made on s 102(3) of the QCAT Act.
In relation to the exercise of the discretion in s 102(3) of the QCAT Act TJR argues that the Public Trustee has the duties of a model litigant and the solicitors employed by them ought to abide by the Australian Solicitors’ Conduct Rules 2012 (ASCR). It is submitted that at each of the hearings on 6 and 14 December 2017 which were conducted in the absence of TJR Rule 19.4.3 required a solicitor in those circumstances to disclose to the Tribunal all factual and legal matters which would support an argument against granting the relief proposed.[10]
[10]Outline of Appellant’s submissions as to costs dated 24 February 2020, [10].
TJR argues that Rule 19.11 requires a solicitor to inform the Tribunal of any misapprehension by it as to the effect of an order which the Tribunal is making. Rule 19.6 requires a solicitor to inform the court of any binding authority and any applicable legislation which is reasonably believed to be directly in point and against his client’s case.[11]
[11]Ibid, [11].
It is submitted that at the hearing on 6 December 2017 the solicitor representing the Public Trustee did not say anything to bring to the Tribunal’s attention the obligation of the Tribunal to afford natural justice to TJR and Rule 19.4.3 required him to do so. It is further submitted that he should have drawn the Tribunal’s attention to the many cases including High Court authority that provided for the affording of natural justice in the circumstances that prevailed. Rule 19.6 required him to do so.[12]
[12]Ibid, [12].
It is submitted that at the hearing on 6 December 2017 the representative of the Public Trustee ‘at best remained silent as to these matters and at worst actually encouraged and endorsed what the member proposed to do’.[13]
[13]Ibid, [13].
TJR relies on submissions made in the appeal including that the representative of the Public Trustee despite the presence of a lawyer for the Public Trustee did ‘all of the talking’, ‘the lawyer remained silent’, the representative ‘endorsed what the learned member was doing, and encouraged it’.[14] It is further submitted that it was incumbent on the representative to caution the member against proceeding as he did. [15]
[14]Outline of appellant’s submissions dated 8 March 2018, [16] including reliance on the transcript of the proceeding, T1-6.45.
[15]Outline of appellant’s submissions dated 8 March 2018, [16].
TJR submits that at the hearing on 14 December 2017, the lawyer’s role again was very limited and that the transcript reveals a connivance between the learned member and the representative of the Public Trustee as to how the learned member’s plan was to be implemented.[16] It is also alleged that the hearing was brought on by the Public Trustee again without notice.[17]
[16]Ibid, [17].
[17]Ibid, [17]-[27].
Further it is submitted that the representative of the Public Trustee was permitted by the legal representative to conduct the proceedings and facilitate the member acting plainly in breach of the rules of procedural fairness.[18]
[18]Ibid, [30].
It is submitted that the Public Trustee has acted in an adversarial manner in the appeal and the application for a stay of the member’s earlier orders. The appeal was strenuously resisted by Queen’s Counsel and junior counsel. We have been directed to the Public Trustee’s submissions in the appeal and further evidence adduced.
It is submitted that the Public Trustee argued positively that there was no obligation on the Tribunal to afford TJR natural justice in the way contended for and that the circumstances of the case warranted the approach taken by the Member on 6 December 2017 which were rejected by the Appeal Tribunal.
TJR submits that despite our observations as outlined above, those observations and findings do not absolve the Public Trustee’s representative from complying both with its duties as model litigant and as a solicitor. TJR submits that had the representative made appropriate submissions and submitted that the proceeding ought to be adjourned to facilitate natural justice being afforded, the orders made on 6 December and 14 December 2017 most likely would not have been made. [19]
[19]Outline of Appellant’s submissions as to costs, [17].
It is further submitted that the following factors in s 102(3) also support the making of an order for costs:
·     (a): The Public Trustee acted in a way that unnecessarily disadvantaged TJR by failing to act in accordance with its duties as model litigant and as a solicitor, in acquiescing to, and endorsing, what the member did on 6 and 14 December 2017.
·     (d)(i) It has been decided that the applicant was not afforded natural justice by the decision-maker.
·     (e) The Public Trustee both as a statutory corporation and as a representative of the State has a much, much greater capacity to meet TJR’s costs than TJR himself.
·     (f) Earlier submissions are relied on in relation to this factor.
TJR submits it is in the interests of justice that TJR recover his costs for obtaining the relief sought, the Public Trustee ought to pay the costs both because they acted as an adversarial litigant on the appeal and because its conduct either caused or significantly contributed to the orders that were made at first instance.
In relation to the application of s 103 of the QCAT Act, TJR submits that if we accept that those who represented the Public Trustee before the Member on 6 December 2017 ought to have drawn the Member’s attention to:
(a)The fact that no notice was given to TJR of the proceedings; and
(b)That the rules of procedural fairness (or natural justice) required at least consideration to be given to providing TJR with such notice and opportunity to participate in the hearing,
then s 103 of the QCAT Act is arguably engaged.

Submissions of the Public Trustee

The Public Trustee submits the application for costs should be refused because TJR has not shown any proper basis to depart from the normal principle set out in s 100 of the QCAT Act that in general ‘each party to a proceeding must bear the party’s own costs for the proceedings.’ In particular the Public Trustee points to the paragraph of our decision in the appeal set out earlier in these reasons, in particular, that the member below had already decided to suspend the administrator before the hearing took place so that none of the active parties including the Public Trustee were invited to provide further information prior to the suspension order being made. Further, the Public Trustee submits that there was no finding in the appeal decision that the respondent:
(a)Acted in any way improperly;
(b)‘encouraged’ the Member to make the orders on 6 December 2017. Indeed the Public Trustee submits the Appeal Tribunal specifically found the parties were not invited to make submissions as the Member had already decided to make the order.
(c)Advanced the contention during the hearing on 6 December 2017 that TJR had been dishonest or fraudulent. It is submitted here that the Appeal Tribunal clearly found that the Member had formed that view without any proper basis and without allowing the Public Trustee to respond, that the Appeal Tribunal found that the Tribunal may have power to suspend where an administrator is ‘perceived not to be competent’.[20] Further the Public Trustee relies on [42] of the Appeal Tribunal’s reasons:
We accept there was some evidence before the learned member on which he could reasonably be satisfied that the applicant was incompetent. As we have said, this was not challenged by TJR. [21]
[20]TJR v the Public Trustee of Queensland & Anor [2019] QCATA 183, [26]b.
[21]Respondent’s Outline – Costs dated 25 February 2020, [2].
The Public Trustee submits that the factors in s 102(3) of the QCAT Act do not support an order that the Public Trustee pay TJR’s costs. The Public Trustee submits that it is ‘well-established that the principle applicable in the Courts that costs “follow the event” is displaced’ by the provisions of the QCAT Act and that s 102(3) sets out some bases upon which the Tribunal may depart from the usual costs order that the parties bear their own costs. It is submitted by the Public Trustee that the bases do not support such an order in this case.[22]
[22]Ibid, [3].

The Public Trustee submits that it was in the ‘invidious position of responding to an urgent summons from the Tribunal on 6 December 2017 in circumstances where the Appeal Tribunal has found that the Member below ‘had already decided’ to suspend the appointment of TJR.
The Public Trustee submits that, as remaining administrator, he owed his paramount obligation to GCB whose affairs were being administered and was required by the Tribunal to attend on 6 December 2017 to carry out directions which the tribunal had already decided to make. In those circumstances, the Public Trustee submits that there was no obligation on the part of the Public Trustee to advance TJR’s case so long as the Public Trustee did not mislead the Tribunal or withhold any relevant information or submission. The Public Trustee submits there is no suggestion this occurred nor any proper basis for any suggestion that it did.[23]
[23]Ibid, [6] and [7].
The Public Trustee submits that as the Appeal Tribunal accepted there was evidence upon which the Member could be reasonably satisfied of TJR’s incompetence, concerns raised by the Public Trustee upon invitation by the Tribunal below were vindicated in the Appeal Tribunal’s decision and the Public Trustee did not make any submission in the appeal that TJR was fraudulent.[24]
[24]Ibid, [8].
The Public Trustee submits that the contention of TJR seems to be that the Public Trustee had some obligation notwithstanding that the member below had already decided on his course of action somehow to ensure that the member did not make an incorrect decision. Nothing in the ASCR referred to by TJR supports that contention.[25]
[25]Ibid, [9].
The Public Trustee submits that Rule 19.4 of the ASCR relied upon by TJR refers to the situation where the lawyer is ‘seeking any interlocutory relief’ in an ex parte application. The Public Trustee says that was not the case. The Public Trustee says in this case the Tribunal had already determined to make the orders. Further, the obligation is on the practitioner to ensure that matters which are known to the practitioner are imparted to the court so that the practitioner does not mislead the court in the absence of the other party. That obligation it is said cannot simply extend to some overarching duty to prevent the tribunal from falling into error generally.[26]
[26]Ibid, [10].
The Public Trustee submits that in any event under Rule 19.4.3 and the surrounding rules in Part 19 which deals with frankness in court, the obligation is to inform the court of matters which are ‘within the solicitor’s knowledge’ (rule 19.4.1) or which the solicitor has ‘reasonable grounds to believe’ would support an argument against granting the relief sought. Here there is no contention and no finding that the Public Trustee’s representatives on 6 December 2017 knew anything or had reasonable grounds to believe anything which was not imparted to the Tribunal below.[27]
[27]Ibid, [11].
Rule 19.4.3 of the ASCR provides:
19. Frankness in court
19.4 A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:
…
19.4.3 the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.
The Public Trustee submits that the matters raised by the representatives of the Public Trustee going to TJR’s competence were not found by the Appeals Tribunal to be baseless. Indeed, the opposite finding was made about the evidence of competency and that was accepted by TJR. The Public Trustee submits that his representatives were not in a position to prevent any relevant finding about any dishonesty or fraud being made by the Member particularly given the Member had already determined their course at the hearing on 6 December 2017.[28]
[28]Ibid, [13]-[14].
The Public Trustee submits that there is no evidence of any particular matter which the representatives of the Public Trustee knew or ought to have known but did not impart to the Tribunal in breach of Part 19 of the ACSR.[29]
[29]Respondent’s Outline – Costs dated 25 February 2020, [15].
The Public Trustee otherwise responds to the contentions of TJR as follows:
(a)TJR does not point to any cogent evidence or finding that the Public Trustee failed to act as a model litigant. That the appeal was ultimately successful does not demonstrate any such failure, particularly given the Public Trustee had not sought the orders made on 6 December 2017. Similarly, the fact that the Public Trustee did not abandon the appeal is not sufficient given that his concerns about the competency of TJR were vindicated. The Public Trustee had an obligation to ensure that matters of competency which may affect the administration of GCB’s estate were ventilated.
(b)The decision made on 6 December 2017 was not made at the request of the Public Trustee. There is no evidence or finding that TJR failed to provide frank submissions to the Tribunal.
(c)As to the financial circumstances of the parties (s 102(3)(e) of the QCAT Act):
(i)      The decision was not made at the behest of the Public Trustee but in circumstances where the Member had already decided to make it. The Public Trustee did not agitate in respect of the critical error found by the Appeals Tribunal, namely there was insufficient basis for a finding of fraud or dishonesty. There was however sufficient basis to make adverse findings about competence.
(ii)      There is no evidence about the financial position of TJR in respect of his costs or what his costs might be.
(iii)     The contention that the Public Trustee has a ‘much greater capacity’ to meet a costs order does not take into account the Public Trustee’s obligations to carry out his statutory functions to provide trustee services (and other services) for many thousands of persons and estates. There is no proper basis to contend that the Public Trustee has unconstrained resources.
(iv) In any event the factors in s 102(3) of the QCAT Act, on balance, would not support the making of a costs order against the Public Trustee even if his resources were relevantly greater than those of TJR (about which there is no cogent evidence).[30]
[30]Respondent’s Outline – Costs dated 25 February 2020, [16].
In its later submission in response to directions made by the Appeal Tribunal, the Public Trustee submits that the decision below was made under s 155 of the GA Act which appears in Chapter 7 of the GA Act. Section 163 of the GA Act provides that an eligible person may appeal.[31]
[31]Respondent’s Supplementary Outline – Costs dated 12 March 2020, [2].
The Public Trustee says as the basis for the appeal appears to be Part 8 Chapter 7 of the GA Act then s 101 of the GA Act provides that s 100 and 102 of the QCAT Act do not apply so that there is no jurisdiction to make an order for costs pursuant to

s 102 of the QCAT Act irrespective of the merits of such an application for costs in any event.[32]
[32]Ibid, [3].
The Public Trustee submits that s 163 of the GA Act does not exclude the operation of the GA Act in relation to appeals. The Public Trustee relies on s 7 of the QCAT Act to submit that where an enabling Act, in this case the GA Act, includes a ‘modifying provision’ relating to the jurisdiction of the QCAT Act that modifying provision is taken to be part of the QCAT Act and prevails over any inconsistent provision of the QCAT Act. The Public Trustee says that in this case s 101 of the GA Act provides that certain provisions of the QCAT Act do not apply in relation to proceedings under this chapter which the Public Trustee says include appeals as they are referred to in Chapter 7. The Public Trustee submits that s 163 of the GA Act does not affect that position and that it allows for appeals under the GA Act to be brought to QCAT and subject to the general provisions governing QCAT and appeals in that Tribunal. The Public Trustee submits it does not confer on QCAT further jurisdiction or otherwise modify what is the clear intention in s 101 of the GA Act. Section 102 of the QCAT Act is expressly excluded.[33]
[33]Respondent’s Outline (Public Trustee) – Costs Reply [2]a.
The Public Trustee submits s 103 of the QCAT Act does apply to appeals to the Appeal Tribunal but it has no relevance in the circumstances of the case. The Public Trustee submits that TJR has failed to identify the representative of the Public Trustee against which any order under s 103 is sought. In addition, citing Gitsham v Suncorp Metway Insurance[34] the Public Trustee submits that cases in which the discretion to order costs against a party’s solicitors have been discussed emphasise the need for caution.
[34][2002] QCA 416, [8].
The Public Trustee submits that as s 102 is expressly excluded from appeals of this kind Parliament has expressly excluded the jurisdiction to make costs orders against a party even where the interests of justice require it. The Public Trustee says that sets a higher standard for exercising any power to award costs under s 103 of the QCAT Act. The Public Trustee relies on Re de Sousa[35] referred to by White J in Gitsham in which French J (as his Honour then was) examined the power to order costs against legal practitioners in a number of jurisdictions and said:
I accept the proposition that the jurisdiction is to be exercised with care and discretion and only in clear cases. The mere fact that litigation fails is plainly no ground for its exercise. There has to be something which amounts to a serious dereliction of duty.[36]
[35]De Sousa v Minister of Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544.
[36]Ibid, [9].
The Public Trustee also relies upon the Tribunal decision of Tracey v Olinderidge[37] where the Tribunal said in relation to section 103:
Mere error by a representative is not sufficient to establish unnecessary disadvantage to another party. Rather, evidence of bad faith, misconduct or an improper purpose by the representative is usually required. Examples are representatives acting without proper authority in commencing proceedings or continuing with manifestly untenable action.[38]
[37][2015] QCAT 7.
[38]Ibid, [17].
The Public Trustee submits there is no evidence or finding of any bad faith, misconduct or improper purpose on behalf of any representative of the Public Trustee.

Submissions of the estate of GCB

We also received a written submission from the Estate of GCB in response to the directions we made. The estate relies on the submissions of the Public Trustee filed 25 February 2020 which have already been set out in these reasons.
The estate submits that the legislature has conferred on the Tribunal a supervisory and protectionary jurisdiction over the appointment of administrators including the power to move of its own volition and provided that only in exceptional circumstances shall the position that each party bear their own costs be departed from. The estate submits that a position where any party other than the appellant is responsible for all or part of his costs is primarily not an order which is open to the Appeal Tribunal having regard to s 127 of the GA Act and further and in the alternative is not the correct or preferable decision or in the interest of justice having regard to the fact that the Tribunal was acting of its own volition.

Which legislative provisions apply in relation to the costs in the appeal?

Consistent with what the Appeal Tribunal said in Mulcahy v Mulcahy, the parties essentially agree that the issue of costs in the appeal falls to be decided in line with

s 127 of the GA Act. In Mulcahy v Mulcahy, the Appeal Tribunal considered the question of whether the costs in an appeal proceeding from a decision made under the GA Act should be governed by s 100 and s 102 of the QCAT Act or s 127 of the GA Act. In that case the Appeal Tribunal said:[39]
Rather, Mr Thomas submitted that the appeal proceeding was a proceeding under the QCAT Act because s 163 refers to ‘a proceeding under the QCAT Act’. There is some textual support for that submission in s 163(2) that non-appellable decisions ‘cannot be appealed under the QCAT Act.’
However, the more natural reading of s 163(1) appears to me to be that the words ‘a proceeding’ relate to the preceding reference to a Tribunal decision, such that it is a Tribunal decision in a proceeding under the GA Act against which an eligible person may appeal. In turn, the words ‘as provided under the QCAT Act’ relate to how an eligible party may appeal against such a decision. That is, an appeal may be brought against a Tribunal decision in a proceeding under the GA Act as – that is to say, in the way – provided under the QCAT Act.
That construction does not make the appeal any less a proceeding under Chapter 7 of the GA Act. Section 163 provides an eligible person with a right of appeal. It is located in Chapter 7 of the GA Act. The appeal is a proceeding provided for in Chapter 7 and is, in my view, correctly described as a proceeding under Chapter 7.
I therefore conclude that this matter falls to be decided by reference to s 127 of the GA Act.
[39]Mulcahy v Mulcahy [2019] QCATA 182, [9]-[12] inclusive.
In Mulcahy v Mulcahy, the Appeal Tribunal said that the discretion to award costs is enlivened when there are exceptional circumstances that warrant a costs order being made and that ‘exceptional’ takes its ordinary meaning.[40]
[40]Ibid, [14].
The Appeal Tribunal found that in considering costs in the appeal, the appeal cannot be considered in a vacuum, devoid of surrounding context.[41] The Appeal Tribunal went on to say:[42]
In that regard, Mr Thomas submitted that attention must be given to (a) the vexatious (I would interpolate here, at least exceptional) nature of the proceedings at first instance; (b) that the appeal represented ‘persistence with failed litigation’; and (c) the relative weakness of the applicant’s case on appeal. I have given weight to the first and third of those considerations in particular. The second of the three considerations I have given less weight to, since it merely states the natural consequence of an unsuccessful appeal.
However, it is also important not to allow considerations relevant to the nature and conduct of the application at first instance to swamp the statutory task of considering whether there are exceptional circumstances that warrant the making of an order for payment of costs in the appeal.
While the original application was found to be vexatious, there is nothing to suggest that Ms Mulcahy’s appeal was vexatious or frivolous. The costs awarded were not insignificant and Ms Mulcahy was entitled to seek leave to test the member’s decision. There is nothing exceptional in a party seeking to appeal an adverse decision, especially where, as here, the decision had at its heart matters of characterisation which it has been observed may readily strike different minds differently. That I concluded that the case on appeal was not strong is not in itself sufficient to characterise the case as exceptional.
[41][2019] QCATA 182, [15].
[42]Ibid, [16]-[18].
We accept the submissions of the parties and the reasoning in Mulcahy v Mulcahy that we must apply s 127 of the GA Act.

Consideration

In this case, in order for the applicant to succeed, TJR must persuade us that we should exercise the discretion in s 103 of the QCAT Act. We must find that the representative of the party rather than the party, is responsible for unnecessarily disadvantaging another party to the proceeding as mentioned in s 102(3)(a) of the QCAT Act. If satisfied that an order under s 103 of the QCAT Act should be made, the order is one requiring the representative to pay a ‘stated amount to the other party as compensation for the unnecessary costs.’[43]
[43]Emphasis added.
The GA Act is protective legislation. The primary focus of the legislation is adults with impaired capacity.[44] A guardianship proceeding is inquisitorial in nature.[45] The processing of applications is managed by the Tribunal including the requirement for a copy of the application to be given to the relevant adult by the Principal Registrar unless very specific and limited circumstances are present in a particular case.[46] GCB’s financial matters were complex. Until the hearing on 6 December 2017, GCB’s financial affairs were administered by both the Public Trustee and TJR. At the time of the hearing on 6 December 2017, the Public Trustee was also an administrator for TJR under a Tribunal order. From that perspective, the Public Trustee had duties and obligations as administrator.
[44]GA Act, s 11A.
[45]PL v PT & Ors [2018] QCATA 114, [37].
[46]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 21.
At the hearing on 6 December 2017 the learned member relied on particular legislative provisions to make the suspension order and postponement order. Section 155 of the GA Act as discussed in the appeal decision, gives the Tribunal a discretion to suspend an administrator. It also gives the Tribunal a discretion to make such an order without complying with other requirements in the GA Act which includes s 118 of the GA Act, the section that provides for the giving of notice of hearing to the adult and others.
In terms of the circumstances listed in s 48(1) of the QCAT Act, while the list is not exhaustive, there is no suggestion that the Public Trustee failed to comply with a tribunal order or direction without reasonable excuse. [47] There is also no suggestion that the Public Trustee asked for an adjournment or caused an adjournment or failed to attend a proceeding without reasonable excuse. [48] Of course, the list is not an exhaustive one.
[47]QCAT Act, s 48(1)(a).
[48]Ibid, s 48(1)(c), (d), (g).
Hearing on 6 December 2017
Taking into account the legal framework set out above and for the reasons that follow, we do not consider that the representatives of the Public Trustee present at the hearing were obliged to caution or remind the learned member about matters of procedural fairness at the hearing on 6 December 2017.
The hearing was attended by an officer of the Public Trustee and a lawyer from the Public Trustee’s Official Solicitor’s office. This was not a case where the Public Trustee had applied to the Tribunal for and/or was seeking particular relief from the Tribunal. The Tribunal arranged the hearing. The Tribunal decided who should be given notice of the hearing.
As was found by us in the appeal, the learned member had already made the decision to suspend TJR as administrator for GCB before he commenced the hearing. We are of the view that the purpose of the hearing was to provide instructions to the Public Trustee as to how the learned member considered the Public Trustee should give effect to the suspension order against the background that the learned member had serious concerns regarding the actions of TJR as administrator for GCB, had not given notice to TJR of the hearing and proceeded to give reasons for the suspension order and a postponement order.
From the outset and throughout the hearing, the learned member raised serious allegations and concerns regarding TJR.[49] The learned member had formed specific views about TJR continuing as administrator for GCB. The learned member used the hearing to instruct the Public Trustee about the actions he wanted the Public Trustee to take under the suspension order and during the postponement period. That was the focus of the hearing. There is nothing before us or evident from the transcript that the Public Trustee had any prior notice of the action the learned member proposed to take either before the hearing or at the commencement of it. The representatives of the Public Trustee did not raise the allegations articulated by the learned member during the course of the hearing nor did either representative argue for specific findings of negligence or breach of duty by TJR nor encourage the course of action proposed by the learned member.
[49]Transcript of proceeding on 6 December 2017, T1-2 to T1-4 (inclusive); T1-5, 28-32; 1-6, 22-46.

In those circumstances, we do not consider that there was anything any representative of the Public Trustee whether solicitor or not was obliged to do or should have done to change the learned member’s course or bring to the attention of the learned member matters relevant to according procedural fairness. We do not consider the lawyer representing the Public Trustee has breached any of the ASCRs nor that the Public Trustee’s representatives failed to conduct themselves as the model litigant. We do not consider that the actions of the representatives of the Public Trustee could satisfy s 48(1)(b), (e) or (f) of the QCAT Act.
We can find nothing in the actions of either officer from the Public Trustee’s office present at the hearing on 6 December 2017 that would support a conclusion that the Public Trustee was responsible for unnecessarily disadvantaging TJR in relation to the making of the suspension order or the postponement order.
Hearing on 14 December 2017
At the hearing on 14 December 2017, the Public Trustee was again represented by a lawyer and another officer. At the time of that hearing, the Public Trustee was the sole administrator for GCB due to the suspension order. The postponement order was also current which meant that the Public Trustee was required to consider and determine when it was appropriate to notify TJR of the suspension order, having received the information in the hearing on 6 December 2017 where the learned member expressed serious concerns about TJR’s actions as administrator and indicated ‘I want all of the records and all of the assets of that business to be secured. I want there to be no communication with [TJR] before any of this occurs’.[50]
[50]Transcript of proceedings on 6 December 2017, T1-2 lines 18-21.
The hearing on 14 December 2017, related to an application filed by the Public Trustee seeking directions from the Tribunal regarding the actions to be taken by the Public Trustee under the suspension order. Under s 138(4) of the GA Act, any administrator who acts under the Tribunal’s directions or recommendations or advice is taken to have complied with the GA Act unless the person knowingly gave the tribunal false or misleading information relevant to the Tribunal’s advice, directions or recommendations. In our view, in lodging the application, the Public Trustee was seeking clear direction from the Tribunal in relation to implementing the suspension order. To the extent the application for directions related to the suspension order the Public Trustee could not give notice to any other person or the Public Trustee would potentially have been in breach of the postponement order or, at the least undermined the purpose of the application for directions and advice. Further, as outlined above, as a starting point, the Principal Registrar has the obligation to provide a copy of any application concerning an adult to the adult and to give written notice of applications to others.[51]
[51]QCAT Rules, rule 21.
We have carefully read the transcript of the proceeding on 14 December 2017. We accept the language used by both the learned member and the representatives of the Public Trustee in their interactions in particular places is not ideal, in particular, the interactions about particular people involved in managing the financial affairs of GCB;[52]and others.[53] In our view, the learned member should have expressed himself using objective language confined to the issues for consideration and determination by him. It seems to us the representatives of the Public Trustee essentially took their lead from the learned member so that while some of their responses were not ideal and could be construed as displaying a level of familiarity, the interactions do not in our view support a finding that any representative of the Public Trustee has breached the ASCRs or model litigant rules. Indeed, we do not consider that anything that occurred at the hearing would support a finding that the representatives of the Public Trustee had breached the ASCRs or that they had not acted as a model litigant. Further, we do not consider that anything that occurred at the hearing would support a finding that the Public Trustee’s actions unnecessarily disadvantaged TJR in a way contemplated by s 48(1)(b), (e) or (f) of the QCAT Act.
[52]Transcript of proceedings on 14 December 2017, T1-9, 15-46; T1-35, 6-46.
[53]Transcript of proceedings on 14 December 2017, T1-31.
The suspension order and postponement order had been made. The Public Trustee was required to act as administrator for GCB for all financial matters. As previously stated, GCB’s financial affairs were complicated. TJR held different roles in the financial affairs of GCB. There was a directorship as well as the role as administrator from which he was suspended. The transcript shows that the representatives of the Public Trustee explained to the tribunal the difficulties in managing the financial matters without essentially ‘tipping off’ any person that might be acting contrary to law in operating any businesses of GCB before evidence of wrongdoing could be seized and secured in circumstances where TJR held various roles and the overall complexity of GCB’s financial affairs. It is unsurprising that, in those circumstances, the Public Trustee might seek direction from the Tribunal. It is also apparent from the transcript that the Public Trustee had not immediately after the hearing on 6 December 2017, taken certain action favoured by the learned member at the earlier hearing. At the hearing on 14 December, the learned member said the Public Trustee ‘needed to actually remove TJR as director’.[54] The Public Trustee’s representatives on the other hand indicated that the Public Trustee had not made a decision to remove TJR as director at that point in time and proceeded to outline the various complexities of establishing what was actually owned by GCB and therefore able to be managed by the Public Trustee as administrator.[55]
[54]Transcript of proceedings on 14 December 2017, T1-28, lines 30-35.
[55]Transcript of proceedings on 14 December 2017, T1-29, T1-30.
We can find no basis for a finding that the representatives of the Public Trustee at the hearing were, or any one of them, was responsible for unnecessarily disadvantaging TJR in relation to the hearing regarding the application for directions and advice filed by the Public Trustee.
The hearing of the stay application
In relation to the hearing of the stay in the appeal. According to the transcript of that proceeding it was relatively short. From a fair reading of the transcript the then President of the Tribunal appeared to have a clear view about whether, at least an interim stay ought to be granted focussing on the issue of the apparent lack of procedural fairness accorded to TJR in the making of the suspension order. At the stay hearing the Public Trustee’s representative explained to the Tribunal some of the ramifications of the stay being granted in response to the Tribunal’s questions. The representative of the Public Trustee explained why it would not be convenient for the stay to be granted including that the Public Trustee had already taken some action to give effect to the order. The written submissions provided by the Public Trustee in response to the application for a stay reflected those concerns, addressed the relevant law applied by the learned member, in particular s 155 of the GA Act and otherwise responded to the application. We do not consider that it was wrong or in breach of the ASCR for the Public Trustee to respond to the stay application as he did. Nor do we consider that the Public Trustee failed to conduct himself appropriately in responding to the stay application in the way he did.
While it might be accepted that the President had a clear view of the matter, for the reasons we already identified in relation to the construction of s 155 of the GA Act, the complexity of GCB’s financial matters, the Public Trustee’s duties and obligations as administrator for GCB at the time of the stay hearing, we cannot find that the representatives of the Public Trustee have acted contrary to the ASCR nor failed to act as a model litigant in relation to the stay application and hearing. The Public Trustee was, at that time, administrator for GCB for all financial matters including legal financial matters. In circumstances where the basis for the suspension order was that the learned member had determined that TJR had breached or likely breached his duties as an administrator, we do not consider that the Public Trustee’s argument opposing the stay could be considered action that unnecessarily disadvantaged TJR. Further and in any event, ultimately, the stay application was swiftly determined. We do not accept that the Public Trustee’s representative was responsible for unnecessarily disadvantaging TJR in relation to the stay proceeding.

The appeal

In relation to the appeal itself, as was said in Mulcahy v Mulcahy, the result was not so clear that it could be said that the representative of the Public Trustee ought to have simply abided the decision of the Appeal Tribunal or conceded the appeal. The Public Trustee was not only the respondent but also the administrator for TJR. It was of assistance to the Tribunal to hear argument from both the applicant and the respondent in the appeal. To our knowledge, there had been no previous decision of the appeal tribunal in relation to the application of s 155 of the GA Act. The applicant was represented by Senior Counsel. For those reasons and for similar reasons to those expressed in relation to the stay proceeding, we do not consider that the representative for the Public Trustee in the appeal proceeding has taken any step or action that would support a finding that they have unnecessarily disadvantaged TJR including as contemplated by s 48(1) of the QCAT Act or otherwise.
Ultimately, in this case, it was not the Public Trustee that was responsible for the error identified by the appeal tribunal but the tribunal itself. In those circumstances, we can find no basis to enliven the discretion in s 103 of the QCAT Act to compensate TJR.

Other matters

Even if we are wrong in relation to s 127 of the GA Act being the operative provision to apply in relation to the costs in the appeal, we do not consider that it would be in the interests of justice to order that the Public Trustee or GCB’s estate pay TJR’s costs. For the reasons already expressed and the desirability of the Appeal Tribunal for appeals of decisions in the Guardianship jurisdiction having the advantage of submissions from a contradictor in the appeal we would not make an order for costs under s 102 of the QCAT Act.
We order that each party bear their own costs in the stay application, application for leave to appeal and application to appeal.