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

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’.
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’.
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.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BDO v Public Guardian (No 2)

Details

AGLC: BDO v Public Guardian (No 2) [2016] NSWCATAD 89
Case: [2016] NSWCATAD 89
Decision Date: 12 May 2016

CaseChat Overview and Summary

The case of BDO v Public Guardian (No 2) involved a review of a decision made by the Public Guardian, which was brought before the court. BDO sought to challenge the Public Guardian's decision regarding accommodation arrangements, which had been deemed to be inadequate. The matter was heard in the Federal Circuit and Family Court of Australia, where BDO argued for an order that the Public Guardian should cover the costs of the legal proceedings.

The central legal issue in this case was whether it was appropriate for the court to grant an order for costs under section 88 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). This section of the Act allows the court to order a party to pay the costs of another party if it considers the circumstances to be such that it would be just and equitable to do so. BDO contended that it was entitled to such an order due to the nature of the Public Guardian's decision and the resulting necessity for legal action. The court needed to determine if the circumstances of the case warranted a costs order.

The court considered the provisions of the Act and the principles of fairness and justice in deciding whether to grant the costs order. It found that, while BDO's actions were justified in seeking a review of the decision, the circumstances did not warrant a costs order against the Public Guardian. The court concluded that the decision-making process of the Public Guardian did not exhibit such unfairness or unreasonableness as to justify penalising the Public Guardian with costs. As a result, the application for an order of costs was refused.

Orders

Orders of the court

The application for an order of costs is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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.