FG [2011] QCAT 178

CITATION: FG [2011] QCAT 178 PARTIES: FG APPLICATION NUMBER: GAA1489-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member S Gardiner, Member DELIVERED ON: 3 May 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Hajnal Black is ordered to pay one half of the costs incurred by The Public Trustee of Queensland and of the Adult Guardian in the application for a non-publication order made by Hajnal Black to be agreed and failing agreement as assessed by a costs assessor to be appointed by the Tribunal. 2. The applications by Hajnal Black filed in the Tribunal on 23 December 2010 are stayed in accordance with section 242 of the Guardianship and Administration Act 2000. CATCHWORDS: COSTS – NON-PUBLICATION ORDER – where application withdrawn at commencement of hearing – where exceptional circumstances exist STAY – section 242 of the Guardianship and Administration Act 2000 – where concurrent proceedings in Supreme Court and the tribunal -- 1 of 5 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Hajnal Black represented by Michael Liddy of Counsel instructed by Robert Bax & Associates THE PUBLIC TRUSTEE OF QUEENSLAND: The Public Trustee of Queensland represented by Anthony Collins of Counsel instructed by the Official Solicitor of The Public Trustee of Queensland THE ADULT GUARDIAN: The Adult Guardian represented by Tim Carmody Senior Counsel instructed by a senior legal officer from the Office of the Adult Guardian REASONS FOR DECISION [1] On 23 December 2010 Hajnal Black lodged an application with the tribunal seeking declarations about the capacity of FG to engage in certain specified actions from 28 July 2009 to 30 October 2009. Mrs Black lodged a further application on that same day seeking certain specified directions from the tribunal to the administrator of FG, authorisation of certain specified conflict transactions and a non-publication order. [2] On 31 January 2011 the tribunal issued a no tice of hearing to the active parties in the applications. The notice informed the active parties that a hearing of the application for a non-publication order would be heard at 10 am on 28 February 2011. [3] At the commencement of the hearing, counsel for Mrs Black informed the tribunal that his client was no longer seeking a non-publication order and sought leave to withdraw that application. Counsel for The Public Trustee of Queensland and for the Adult Guardian applied at the hearing for an order that Mrs Black pay for the costs of those active parties in relation to the hearing of 28 February 2011. [4] The tribunal made directions for Mrs Black and the other active parties to file and serve written submissions about the applications for costs. Submissions have been received from Mrs Black, The Public Trustee of Queensland and the Adult Guardian and have been taken into account by the tribunal. The applications for costs are opposed by Mrs Black. [5] The applications for costs are made under the Guardianship and Administration Act 2000. Under section 127(1) of the Act, each party in a proceeding is to bear their own costs. However, the tribunal can, under section 127(2) of that Act, order an applicant to pay an active party’s costs in exceptional circumstances. Examples of what may constitute exceptional circumstances are given in subsection 2: if the application brought by the applicant is found to be frivolous or vexatious. Nowhere else in the Act is the term “exceptional circumstances” relevantly defined. -- 2 of 5 -- 3 [6] For the reasons set out in paragraphs 6 to 14 of these reasons, t he tribunal finds that there are exceptional circumstances in this case on which to base an order for costs against Mrs Black. She had received over three weeks notice of the date for the hearing of the application for a non-publication order. The notice she received clearly stated that the Adult Guardian and The Public Trustee of Queensland were required to attend the hearing on 28 February 2011. [7] Mrs Black should reasonably have expected that those active parties would attend the hearing and would oppose her application for a non-publication order. Mrs Black had previously in May 2010 made an application to the tribunal for a non-publication order in this proceeding. Both The Public Trustee of Queensland and the Adult Guardian acted as contradictors to that earlier application for a non-publication order. It would have been reasonable to expect that those active parties would take an identical position in 2011 with respect to a fresh application by Mrs Black for a non-publication order. [8] The tribunal refused to make a non-publication order in May 2010 and gave oral reasons in Mrs Black’s presence for refusing to make such an order. Despite having over three weeks notice of the hearing, Mrs Black, with the knowledge of the factors that the tribunal had taken into account in May 2010, did not file any evidence or submissions in support of her application for a non-publication order. [9] There is no evidence that Mrs Black intended to adduce any documented factual material at the hearing to support her application for a non-publication order. She did not do so on 28 February 2011 when faced with the costs applications and she has not subsequently done so when directed to provide evidence on affidavit in response to the costs applications. [10] In the opinion of the tribunal it is reasonable to conclude that Mrs Black had not intended to provide any objective and documented evidence to satisfy the requirement in section 108 of the Guardianship and Administration Act 2000 that a non-publication order was necessary to avoid serious harm or injustice to a person. Without evidence of serious harm or injustice to a person, her application was likely to fail. Her own oral evidence, if given only at the hearing, would be unlikely to have been sufficient to successfully support the making of a non-publication order if the person to be protected from harm or injustice was, as has been contended by Mrs Black, a person other than herself. [11] Mrs Black had more than three weeks before the hearing on 28 February 2011 in which to obtain legal advice and to consider her position with respect to the application for a non-publication order. According to her affidavit evidence, she decided not to proceed with that application on the Saturday before the hearing date, 26 February 2011. She gave less than an hour’s notice to the active parties that she would not proceed with her application for a non-publication order. The tribunal was unaware of that position until the commencement of the hearing itself. [12] The tribunal, particularly in guardianship proceedings, acts with as little formality and technicality as the proper consideration of the matters before it -- 3 of 5 -- 4 permits.1 The tribunal does give applicants in guardianship proceedings considerable latitude in the manner in which they proceed through the hearing process. However, the tribunal must act fairly in all proceedings.2 [13] In the opinion of the tribunal it is not fair to the Adult Guardian and to The Public Trustee of Queensland to make them bear fully their costs of appearing at the hearing on 28 February 2011 when Mrs Black gave less than an hour’s notice that she would not be proceeding with her application that was to be considered at that hearing. The tribunal is satisfied that Mrs Black would have reasonably expected that her application was opposed and that the active parties would incur costs in appearing as contradictors to that application. [14] A costs order is not made to penalise Mrs Black for bringing her application but to reimburse the expense incurred by the active parties in responding to that application. It is fair that the active parties are reimbursed in this case in view of the finding made by the tribunal that the following exceptional circumstances were present in this case in terms of section 127(2) of the Guardianship and Administration Act 2000: the applicant should have had a reasonable expectation that the active parties would attend the hearing and oppose the non-publication application, the applicant did not provide any objective evidence in support of the application such that in the absence of evidence the non-publication application was likely to fail and the effective lack of notice prior to the commencement of the hearing that the application would be withdrawn. [15] In considering how the costs to be paid by Mrs Black are to be quantified, the fact that the tribunal on 28 February 2011 did consider and make a confidentiality order in favour of the Adult Guardian in addition to dealing with the non-publication application must be taken into account. In addition, the tribunal on its own initiative raised the issue of whether section 242 of the Guardianship and Administration Act 2000 should result in the tribunal proceeding being stayed in view of concurrent proceedings in the Supreme Court between Mrs Black and The Public Trustee of Queensland. Raising that latter issue on 28 February 2011 saved the parties the cost of coming back on a later date to argue that issue. [16] Taking these matters into consideration, as the hearing on 28 February 2011 dealt with more than the non-publication application, Mrs Black should not be required to pay all of the costs incurred for that day by the other active parties. It is the tribunal’s view that fairness should result in only one half of the costs incurred by the Adult Guardian and The Public Trustee of Queensland with respect to the non-publication application being paid by Mrs Black. In the event that the parties cannot agree on the quantum of costs to be paid by Mrs Black, the tribunal will require the costs to be assessed under the rules of the tribunal by a costs assessor appointed by the tribunal. [17] Turning now to section 242 of the Act, this section provides that if there are concurrent proceedings in the Supreme Court and the tribunal about an enduring document or attorneys under an enduring document, the tribunal 1 Section 28(3)(d) of the Queensland Civil and Administrative Tribunal Act 2009. 2 Section 28(2) of the Queensland Civil and Administrative Tribunal Act 2009. -- 4 of 5 -- 5 must stay the tribunal proceeding. The tribunal has been provided with a copy of a claim and statement of claim in action number 13246 of 2010 commenced in the Supreme Court by The Public Trustee of Queensland as administrator for FG against Mrs Black as the former attorney for FG. [18] The Supreme Court proceeding is current and is about certain actions taken by Mrs Black when she was the attorney for FG. Although there are other issues involved in the Supreme Court proceedings that are about the actions of FG, the tribunal is satisfied that the current Supreme Court proceeding is about the attorney under an enduring document and the current proceeding in the tribunal is also about the same attorney under the same enduring document. [19] In accordance with the provisions of section 242, the application by Mrs Black filed in the tribunal about the enduring document and about her actions as attorney for FG must be stayed. The Court may at some stage decide to refer specific questions about the capacity of FG back to the tribunal under section 241 of the Guardianship and Administration Act 2000 and if so, the tribunal would be able to make those specific determinations as section 242 would in those circumstances no longer prevent the tribunal considering those matters. -- 5 of 5 --