AJB [2013] QCAT 112

CITATION: AJB [2013] QCAT 112 PARTIES: AJB APPLICATION NUMBER: G24484 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: R Joachim, Member DELIVERED ON: 22 February 2013 DELIVERED AT: Brisbane ORDERS MADE: The application for costs is dismissed. CATCHWORDS: GUARDIANSHIP – where lawyers attended at a hearing – where application made for costs. Queensland Civil and Administrative Tribunal Act 2009 - sections 97 and 100 Guardianship and Administration Act 2000 – section 136 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 22 October 2009 AJB executed an Enduring Power of Attorney appointing his nieces LAE and HJM as his attorneys for personal and financial matters to make decisions jointly. This document was witnessed by AJB’s solicitor Mr Edward Skuse. [2] AJB is in his eighties and lives in Nursing Care in south east Queensland. He was admitted there in April 2012. [3] His admission was initiated following falls at home and difficulties with self care. -- 1 of 4 -- 2 [4] AJB had discussions with Mr Skuse about how unhappy he was at the nursing centre. Mr Skuse subsequently arranged for another solicitor Glenys Owen to witness a revocation of his October 2009 EPA. The revocation was executed on 30/6/2012. AJB made no further EPA. [5] It seemed that AJB was concerned his nieces were not agreeable to his returning home. [6] The director of nursing was concerned about AJB’s capacity and applied to QCAT for the appointment of a guardian and an administrator on 4 July 2012. [7] The then former attorney LAE applied to the Tribunal on 10 July 2012 for an order concerning the validity of an Enduring document. [8] The Tribunal heard these applications on 2 August 2012 and determined that the revocation was invalid because AJB did not have capacity to revoke the October 2009 EPA. The Tribunal dismissed the guardianship and administration applications. Directions were issued by the Tribunal to the reinstated attorneys regarding assessments of AJB and costs of home care if appropriate. [9] Mr Skuse was given a notice to attend to give evidence dated 30/7/2012 under section 97 of the QCAT Act. Ms Owen to her credit, attended voluntarily after being requested to by the Tribunal. She acknowledged via facsimile on 30/7/2012 that her role was to give evidence. [10] No leave was granted to either Mr Skuse or Ms Owen to represent AJB. [11] At the conclusion of the hearing Mr Skuse sought his costs along with those of Ms Owen. [12] The lawyers were directed to provide submissions to the Tribunal and the attorneys regarding costs. The attorneys were provided an opportunity to respond. [13] Mr Skuse and Ms Owen provided a detailed statement of costs only with no references to the legislation. [14] The attorneys urged the Tribunal to reject the accounts. [15] The Tribunal sought further information from the lawyers posing 2 questions. [16] Mr Skuse responded below:- You pose 2 questions. 1. Why should reimbursement be ordered? Under the Act we are entitled to allowances as professional/expert witnesses. -- 2 of 4 -- 3 The most analogous provision to our position is that of a Doctor. The employment allowance is the measure. 2. Who should be ordered to pay these allowances? AJB should be the party liable. He both requested and approved our attendance. [17] No amount was quantified for professional/expert witness fees. [18] The Tribunal found these answers unsatisfactory and they did not assist the Tribunal. On 2 November 2012 the Tribunal wrote a detailed letter to the lawyers enclosing the attorney’s submissions and directed the lawyers to the sections of the QCAT Act under which costs orders may or may not be made. [19] The lawyers were invited to make any further submissions within 3 weeks. None were received. [20] Under section 100 of the QCAT Act, each party must bear the party’s costs of the proceeding unless the tribunal orders otherwise. Neither Mr Skuse nor Ms Owen were parties in the proceeding. No order for costs could be made in their favour. As neither Mr Skuse nor Ms Owen had leave to appear as the legal representative of AJB in the proceeding, there is no other basis for them to recover costs from AJB for the hearing. [21] However under section 97 of the QCAT Act persons required to attend a hearing to give evidence are entitled to be paid fees and allowances prescribed under regulation. Part 4 of the QCAT Regulations 2009 provides for allowances for witnesses, professional, non professional and experts. Section 136 of the Guardianship and Administration Act 2000 modifies the QCAT Act and provides that notwithstanding the QCAT Act, a witness is only entitled to fees and expenses if the tribunal makes an order for payment of witness fees. [22] Ms Owen did not attend the hearing under a section 97 notice. She gave evidence as to her role as a certifying witness to the revocation of the EPA. That revocation was found to be invalid due to AJB lacking capacity to revoke that grant of power. It would be unreasonable to make an order requiring AJB to pay Ms Owen witness fees when her actions were directly contributory to the need for an application to be made to QCAT for the appointment of a decision maker for AJB consequent on the revocation of the EPA. [23] Similar considerations are relevant to the claim for witness fees by Mr Skuse who did attend the hearing under a section 97 notice. Mr Skuse facilitated Ms Owen meeting with AJB to revoke the EPA. Mr Skuse’s actions started the course of events that left AJB without an adequate decision making regime and which resulted in the need for an application to be made to QCAT for the appointment of a decision maker for AJB consequent on the revocation of the EPA. -- 3 of 4 -- 4 [24] It would be unreasonable to require AJB to pay witness fees for Mr Skuse to attend at a hearing when the tribunal expects co-operation from all persons interested in AJB to provide information to enable the tribunal to make final orders to meet the decision making needs of a vulnerable person. The tribunal particularly relies on that co-operation from persons who have professional responsibilities to act as officers of the court in the general administration of justice. [25] In refusing to make an order for costs there is also no entitlement for either Mr Skuse or Ms Owen to be paid witness fees by any party in the proceeding. -- 4 of 4 --