Are there special circumstances which justify the making of a costs order?
76The CAT Act gives more guidance to the Tribunal than the costs provisions of the Guardianship Act, in enumerating matters that it may have regard to in determining whether there are circumstances justifying an award of costs. This is an open ended list and includes provision for any other relevant matter to be taken into account.
77The applicant sought to withdraw the applications. The Tribunal, however, is not bound to dismiss applications because the applicant seeks to withdraw them, if there is any perceived threat to the welfare of the subject person which merits the attention of the Tribunal. It has a wide range of a options open to it when applications are made and decided, including in this case, converting the applications for the reviews of the EG and the EPOA to applications for guardianship and financial management respectively. There are orders the Tribunal can make on its own motion. It is not unknown for the Tribunal to decline to dismiss a matter which is sought to be withdrawn because, its protective jurisdiction having been invoked, it considers there are matters it should proceed to consider, in the best interests of the subject person.
78The Tribunal is of the view that it is not necessary to adjudicate each and every issue raised by Mr MBM in order to ascertain whether, as submitted by the costs applicant, Mr MBM's claim has no tenable claim in fact or in law or the proceedings are misconceived or lacking in substance. It is not necessary to make findings in each matter where there was a factual dispute. We cannot now examine and decide the substantive applications - they have been decided by the Tribunal, which concluded there was no evidence to suggest that allowing the status quo to continue in relation to Mrs OLL was in any way a threat to her welfare or not in her best interests. It is, however, necessary to make some observations in relation to the nature of evidence on which the substantive claims of the Applicant were founded.
79The Tribunal is not bound by the rules of evidence. However, it must have regard to the nature of the evidence and information provided to it in determining the weight to be placed on it. It has to rely on the "best" evidence which, as it is mostly prepared and presented by non-legal professionals and/or family members and friends, is sometimes not as good as the Tribunal would like it to be. However, evidence relied on to found a decision has to be credible and tend to prove the facts it claims to support. If it relates to matters in hot and personal dispute it will more likely be credible if it is independently corroborated.
80As a protective jurisdiction, this is not strictly a part/party jurisdiction. However, the applicant must bring credible evidence to the Tribunal to support his or her application. It must support the conclusion that matters are disclosed which merit the attention of the Tribunal. It is not sufficient to raise unsubstantiated allegations and demand that they be answered by the other parties or that other parties provide evidence which will refute the claims. Many of the submissions made on behalf of Mr MBM referred to statements made in his affidavits and argued that, because these were not refuted by Mr QAT or someone else, they must be accepted by the Tribunal. The Tribunal did not agree.
81Mr MBM's applications are accompanied by a large volume of documents - affidavits by him containing reference to incidents which have taken place over years - supported in turn by notes claimed to have been made by him contemporaneously in relation to these incidents, which, he says illustrate his concerns. These documents are all of his own manufacture and the Tribunal found them on the whole to be self-serving. He constructed from these "observations" an evidentiary edifice - which had no foundations other than his own wishes or beliefs, many of which were based in misperceptions. Volume does not necessarily equal substance. Mr QAT or members of the Mrs OLL's family did not have to account to Mr MBM for their actions - nor refute his "evidence."
82That is not to say that none of what he says is to be believed but, in relation to the main allegations he makes and which are central to the success of his applications, his claims are not tenable.
83Mr MBM's claims are not supported by a single witness or any independent evidence. Such independent professional evidence as there was from her service providers and treating doctors, did not support Mr MBM's claims that Mrs OLL was not being adequately cared for and that appropriate decisions were not being made as to her care or medical treatment.
84Mr MBM also claims that Mr QAT had prevented him, Mrs OLL's brother and other friends visiting Mrs OLL. There is no evidence from any other person who claims to have been prevented from visiting Mrs OLL. She has said, through her Separate Representative that she does not consider herself unnecessarily restricted in her current situation. She does not want to change it.
85The Tribunal is entitled to take into account the behaviour of parties in evaluating the credibility of allegations which are not supported by independent corroborative evidence and in determining whether there are "special circumstances."
86Mr QAT says that the security guards were recruited after carers felt threatened by Mr MBM climbing in Mrs OLL's bedroom window. Mr MBM does not deny he did this but says Mrs OLL "directed" him to do it. Mrs OLL is a frail, ill woman in her nineties - the Tribunal does not accept she did "direct" him to climb in her window and her wishes, when expressed through the Separate Representative, that she did not want Mr MBM to visit - would also suggest this was not a credible claim. The home was in any case also Mr QAT's home and Mr MBM was not entitled to access it in this way without Mr QAT's agreement.
87Mr MBM also acknowledges he waited around outside Mrs OLL's family residence and took down the registration details of visitors and carers who came to the house and provided this information to his solicitor. In his submissions and when asked about this at the costs hearing, he said he was entitled to do this to protect himself. He did not acknowledge that this behaviour could be perceived as intimidatory. The Tribunal does not accept that he did not understand this and there is no explanation as to why he might legitimately have needed this information. Mr QAT's submissions characterise this as "stalking" behaviour, designed to intimidate. The Tribunal accepts this conclusion.
88Mr MBM alleges "elder abuse." This consisted of Mr QAT "confiscating" Mrs OLL's bank books, allegedly against her wishes. Mr QAT was his mother's attorney - he was quite entitled to take charge of the bank books and this could hardly be said to be "elder abuse" - an unnecessarily inflammatory (and inaccurate) allegation.
89Mr MBM has brought no evidence to support a claim that Mr QAT had behaved in any untoward way in relation to Mrs OLL's finances. He sought to obtain through these proceedings information to support this claim including information about Mr QAT's own finances. He was not entitled to obtain formation about the financial affairs of any member of the Mrs OLL's family. His misconception in relation to the attorney's duty and his right to information is illustrated by the following paragraph (71) of Mr MBM's submissions
There is no evidence from [Mr QAT] that he fully disclosed to his sisters the financial management of [Mrs OLL's] affairs. There is no evidence that he explained the expenditure of [Mrs OLL's] money as submitted in Paragraph 64 (above).
90Not only has he no way of knowing what Mr QAT has or has not explained to his sisters, and that there appears to be little to "explain" about Mrs OLL's affairs in any case, he is not obliged as attorney, to explain anything to his sisters (there is no evidence they had asked for information or been denied it) or to Mr MBM, just because the latter has brought an application to the Tribunal.
91Mr MBM complains that he was not apprised of Mrs OLL's wishes until the hearing and could not, therefore, withdraw his applications until that time. He said these should have been conveyed at the Directions Hearing on 10 June. The Tribunal rejects that submission. It was not incumbent on the Separate Representative to put information about Mrs OLL's wishes before the Tribunal prior to the hearing. Mr QAT was in possession of the medical and other evidence well prior to the hearing, which should have suggested to him that his claims about her care and medical treatment were misplaced.
92In answer to some of the allegations about his behaviour, Mr MBM has claimed that Mrs OLL asked him to do particular things, indicating, he says, that she preferred him to do these things and provide care for her rather than her family members. When Mrs OLL's wishes were conveyed to the Tribunal, it was clear she did not even want him to visit her and she was very firm in her wish that her family continue to care for her and continue to act as her attorney and guardian. The Tribunal does not believe that Mrs OLL's wishes had changed - they are consistent with the evidence of her family and with her own actions in appointing Mr QAT as decision maker for her as long ago as 1994.
93Mr MBM has painted a picture of Mrs OLL as being a prisoner in her own home, her needs and wishes ignored by her family. If Mr MBM did have a belief that here was a real threat to her welfare in her current situation, why were the applications withdrawn simply on the basis of her "wishes" when she lacks capacity? Mr MBM has seen what he wants to see and believed what he wants to believe, without reference to the real situation or the views of anyone else. Why did he not ascertain Mrs OLL's wishes before he lodged the applications, if they were to be determinative of whether he would pursue them? He says that he did not have the opportunity to gain her views before lodging the application because he was prevented from seeing Mrs OLL. However, if he had a realistic appreciation of her situation, how could he have been so wrong about her real wishes? It appears Mr MBM misperceived these as he did many other features of Mrs OLL's situation.
94 Mr MBM dates his difficulties with Mr QAT from a time when the value of Mrs OLL's property became known. The Tribunal accepts Mr QAT's submission that this was not the case and there is no reason why it should be.
95The evidence suggests to the Tribunal that, whilst Mrs OLL was independent and had full capacity, the adult children of Mrs OLL considered it her business with whom she associated and did not seek to intervene at all in Mr MBM coming to the house. They took the view Mrs OLL was an independent person and she could manage any association with Mr MBM, although there is some evidence to suggest that the other members of the Mrs OLL's family did not like Mr MBM particularly and thought it was their mother's politeness which prevented her discouraging him from coming to the house so often. He says that prior to there being carers involved, he had looked after her whilst Mr QAT was at work. It is more likely that prior to her needing professional care, they kept each other company and that he did do such things as fetching newspapers and driving her to appointments. When she needed care, Mr MBM appears to have assisted and again, Mr QAT did not necessarily consider this a problem.
96However, when she became so frail and unwell that she needed professional care, and became unable to assert herself, Mr MBM refused to accept this and his presence at the house became interfering and intrusive. Mr MBM alleges Mrs OLL was "forced to choose" between his care and that offered by professional carers. He refused to accept that Mrs OLL required the professional care arranged by her family. Even then, Mr QAT tried to ensure Mr MBM could visit his mother (his evidence in relation to the AVO proceedings) but Mr MBM refused to acknowledge Mrs OLL's deterioration and cooperate with the family in the treatment and care arrangements - climbing in the window, harassing the carers who came to the house and making allegations of "elder abuse." It is hardly surprising that the relationship between Mr QAT and Mr MBM deteriorated.
97Mr MBM has an unrealistic perception of his own role in Mrs OLL's life. He had known Mrs OLL for a long time. The Mrs OLL's family had provided accommodation for a period when he had needed it. She had clearly trusted him in certain respects - authorising him for instance to take money from her bank account when she could not get out to do so - and asking him to assist - fetching the newspaper and the like - asking him to drive her to appointments. However, his proposals for guardianship and her care are entirely unrealistic in the circumstances. Her son had been her enduring guardian since 1994. He shared a house with her. Her home was his home. Her other adult children were closely involved in her care. She had been in receipt of professional services in her home since 2011. As far as the Tribunal is aware she wishes to stay in her home as long as possible. Mr MBM now proposes to take over her care himself, either in her home or his, in a situation where he is in dispute with all of her children, including her chosen guardian and attorney, her carers have alleged he has interfered in their care and he is unqualified to provide professional care. This is just fanciful. It has understandably caused considerable alarm and stress amongst Mrs OLL's family members.
98Mr MBM claims a genuine interest in Mrs OLL's welfare. His concerns may be "genuine" in the sense that he believed them to be correct but that does not make them genuine in the sense referred to in the Guardianship Act, which requires more than a sincere "belief," unsupported by credible evidence.
99Four months after proceedings were first initiated and less than two weeks prior to the allocated hearing day, Mr MBM filed a fresh application - an application to review the EPOA, made two and a half years previously. It made the same appointment as the EPOA executed in 1994. There is no explanation as to why this application was filed so late in the day. It had the potential to disadvantage the other parties and derail the proceedings, which had been allocated a hearing date. In the event, the Tribunal did not allow the proceedings to be delayed but the applicant's filing of this new application at such a late stage was not consistent with his duty to conduct the proceedings in a way which would ensure their speedy and efficient disposal, with as little cost to the parties as possible (subsections 60(3)(a), (b) and(f) of the CAT Act).
100Mr MBM alleged incapacity for Mrs OLL to have made the EPOA. Not only was there medical evidence on foot which did not support that claim but it was also contrary to Mr MBM's own allegations. He said that he had been asked or directed by Mrs OLL to do certain things - which he presumably thought she had the capacity to do. His allegation about her bank books being taken by Mr QAT so that she did not know the situation in relation to her financial affairs and that this was "elder abuse" was based on her having capacity at that time (also 2012 when the EPOA was made) to manage her financial affairs (Par 61 Mr MBM's submissions). Mr MBM's claims are contradictory on the issue of Mrs OLL's capacity. Mr MBM again, in this application, sought to obtain by summons, information about Mr and Mrs OLL's financial affairs, which he had been unable to obtain in the proceedings to that point.
101In the words of McHugh J in Lai Quin (supra) these proceedings were not "reasonably commenced." The Tribunal agrees with the costs applicant's submission that, pursuant to s 60(3) of the CAT Act, that the applicant's claims had no tenable basis in fact or law (s 60(3)(c)) and were frivolous or vexatious or otherwise misconceived or lacking in substance (s 60(3)(e), in the sense described by Mr Justice Garling in Hopkins (supra).
102Mrs OLL is elderly and frail. She is at the end of her life. According to all of the professional evidence, she is being appropriately cared for by her family members in a home she shares with them. Mr MBM has been intrusive and inappropriate in seeking to intervene in this situation and to usurp the role of her family. The evidence is that he has caused Mrs OLL's family members considerable stress, in what must already be a stressful situation and a difficult period in all of their lives. They were alarmed by his behaviour and sought to protect their mother from his intrusion into the care arrangements. The bringing and maintaining of these proceedings has been a continuation of this pattern of behaviour on Mr MBM's part.
103The Tribunal has concluded that there are, therefore, "special circumstances" in this matter, having regard to the matters set out in s 60(3) of the CAT Act. Fortunately, it is rare that an applicant comes to the Tribunal with applications so lacking in substance, in the context of intrusive and intimidating behaviour towards the person concerned and his or her family. This is extreme behaviour in these circumstances, which takes "the matter out of the ordinary course of events" and suggests "factors which extend beyond those reasonably connected with the usual or ordinary pursuit of a claim" (Kondos (supra)). Applications of this sort, which are far from being well-motivated and substantial, are to be discouraged.
104The volume and nature of the of material brought by Mr MBM, containing as it did myriad allegations against Mr QAT and the Mrs OLL's family, also made this matter appear more complex and substantial than it really was, and necessitated Mr QAT seeking legal advice and representation with its consequent costs.
105Having determined to make an order for costs on Mr QAT's application, the Tribunal declines to make an order on Mr MBM's application.