Safety in numbers? Not when it comes to costs…

The recent decision of WJ [2021] QCAT 450 is a reminder that the resources practitioners apply to a matter must be proportionate to the task at hand, at least when it comes to costs.

In this case, a daughter with an ‘irregular’ and ‘fragile’ relationship with her father sought the appointment of a guardian for her father based on a perceived lack of capacity.

The daughter’s concerns were founded in aspects of his behaviour, including alleged hoarding behaviour, changing his enduring power of attorney (EPOA), his physical health and alleged undue influence on the part of the father’s siblings and his solicitor.

The daughter represented herself and led no evidence from health professionals which indicated her father lacked capacity, relying largely on her own opinion in that regard. As is often the case with self-represented litigants, the manner in which she conducted her case contributed to its length and increased costs. Not unexpectedly in the circumstances, she was unsuccessful in her application.

Her father sought costs of $409,000, and argued that exceptional circumstances existed that justified the awarding of costs in a guardianship matter. While the Queensland Civil and Administrative Tribunal ultimately agreed that there should be an order for costs, it was highly critical of the fact that the father had been represented by two counsel and a solicitor, in what the tribunal described (at 57) as a “bread and butter” matter with “no novel or complicated issues of law or fact”. The tribunal went on to note (at 59):

“In the Tribunal’s view a competent solicitor could have more than adequately represented WJ. It did not require a team of 3 lawyers which included 2 barristers. The Tribunal finds it extraordinary that WJ has spent almost $410,000 in legal and associated costs. This is unprecedented in our experience in the life of the guardianship legislation in Queensland which began in 2000.”

The tribunal went on to significantly reduce the costs claimed, most prominently in excising counsel costs to the tune of $145,139.61, and the solicitors costs of dealing with counsel in the sum of $13,175.05. As only a portion of the remaining costs were allowed, costs were awarded in the sum of $179,434.35.

This is a significant reduction in the total claimed, and while the client was no doubt warned that he was in a ‘no costs’ jurisdiction, it would be understandable if he were not happy with the outcome.

It is not unusual for clients (especially those of means) to want the security blanket of counsel, and particularly so when significant sums of money are at stake. In such circumstances solicitors need to provide strong and unwavering advice as to whether or not counsel is needed, and what the costs consequences may be if a court decides the engagement of barristers was unjustified.

It is difficult enough to explain to a client why a win cost so much when they have been forewarned; if the first time they understand a significant costs outlay will not be recovered is when the decision is delivered, it is likely the relationship with the client will be irreparably damaged.

Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre.

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