BDO v Public Guardian (No 2)

[2016] NSWCATAD 89

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BDO v Public Guardian (No 2) [2016] NSWCATAD 89
Hearing dates:	21 January 2016
Date of orders:	12 May 2016
Decision date:	12 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	The application for an order of costs is refused.
Catchwords:	COSTS – application to review accommodation decision by Public Guardian – s88 Administrative Decisions Tribunal Act 1997 applies - whether fair to award costs – costs order refused.
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Legal Professions Act 2004 (NSW).
Cases Cited:	AT v NSW Commissioner of Police [2010] NSWCA 131 BDO v Public Guardian [20150 NSWCATAD 152 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 CCR v PS (No 2) (1986) 6 NSWLR 622 Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130 Snelgrove v Swindells [2007] NSWSC 868 M v M [2013] NSWSC 1495 Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273. OLL [2014] NSWCATGD 40 Trad v Jones (No 8) [2015] NSWCATAD 64
Category:	Costs
Parties:	BDO (Father of person under guardianship) (Father) CBY (Mother of person under guardianship) (Joined party) Public Guardian (Respondent) B Ramjan (Guardian ad Litem)
Representation:	Counsel: G Jauncey (Father) G Moore (Respondent) M Higgins (for the Guardian ad Litem)   Solicitors: Ellie Rahme & Associates (Father) Crown Solicitors Office (Respondent) Rowley & Associates (Guardian ad Litem) CBY (Joined party in person)
File Number(s):	133374
Publication restriction:	Section 126 of the Administrative Decisions Tribunal Act 1997 applies.

REASONS FOR DECISION

Introduction

1. This is an application for an order of costs to be made against the Public Guardian. The application follows my decision to set aside a decision made by the Public Guardian in relation to the accommodation of a young disabled man under its guardianship. In order to maintain his privacy, and in accordance with the publication restriction that applies in this matter, I will refer to the man simply as ‘the son’.

2. The son was disabled as a result of a work injury in 2002. In 2008, following lengthy court proceedings, the son, who lives in NSW, was awarded in excess of $15 million by way of damages. In 2013, a decision was made by the Public Guardian (and confirmed on internal review) that the son should instead be accommodated in the United States of America (‘USA’) with his mother, who has been provided with the anonymisation CBY and who, in this decision, will be referred to as ‘the mother’.

3. The father, who has been given the anonymisation BDO and who will be referred to as ‘the father’ had put forward an alternative proposal that the son remain living in Australia. On 17 December 2013, the father applied to the Administrative Decisions Tribunal (NSW) for a review of the decision to have the son accommodated in the USA with his mother.

4. The Administrative Decisions Tribunal was abolished when this tribunal, the NSW Civil and Administrative Tribunal (‘the Tribunal’) was established on 1 January 2014. By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 No 2, these proceedings are now proceedings before the Tribunal.

5. The mother was subsequently joined as a party to the proceedings and a Guardian ad Litem, Ms Ramjan, was appointed to represent the son’s interests.

6. On 17 July 2015, I set aside the decision of the Public Guardian that the son be accommodated in the USA under the care of his mother. At the time of this decision, the son was being accommodated in a residential facility. In substitution for the Public Guardian’s decision that the son be accommodated in the USA with his mother, I ordered that the son be accommodated in Australia in a purpose-built home to include self-contained quarters for the father, with a separate entrance, and self-contained quarters for the mother, with a separate entrance. I also ordered that services for the son be provided by an external care agency and include a care co-ordinator, who is unrelated to the son, to liaise with the mother and the father.

7. In the course of a lengthy decision, my findings included those listed below:

• that, on the basis of expert evidence provided in the proceedings, it is impossible to know whether the son understands the consequences of answers he gives in relation to his accommodation and his residence. On this basis, I found that any apparent wishes by the son in relation to where he should live and with whom he lives should not be taken into account. This included DVD and transcript evidence provided by the Guardian ad Litem;

• that, prior to his accident, the son, a US citizen, had wished to have the option to live in Australia and had developed a relationship with his extended family in Australia;

• that the accommodation proposal put forward by the father was financially viable;

• that there were concerns with the financial viability of the mother’s proposal, in light of the following uncertainties: the son’s access to private health insurance in the USA; the costs associated with the establishment of a Special Needs Trust to enable the son to access Medicaid; the son’s tax liability as a US citizen living in the USA; the son’s life expectancy;

• that the son enjoys a close and loving relationship with both his mother and his father, and that his stepfather is in regular contact with him;

• that the son enjoys a close relationship with his extended family in Australia;

• that the father has behaved in an aggressive manner towards his son’s carers and that this behaviour often arose after the father had been drinking;

• that the mother’s behaviour towards staff was not similarly problematic;

• that complaints by the mother and father about the inadequate care provided to the son by Global were not unfounded; and

• that the behaviour of the father and his partner towards the mother was inappropriate, and (verbally) abusive.

8. The father has now made application to the Tribunal to make an order of costs against the Public Guardian (but not against the mother or the Guardian ad Litem). The Guardian ad Litem has made a separate application for costs against the Public Guardian. The applications by the father and by the Guardian ad Litem will be considered together in this decision.

9. The Public Guardian is of the view that it would not be appropriate for the Tribunal to allow either cost application.

10. The mother was invited to make submissions in respect of the application but did not do so.

Legal principles

11. The NSW Civil and Administrative Tribunal has, and may exercise, all the functions the Administrative Decisions Tribunal previously had. The applicable legislation is that which would have applied if the Civil and Administrative Tribunal Act had not been enacted. Consequently, the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) as in force at 31 December 2013 applies to this matter. (cl 7(3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013; Trad v Jones (No 8) [2015] NSWCATAD 64).

12. Section 88 of the ADT Act provides as a general rule that each party will bear their own costs. Section 88(1A) then provides that the Tribunal may exercise its discretion to award costs 'but only if it is satisfied that it is fair to do so' having regard to the following factors:

(a)  whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii)  asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv)  causing an adjournment, or

(v)  attempting to deceive another party or the Tribunal, or

(vi)  vexatiously conducting the proceedings,

(b)  whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)  the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d)  the nature and complexity of the proceedings,

(e)  any other matter that the Tribunal considers relevant.

13. The NSW Court of Appeal considered s 88 in AT v NSW Commissioner of Police [2010] NSWCA 131 at [33], holding that, although a costs order could be made only if the relevant criterion in s 88 was satisfied, the phrase ‘fair to do so’ imposes ‘a relatively low hurdle for an applicant seeking an order’ under s 88. The Court held that 'the criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party.' The Court noted that other factors will bear on the Tribunal's discretion whether to award costs, including "the nature of the jurisdiction of the Tribunal which is invoked" (at [33]).

14. In that regard, the NSW Supreme Court has noted that while a costs order is not the usual course in the guardianship jurisdiction, the appropriate question for costs in the jurisdiction is "what order is proper to be made": Snelgrove v Swindells [2007] NSWSC 868.

15. In the recent decision of OLL [2014] NSWCATGD 40, it was noted that while it was not usual for a costs order to be made in the guardianship jurisdiction it:

" ... was well recognised in a series of cases that the Tribunal's protective jurisdiction [referring to the Guardianship Tribunal] required that people should not be discouraged from bringing substantial and well-motivated applications to the Tribunal for fear of a costs order." [at 44]

16. It has been noted that the replacement to s 88 of the ADT Act, namely s 60 of the Civil and Administrative Tribunal Act (which provides for "special circumstances" as the basis for an award of costs), is more narrowly framed and sets a higher bar for the making a costs order: Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130, [16].

17. CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 (24 December 2014) Lindsey J made general comments as to the issue of costs in matter arising out of proceedings initiated in the Children's Court:

The Court's approach to orders for costs in proceedings which invoke its protective jurisdiction is different from that which applies in ordinary civil litigation. [at 28].

18. The ordinary rule in protective proceedings is that the Court may exercise its discretion as to costs, not by reference to a rule that costs follow the event, but having regard to what, in all the circumstances, seems proper: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 at [50]. Not uncommonly, each party is left to bear its, his or her own costs.

19. In exercising functions under the Guardianship Act 1987 (NSW) (‘Guardianship Act’) with respect to person who have disabilities, the Tribunal must observe the following principles set out in section 4 of the Act:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

Issues

20. In determining this application, the following issues are to be considered in accordance with s88 of the ADT Act:

•  whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings (s88(1A)(a));

•  whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings (s88(1A)(b));

• the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law (s88(1A)(c));

•  the nature and complexity of the proceedings, (s88(1A)(d)); and

• any other matter that the Tribunal considers relevant. (s88(1A)(e))

FINDINGS And Reasons

Preliminary matters

21. In this application by the father and the Guardian ad Litem that costs be awarded against the Public Guardian, there is no dispute between the parties that the son, as the subject person, is a party to these proceedings and that the Guardian ad Litem has been engaged to give him a voice in the proceedings.

22. The Public Guardian advised the Tribunal that it has been unable to locate any proceeding where the Public Guardian has been ordered to pay the costs of another party. According to the Public Guardian, an application for costs in proceedings of this kind is unusual and, if successful, would have a ‘chilling effect’ on the exercise of the Public Guardian's statutory functions under Part 7 of the Guardianship Act. An award of costs against the Public Guardian in these proceedings would, the Tribunal was advised, have significant consequences for the capacity of the Public Guardian, as an administrator, to assist the Tribunal in administrative reviews of its decisions in future. If such an order were to be made, the Public Guardian submitted that it would be unlikely to actively participate in Tribunal proceedings concerning its decisions in future.

Whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings (s88(1A)(a))

23. This issue must be seen in the context of the length and complexity of the proceedings in this case. There is no dispute between the parties that the Tribunal proceedings were protracted and involved a number of complex issues. The hearing proceeded over twenty-two days and included seventeen witnesses. The range of evidence provided by the witnesses was wide. There were many documents to consider, comprising close to 2000 folios of material.

The father’s submission

24. It is common ground that having earlier placed weight on the wishes of the son, the Public Guardian subsequently conceded that there could be no such reliance upon the views of the son.

25. It is the father’s submission that by initially placing weight on an issue that was later dropped, the Public Guardian conducted proceedings in a way that disadvantaged the other parties.

Guardian ad Litem’s submission

26. The Guardian ad Litem holds the Public Guardian largely responsible for the length of the proceedings, particularly in its response to the initial failure of Global Health Pty Ltd (‘Global’) to provide relevant documents (‘the Global documents’) in response to a summons by the Tribunal. It is the Guardian ad Litem’s submission that the Global documents were relevant to the accommodation decision because of the history of complaints made by Global in relation to the father’s behaviour, and the extent to which his behaviour allegedly disrupted the delivery of care services to the son. For this reason, the Guardian ad Litem submits that the Global documents should have been provided by the Public Guardian at the outset (rather than relying on Global responding to a Tribunal summons.)

27. It is undisputed that a summary of the Global complaints was used by the Public Guardian to make a finding that the father had been aggressive towards care providers and was therefore relevant to the decision on internal review that the son be accommodated in the USA with his mother. It is also undisputed that the Public Guardian later located electronic files contained documents from Global in relation to the son and that the Guardian ad Litem asked to scrutinise the documents. The Guardian ad Litem submits that the failure to produce the Global documents at the outset was disadvantageous to the son and shows a failure by the Public Guardian to perform its duty as a model litigant. This, the Guardian ad Litem, submits is a relevant consideration as to whether the Tribunal should exercise its discretion to award costs: Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273.

28. The Guardian ad Litem further submits that the Public Guardian’s reluctance and delay in abandoning that part of its case reliant on the documents presumed to be in Global's possession amounts to a ‘relevant delinquency’.

Public Guardian’s response

29. According to the Public Guardian, the acceptance by both the father and the Guardian ad Litem that these proceedings were protracted and raised a "number of complex issues" is an acknowledgement that the questions to be resolved in these proceedings were of substance. Underlying that acknowledgment, the Public Guardian submits, is the implicit acceptance that there was some merit in the Public Guardian's initial accommodation decision, confirmed on internal review.

30. In his submissions, Counsel for the Public Guardian provides a chronology of events relevant to the eventual provision of the Global documents, which includes details of:

• the Public Guardian’s correspondence with Global in relation to its failure to produce documents in answer to the Tribunal’s summons;

• enquiries made by the solicitors for the Public Guardian with the Supreme Court in an effort to locate the Global documents;

• contact between Global and the solicitors for the Public Guardian following the location of relevant material by Global, and the Public Guardian’s subsequent provision of the documents to the other parties;

• the Public Guardian’s perusal of its own electronic material relating to Global, which did not form part of the original s58 material, to gauge its relevance to the proceedings and its subsequent provision to the other parties as a matter of fairness;

• the work of its solicitors in compiling a tender bundle containing the material provided by Global pursuant to summons and the supplementary material included by the Public Guardian;

• the work of its solicitors in compiling an indexed tender bundle including the Global documents, other material produced under summons issued to other bodies and additional documents that the Public Guardian considered relevant.

31. According to the Public Guardian, it does not follow that because the matter was complex and required the Tribunal to resolve a number of complex issues, it would therefore be "fair" to award costs against the Public Guardian. Rather, the Public Guardian submits, the factual complexity of this matter, which is accepted by all parties, is a significant factor weighing against awarding costs to any party in these proceedings.

32. According to the Public Guardian, the father conducted the proceedings in a way that unnecessarily disadvantaged the Public Guardian by causing an adjournment on 28 March 2014 following the father’s late application for a Guardian ad Litem to be appointed for the son, without giving prior notice to the Public Guardian of his intention to make such an application. The Tribunal allowed the application, which was opposed by the Public Guardian, and the matter was then adjourned to allow for the appointment of a Guardian ad Litem. This, the Public Guardian submitted, caused a significant disadvantage given that the Public Guardian had arranged for several witnesses to be available for cross-examination that day.

33. In relation to the father’s submission that the Public Guardian unnecessarily disadvantaged the other parties in delaying the concession that no weight should be placed on the son’s wishes, the Public Guardian notes that both the Public Guardian and the Tribunal had a duty to observe the principle that the views of a person with a disability in relation to the exercise of those functions should be taken into consideration, and that the parties had agreed, from the outset, that one issue was the identification and depth of the son’s wishes.

Tribunal finding

34. I am not satisfied that the Public Guardian conducted the proceedings in this case in a way that unnecessarily disadvantaged another party to the proceedings.

35. The legal representatives for the Public Guardian were, at all times, organised, efficient and unfailingly helpful to the Tribunal. They complied with all orders and directions of the Tribunal; they complied with the relevant legislation and were neither deceptive nor vexatious in their conduct of the matter before the Tribunal. Throughout proceedings that were difficult and lengthy and emotionally demanding, the legal representatives of the Public Guardian continued to adhere to their responsibilities as model litigant.

36. The father has submitted that the Public Guardian unnecessarily disadvantaged the parties by initially placing weight on the son’s wishes before conceding that there could be no such reliance placed upon the views of the son. I do not accept this submission. One of the issues identified and agreed on by the parties was the issues of the son’s wishes. This was an issue that had to be considered by the Tribunal in accordance with s4 of the Guardianship Act and so was correctly raised in the proceedings. Only once the relevant expert evidence had been provided to the Tribunal was the Public Guardian in a position to concede that reliance should not be placed on the son’s wishes. The Public Guardian quickly and appropriately made the requested concession.

37. The Guardian ad Litem has submitted that the Public Guardian unnecessarily disadvantaged the other parties by failing to provide its electronic file in relation to Global at the outset. I do not accept this submission. The evidence before the Tribunal is that in its original decision and on review, the Public Guardian considered not the primary documents of Global but rather a summary prepared by Global in relation to the son’s care. Only later in the proceedings was the question of the relevance of Global’s primary documents raised.

38. On the evidence before me, I accept that the difficulties in gaining the requested documents from Global prompted a search by the legal representatives for Public Guardian for the material. I accept that when the Public Guardian located documents pertaining to Global that appeared relevant to the proceedings and of assistance to the other parties, the Public Guardian ensured the documents were provided to all parties.

39. With the benefit of hindsight, it would have been helpful to the Tribunal and to the parties to have had access to this material earlier in the proceedings. It is, however, important, to bear in mind that these are review, not judicial, proceedings where, in accordance with section 3 of the ADT Act, the role of the Tribunal is to determine matters in an effective, efficient, informal and expeditious manner. The document summarising the care given to the son by Global, as used by the Public Guardian in its accommodation decision, was provided to the Tribunal in accordance with the s58 material. It is not the job of he Public Guardian to inundate the Tribunal and the other parties – who are, in this jurisdiction, often unrepresented – with reams of material that may not be relevant to the proceedings.

40. It was, however, appropriate for further material to be requested on the basis that it might be relevant to one of the agreed issues in the matter. When Global initially proved unhelpful in the provision of this material, the Public Guardian correctly made enquiries to assist the parties and the Tribunal in this regard. In the circumstances of the case, I am not satisfied that the other parties were unnecessarily disadvantaged by the conduct of the Public Guardian in relation to the provision of the original Global documents.

Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings

41. It is not disputed that the proceedings in this matter were lengthy and required twenty-two hearing days over many months.

Guardian ad Litem’s submission

42. The Guardian ad Litem places substantial blame for the length of the proceedings on the Public Guardian's conduct, particularly in relation to the failure of Global to provide relevant documents in a timely manner.

43. The Guardian ad Litem also contends that there was a continued delay by the Public Guardian’s legal representatives in determining which Global documents were relevant, and then in producing those documents to all parties to consider their probative value. The Guardian ad Litem submits that this increased the number of interlocutory hearings and delayed consideration of the disputed issues in the proceedings.

Public Guardian’s response

44. The Public Guardian denies that it should be held responsible for the failure of Global to provide the requested documents and relies, in its submissions, on its chronology of steps taken to assist with the provision of the requested material.

45. In relation to delays generally in the proceedings, the Public Guardian submits that several of the delays in the proceedings were the father’s fault. In particular, the Public Guardian cites:

• the father’s unsuccessful application on 2 July 2014 to prevent the Public Guardian from taking an active role in the proceedings; and

• the father’s successful application for the appointment of a Guardian ad Litem in this matter, but which was made without giving prior notice to the Public Guardian and which was opposed by the Public Guardian on the basis of the delay it would cause.

46. The Public Guardian further submits that the Guardian ad Litem unnecessarily prolonged the time taken to conduct the proceedings by:

• relying on a video interview with the son which was dismissed by the Tribunal as having no weight;

• extensive cross-examination of witnesses; and

• its failure to file evidence in a timely manner.

The father’s submission

47. The father denied unnecessarily prolonging the proceedings by making an application to restrict the role of the Public Guardian, submitting that it was an appropriate application to make in the circumstances of the matter and that it did not occasion a lengthy adjournment of the proceedings.

Tribunal’s finding

48. On the evidence before me, I am not satisfied that the Public Guardian was responsible for prolonging unreasonably the time taken to complete the proceedings. Counsel for the Public Guardian was well-prepared for the proceedings; he examined witnesses effectively and in an organised manner and adhered to any timetables set in the proceedings.

49. The Public Guardian cannot be held responsible for any delays in receiving Global documents pursuant to the summons. Indeed, the Public Guardian’s assistance in preparing an indexed tender bundle made the proceedings more efficient.

50. I accept that the proceedings were prolonged by extensive cross-examination by Counsel for the Guardian ad Litem. For the most part, this cross-examination was of assistance to the Tribunal but at times, as set out in the Public Guardian’s submissions, became overly tenacious. I accept that the father’s failure to advise the Public Guardian in a timely manner of his intention to apply to the Tribunal for the appointment of a Guardian ad Litem prolonged the proceedings before the Tribunal.

51. On the evidence before it, I am not satisfied that the Public Guardian was responsible for prolonging unreasonably the time taken to complete the proceedings.

Relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law: s. 88(1 A)(c)

52. In considering the relative strengths of the claims made by each of the parties, three issues were highlighted: the son’s wishes; the financial viability of the accommodation proposals and the father’s ability to deal with care providers.

The son’s wishes

53. It is not disputed that the Public Guardian, together with all the other parties to the proceedings, made the concession to accept that the son's cognitive functioning was such that he could not appreciate the consequences of his decisions. On this basis, it was agreed between the parties that no submission would be made that the decision should or could be upheld on the basis of the son's wishes.

The father’s submission

54. The father submits that, at the time of making its accommodation decision, the Public Guardian had evidence that the son could not appreciate the consequences of his decisions. This included the medical evidence of Dr Browne, the 2008 Supreme Court decision in relation to the son and other reports of professionals in the possession of the Public Guardian.

Guardian ad Litem’s submission

55. According to the Guardian ad Litem, there was no evidence before the Tribunal that the son’s cognitive function could be assessed to determine the extent to which he could understand the choices regarding his potential living situation. On this basis, the Guardian ad Litem submits that the clams made by the Public Guardian that the son’s ability to communicate his choice was objectively verifiable through its methodology were without factual basis.

Public Guardian’s response

56. According to the Public Guardian, the Guardian ad Litem’s claims against the Public Guardian in relation to the son’s wishes are undermined by the Guardian ad Litem's own reliance on evidence of the son's wishes, which was dismissed by the Tribunal as having no weight.

57. The Public Guardian notes that, in any event, both the Public Guardian and the Tribunal had a duty to observe the principle that the views of a person with a disability in relation to the exercise of those functions should be taken into consideration, in accordance with subsection 4(d) of the Guardianship Act. Furthermore, the parties had agreed from the outset that a relevant issue to be determined by the Tribunal was the identification and depth of the son’s wishes.

58. In relation to the father’s complaint that the Public Guardian delayed its concession that no weight could be placed upon the wishes of the son, the Public Guardian submits that it responded promptly to the request for the concession.

Tribunal’s finding

59. I am not satisfied that costs should be awarded against the Public Guardian on the basis that it made a claim in relation to the son’s wishes that had no tenable basis in fact or law. As a model litigant, the Public Guardian has an obligation to assist the Tribunal to reach the correct and preferable decision. Section 4 of the Guardianship Act provides that the Tribunal must, in exercising functions under the Act with respect to persons with disabilities, observe, amongst others, the following principle: that the views of such persons in relation to the exercise of those functions should be taken into consideration. It was therefore necessary for evidence to be given of the son’s ability, or lack of ability to provide a view in relation to his own accommodation. Indeed, the Guardian ad Litem itself sought to rely on the son’s views by way of a video recording. I benefited from a consideration of the evidence and from the subsequent agreement by the parties, in light of the evidence before me, that no weight should be given to the son’s view.

Financial viability

60. One of the issues to be considered by the Tribunal was whether the accommodation proposals put forward by the father and the mother were financially viable.

The father’s submission

61. It is the father’s submission that the Public Guardian did not adequately consider the financial viability of its proposal to accommodate the son in the USA. In particular, the father submits that, despite having the material available to it, the Public Guardian failed to adequately consider:

• possible fluctuations in the exchange rate between the Australian dollar and the US dollar;

• the uncertainty as to the son’s eligibility for private insurance;

• the fees associated with the possible establishment of a special needs trust to enable the son to be eligible for Medicaid.

Guardian ad Litem’s submission

62. It is the submission of the Guardian ad Litem that the Tribunal’s substantive decision shows that the Public Guardian’s claim of the financial viability of the proposal that the son be accommodated with his mother in the USA was ‘very weakly supported on the evidence.’

Public Guardian’s response

63. While the Public Guardian accepts the Tribunal’s finding that there were concerns regarding the financial viability of the mother's proposal, it is the Public Guardian’s view that the Guardian ad Litem's submissions do not reflect the significant evidence that the Public Guardian put before the Tribunal in support of the financial viability of the proposal. The Public Guardian's claims were supported by:

• oral and documentary evidence from the NSW Trustee and Guardian regarding the financial viability of the mother's accommodation proposal (which was updated throughout the proceedings);

• expert evidence regarding the taxation consequences of the son being accommodated in the USA; and

• expert evidence regarding the operation of US Medicaid and US Medicare, which was also supplemented throughout the proceedings.

The Tribunal’s finding

64. In my substantive decision in this matter, I expressed concerns as to the financial viability of the Public Guardian’s proposal that the son be accommodated with his mother in USA. My concerns arose in light of possible fluctuations in the exchange rate, the uncertainty as to the son’s eligibility for private insurance and the fees associated with the possible establishment of a special needs trust to enable the son to be eligible for Medicaid. On the evidence, I found the father’s proposal to be more viable and less likely to lead to a depletion of the son’s financial assets prior to his death and thereby leave him without adequate care. I did not find that the Public Guardian’s proposal had no tenable basis in fact or law. My findings were simply that in weighing the two proposals, I had fewer concerns about the financial viability of the father’s proposal than I did about the Public Guardian (and mother’s) proposal. Both proposals merited the consideration they were given in the proceedings and all parties provided information that was of assistance to me.

65. In particular, the Public Guardian ensured that the financial information provided was updated throughout the proceedings thereby adhering to its duty, as model litigant, to assist the Tribunal to reach the correct and preferable decision in this difficult matter. The fact that I found that the father’s proposal was more financially viable does not mean that the Public Guardian’s (and mother’s) had no tenable basis in fact or law nor that it should be used to support an application for costs against the Public Guardian.

The father’s ability to deal with care providers

66. Allegations of, and explanations for, aggressive behaviour displayed by the father towards care providers and the mother were explored in the Tribunal proceedings.

The father’s submission

67. Although there was evidence of difficulties experienced by Global care providers in working with the father, it is the father’s view that ‘the relationship between the father, mother and the care providers was much more nuanced and needed greater examination than had been exhibited by the Public Guardian in its original decision.’

Guardian ad Litem submission

68. According to the Guardian ad Litem, the allegations of the aggressive behaviour of the father towards the Global care providers should be considered in the light of the countervailing evidence that this aggression was perhaps justified due to the poor quality of care being given to the son by Global. The Guardian ad Litem submitted that these allegations should also be considered in the context of the evidence of Mr Nick Polimonakis of Drake Medox Nursing Agency who:

• described the father as ‘helpful, loving and supportive of the staff and his son’; and

• confirmed that the case notes described the father working alongside and collaborating with staff; and

• told the Tribunal that Drake Medox would be happy to provide further services for the son and would be able to work both with the Public Guardian and the NSW Trustee and Guardian.

69. The Guardian ad Litem submitted that the evidence of Mr Polimonakis was instrumental in reaching the correct and preferable decision in this matter.

70. According to the Guardian ad Litem, if the proceedings had proceeded in accordance with the position argued and defended by the Public Guardian in relation to the father’s alleged behaviour:

• Global may never have produced any documents as the Public Guardian took the position on record that the summons to produce was not pressed;

• Mr McDermott may not have given evidence as the Public Guardian took the position on record that the summons to attend and give evidence was not pressed;

• there may have been no evidence from any other service provider as the Public Guardian opposed the time allocated for a Drake witness to give evidence.

71. On this basis, the Guardian ad Litem submits that the claims advanced by the Public Guardian in relation to the father's behaviour were poorly supported in fact and had the potential, without the interference of the other parties to the proceedings, to result in a decision which was not supported on the evidence.

Public Guardian’s response

72. The Public Guardian disputes the Guardian ad Litem’s contention that there was no tenable factual basis for the Public Guardian’s determination that the father's behaviour was such that his proposal was not a viable alternative.

73. According to the Public Guardian, this submission is at odds with the findings of the Tribunal concerning the father’s aggressive behaviour towards care staff. While the Public Guardian concedes that there were also findings about the mother’s conduct, in regard to the father’s conduct, the Public Guardian notes the following findings by the Tribunal in this decision:

• "In relation to the care provided to the son by Global between 2003 and 2008 when Global was caring for the son, I accept, in light of the written evidence of carers in the tender bundle that, on occasions, the father was rude and aggressive to staff, such that one staff member refused to work with the son and another complained of bullying behaviour." (at [403], Reasons for Decision)

• "the father's aggressive and intimidator[y] behaviour towards staff resulted in an access order being made by the Public Guardian limiting the father's time with the son and the father's partner's time with the son. I accept on the evidence that the father's aggressive behaviour often arose after he had been drinking." (at [411], Reasons for Decision)

• "I accept that an access order was also made by the Public Guardian limiting the father's partner's time with the son and preventing her from having any contact with care staff' (at [412], Reasons for Decision)

• "There is no evidence of any access order being made to limit the mother's time with her son." (at [413], Reasons for Decision)

• "Whilst his evidence was inadequate in many respects, I accept Mr McDermott's statement that the mother was less aggressive in her behaviour towards care staff'(at [414], Reasons for Decision).

• "[T]he father's behaviour towards Global carers was unacceptable and indicative of a man who finds it difficult to control his temper. This does not mean that his complaints about his son's care were unfounded..." (at [421], Reasons for Decision)

• "The evidence before me is that the father has a propensity to become aggressive when frustrated by what he perceives to be inadequate care for his son and when he feels excluded from his son's care management." (at [425], Reasons for Decision)

• "The behaviour of the father and his partner towards the mother is both disappointing and inappropriate. The mother has undertaken many trips to Australia to visit the son and to be made to feel unwelcome and subject to abuse is unacceptable. It is clear that the mother and the father should have nothing to do with each other...." (at [440], Reasons for Decision).

The Tribunal’s finding

74. The Public Guardian’s claim that the father had a problem in dealing with care providers was neither weak nor without a tenable basis in fact or law, and should not be used to support the application for a costs order to be made against the Public Guardian. The Tribunal does not agree that it was inappropriate for the Public Guardian to continue to contend that the son should be accommodated with the mother on the basis that the father’s poor behaviour resulted in Global being unable to provide appropriate care to the son.

75. As is set out in the reasons for decision, there was strong evidence of the father’s aggressive behaviour both towards care providers and the mother. There was evidence, too, that his behaviour could be exacerbated by his consumption of alcohol. This was relevant to any accommodation decision and was something I carefully weighed up in reaching my final decision.

76. The Global documents, when they were provided, confirmed the father’s inappropriate behaviour towards care providers and towards the mother. The documents also revealed fundamental shortcomings in the care provided by Global, partially explained some of the behaviour by the father and revealed difficulties in communication between the mother and care providers. It was appropriate for the Public Guardian to continue to press its concerns in relation to the father’s behaviour towards Global care providers.

The nature and complexity of the proceedings (s88(1A) (d)

77. There is no dispute between the parties that the proceedings in this matter were both protracted and involved a number of complex issues. The hearing proceeded over twenty-two days and included seventeen witnesses.

78. The complexity and nature of the proceedings are reflected not only in the number of witnesses called to give evidence but also in the range of evidence that was provided, which included the evidence of legal and financial experts, medical practitioners and family members.

79. The parties co-operated with each other in order to determine an agreed list of issues and witnesses to be called. It was the complexity of the matter that made such a list of agreed issues so important to the effective running of the hearing. The specific issues which required detailed examination included:

• the capacity of the son to make informed decisions to understand the consequences of those decisions as regards his future living arrangements;

• the relationship between each of the parents and the care providers as well as their own relationship as to how it may impact upon the son;

• the financial viability of proposals put forward by the mother and the father the mother’s application;

• the availability of future care in the USA;

• the tax implications of the son being a citizen of the USA; and

• the psychological and psychiatric issues concerning the father as to how they may impact upon his ability to care for the son and examination of each of the competing proposals.

The father’s submission

80. The father agrees that whilst there was co-operation between the parties to determine an agreed list of issues and witnesses to be called, delays were caused by:

• Global’s initial failure to provide relevant material in answer to summons; and the consequential need to recall certain witnesses; and

• the lack of availability of some overseas witnesses.

Guardian ad Litem submission

81. The Guardian ad Litem did not dispute that the proceedings were complex.

Public Guardian response

82. The Public Guardian notes the findings of the Tribunal in the substantive decision for these proceeding, in which the length and complexity of the proceedings are attributed to the following factors:

• there were four parties;

• several interlocutory matters needed to be attended to;

• there were seventeen witnesses and several volumes of material;

• the matter was adjourned to allow for the appointment of a Guardian ad Litem and for an agreed list of issues and witnesses to be provided;

• delays were caused by an initial failure to provide relevant material in answer to summonses issued by the Tribunal and by the consequential need to recall certain witnesses;

• there were some difficulties with the availability of witnesses including those overseas witnesses who were required to give their evidence by telephone; and

• given the complexity of the issues to be considered, it was important to keep continuity of representation. This required further adjournments to ensure the availability of all parties and their representatives.

83. The Public Guardian submits that in light of the nature and complexity of the proceedings, the Tribunal could not be satisfied that it would be "fair" in all of the circumstances to require the Public Guardian to pay the costs of any other party to these proceedings.

Tribunal findings

84. I agree with the submissions of the parties that these proceedings, falling as they do within the protective jurisdiction, were both lengthy and complex.

85. I am not satisfied on the evidence that the complexity of the case was exacerbated by the conduct of the Public Guardian. To the contrary, the efficiency of the Public Guardian ensured that documents were well-compiled and indexed and thereby easier to access and source by all parties. In the circumstances of the case, the Tribunal is not satisfied that it would be fair to award costs against the Public Guardian having regard to the nature and complexity of the proceedings.

Any other matter the Tribunal considers relevant: s.88(1A)(e)

The father’s submission

86. The father submits that the Tribunal should take into account the change of position of the Public Guardian in the course of the proceedings, namely by first placing significant weight on the son’s view before conceding that no such reliance could be placed on the son’s views.

87. The father also submits that the Public Guardian should have entered into mediation despite the mother’s refusal to take part in such a mediation.

Guardian ad Litem’s submission

88. It is the Guardian ad Litem’s submission that the Public Guardian’s inappropriate conduct throughout the proceedings has resulted in a breach of its model litigant obligations, in particular:

• its failure to inform the Tribunal and the other parties in a timely manner about the failure of Global to produce material;

• its delay in providing the Global material it had in its possession; and

• its failure to discharge its paramount purpose to protect the interests and welfare of the son.

89. The Guardian ad Litem submits that these alleged breaches should be a consideration in favour of the Tribunal making the requested costs order.

Public Guardian response

90. The Public Guardian denies that it failed to fulfil its model litigant responsibilities in these proceedings.

91. In particular, the Public Guardian denies that it had an obligation to inform the Tribunal and the other parties of the status of the Global summons, given that the Tribunal was aware that the documents had not been provided, as the registry and the sitting member stood the summons over on several occasions, and any party could have ascertained the status of the summons by attending the return of summons or by inquiring with the registry.

92. The Public Guardian denies delaying the provision of the Global material to the parties.

93. The Public Guardian denies a breach of its duty as model litigant by failing to enter into mediation with the father, despite the refusal of the mother to enter into mediation. It is the Public Guardian’s position that mediation would have been pointless without the involvement of the mother, as the agreement of all parties was required for the matter to be resolved by mediation.

94. The Public Guardian submits that the differences between the mother's position and the father's position meant that this matter required resolution by the Tribunal and was not capable of being resolved between the parties in a consensual manner.

95. In the Public Guardian's submission, it would not be fair in the circumstances to award costs against the Public Guardian given that the Public Guardian assisted the Tribunal (and the other parties) by ensuring that relevant material was before it in these proceedings, including:

• the provision of, at its own expense, an expert report from Baker & McKenzie regarding the US tax consequences;

• the facilitating and funding of a further expert report by Mr David Pollan, following a request by the other parties and the Tribunal to address a series of further questions raised by the other parties in the course of cross-examination;

• the provision of material to other parties in fairness, including material by Global in relation to complaints about the mother;

• the provision of updated calculations to the Tribunal by the NSW Trustee and Guardian in relation to the viability of the mother's proposal, following a request from the father;

• the provision of a hard copy of the exhibits filed in the proceedings, as well as additional documents, to the Guardian ad Litem's solicitor;

• the provision, at the Tribunal’s request, of copies of the USB evidence of the Guardian ad Litem to be distributed to all parties.

Tribunal findings

96. The submissions raised by the father and the Guardian ad Litem under this part of the Act do not, in my view, raise any matters that would satisfy me that it would be fair to award costs against the Public Guardian on that basis.

97. As set out above, it is my view that during these complex proceedings the Public Guardian fulfilled its obligations as model litigant by assisting the Tribunal as required, supplying material relevant to the proceedings and assisting in the distribution of documentation to the other parties to provide greater efficiency in the proceedings.

conclusion

98. For the reasons set out above and as summarised below, I am not satisfied that it would be fair to award costs against the Public Guardian either in favour of the father or the Guardian ad Litem. In reaching this decision, I have had regard to the following considerations:

(a)  whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii)  asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv)  causing an adjournment, or

(v)  attempting to deceive another party or the Tribunal, or

(vi)  vexatiously conducting the proceedings,

(b)  whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)  the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d)  the nature and complexity of the proceedings,

(e)  any other matter that the Tribunal considers relevant.

99. In reaching my decision, I have also considered the principles set out in section 4 of the Guardianship Act.

100. I accept that the proceedings in this case were long and complex and that costs were correspondingly incurred by parties to the proceedings.

101. I do not, however, accept that it would be fair to make a orders order against the Public Guardian. A summary of my reasons for reaching this conclusion is set out below:

• the legal representatives for the Public Guardian adhered to their responsibilities as model litigant and were helpful and organised and efficient. They complied with the relevant legislation and were neither deceptive nor vexatious in their conduct;

• the fact that the Public Guardian did not provide the electronic file in relation to Global at the outset does not, in my view, warrant a costs order being made against the Public Guardian. The summary of the Global documents as considered in the Public Guardian’s decision was provided as part of the s58 documents and when Global proved initially non-responsive to summons requests, the Public Guardian undertook further investigations to locate relevant documents, which were then provided. Provision of the documents at the outset would have been helpful, as it transpired, but, in the circumstances of the case, it would not be fair to award costs against the Public Guardian for this reason;

• on the evidence before me, I am not satisfied that the Public Guardian was responsible for prolonging unreasonably the time taken to complete the proceedings. To the contrary, the Public Guardian was well-prepared and efficient in the conduct of the proceedings;

• in my view, the Public Guardian cannot be held responsible for the repeated failure of Global to reply to the Tribunal’s summons. The Public Guardian did not have the power to require Global to produce the requested material.

• I find that, following the repeated failures of Global to answer the Tribunal summons, the Public Guardian undertook further investigations to locate any material that might be relevant to the proceedings and obviate the need to delay proceedings while waiting for Global to produce the requested material. The investigations undertaken by the Public Guardian were fruitful in that electronic documents pertaining to Global were located and subsequently distributed to all parties. This was an immense administrative task undertaken by the Public Guardian. I do not agree that these documents should have been located and produced by the Public Guardian at the outset. The accommodation decision of the Public Guardian relied upon an executive summary of Global Health material and that summary was made available to all parties as part of the s58 material. The failure to also provide the primary documents did not make the Public Guardian remiss in its duties as model litigant. Indeed, once the request was made by the Guardian ad Litem to view these documents, the Public Guardian took steps to ensure this was done.

• issues of the son’s wishes were correctly raised by the Public Guardian to enable the Tribunal to consider them in accordance with its obligations under s4 of the Guardianship Act.

• it was appropriate for Public Guardian to present evidence about the financial viability of the mother’s proposal. The fact that I found that the father’s proposal was more financially viable does not mean that the claim in relation to the mother’s proposal had no tenable basis in fact or law nor that it should be used to support an application for costs against the Public Guardian;

• I do not agree that it was inappropriate for the Public Guardian to continue to contend that the son should be accommodated with the mother on the basis that the father’s poor behaviour resulted in Global Health being unable to provide appropriate care to the son. There was evidence before the Tribunal of the father’s poor behaviour towards care providers and also towards the mother. This was relevant to any accommodation decision and something I had to consider in reaching my final decision. The Global documents, when they were provided, confirmed the father’s inappropriate behaviour towards care providers and towards the mother. It was appropriate for the Public Guardian to continue to press its concerns in relation to the father’s behaviour towards Global Health

• I am not satisfied on the evidence that the complexity of the case was exacerbated by the conduct of the Public Guardian. To the contrary, the efficiency of the Public Guardian ensured that documents were well-compiled and indexed and thereby easier to access and source by all parties. In the circumstances of the case, the Tribunal is not satisfied that it would be fair to award costs against the Public Guardian having regard to the nature and complexity of the proceedings.

• No additional matter raised by the parties satisfies me that it would be fair to award costs against the Public Guardian. In light of the mother’s refusal to take part in mediation, the Public Guardian cannot be held responsible for the failure of mediation to take place. The Public Guardian ensured relevant and updated material was before the Tribunal and provided to the other parties as required.

order

102. The application for an order of costs is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 May 2016