BMA and BMB v Department of Family and Community Services (No 2)

[2015] NSWCATAD 93

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BMA and BMB v Department of Family and Community Services (No 2) [2015] NSWCATAD 93
Hearing dates:	On the papers
Decision date:	08 May 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member P Foreman, General Member
Decision:	The applicants’ application for costs is refused.
Catchwords:	Administrative review – costs
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013
Cases Cited:	BMA and BMB v Department of Family and Community Services [2015] NSWCATAD 20
Category:	Costs
Parties:	BMA and BMB (Applicants) Department of Family and Community Services (Respondent)
Representation:	Solicitors: A Melville (Applicants) J Smith, Care Legal (Respondent) Legal Aid (Guardian ad Litem)
File Number(s):	1410497
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013

REASONS FOR decision

1. The applicants, BMA and BMB (Mr B and Mrs B) are authorised carers under Chapter 8 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). In August 2014, they made an application to the Tribunal seeking review of a decision of the respondent to de-authorise them as carers and to remove their grandson (the child) from their day-to- day care.

2. The applicants application was heard over 3 days, on 7 January and 4 and 11 February 2015.

3. Our decision and reasons for decision were published on 19 February 2015: see BMA and BMB v Department of Family and Community Services [2015] NSWCATAD 20. In that decision we made orders setting aside the decision of the respondent to de-authorise the applicants as carers and affirmed the decision of the respondent to remove the child from the applicant’s care.

4. At the conclusion of the hearing and in their written submissions the applicants made an application for costs. Accordingly, in publishing our decision, we also made orders for the parties to file and serve written submissions on the applicants’ application for costs. Submissions were filed and served in accordance with the orders made.

The Tribunal’s power to award costs

5. The Tribunal’s power to award costs is set out in section 60 of the Civil and Administrative Tribunal Act 2013 (the Act). That section is in the following terms:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

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

(4) If costs are to be awarded by the Tribunal, the Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(5) In this section: "costs" includes:

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

6. As can be seen from the above, the ordinary rule is that each party to proceedings before the Tribunal pay their own costs. Subsection 60(2) gives the Tribunal a wide discretion to award costs where it is satisfied that there are ‘special circumstances’ that warrant an award of costs. That is, the Tribunal must be satisfied there are ‘special circumstances’ and these warrant an award of costs.

7. What constitutes ‘special circumstances’ are one or more of the matters set out in subsection 60(3) of the Act.

8. Section 36(1) of the Act sets out the "guiding principle" for the Act and the procedural rules, in their application to proceedings in the Tribunal. These are to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

9. Subsection 36(3) of the Act sets out the persons who are to co-operate with the Tribunal to give effect to the above guiding principles. That subsection is in the following term:

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

The applicants’ submissions

10. In their submissions, the applicants identified the following matters as giving rise to special circumstances that warranted an award of costs in their favour:

1. the matters on which the respondent based its decision to de-authorise the applicants was not accepted by the Tribunal and the decision was set aside. While the Tribunal affirmed the decision of the respondent in regard to the removal of their grandchild from their care, this was based on the evidence of the Guardian ad Litem and not on the matters relied on by the respondent at the time it made its decision.

2. the Guardian ad Litem criticised the actions of the respondent in removing the applicants’ grandchild from their care and in de-authorising them as carers.

3. in de-authorising the applicants and sudden removal of their grandchild from their care, the respondent unnecessarily disadvantaged the applicants, as their grandchild was out of their care for almost eight months before the hearing of the matter.

4. the proceedings in their nature were complex and of extreme importance to the applicants and their grandchild. It was acknowledged that the proceedings were important as a matter of principle to the respondent, however, the respondent defended their decision to ensure no adverse findings were made about the procedural errors made by its Community Services Centre responsible for the support and supervision of the placement; and

5. the applicants are self-funded litigants who own their own home, but they have very little in the way of other liquid assets to pay for their legal costs – their sole source of income being pensions.

Respondent’s submissions

11. The respondent submitted that there were no special circumstances in these proceedings to warrant a departure from the general principle that each party bear their own costs.

12. It was noted that the respondent had not failed to comply with direction orders made by the Tribunal. Nor had the respondent delayed the proceedings in any way. Furthermore, there was no evidence to suggest that the respondent had acted otherwise and in accordance with the Model Litigant Policy in the conduct of the proceedings. It was noted that the respondent provided all the relevant documents on which its decision was made (i.e. the section 58 bundle of documents) and also responded promptly to the applicants’ material that was filed.

13. The respondent noted it was agreeable to travelling to a location for the hearing of the matter, which was convenient to the applicants so as to ensure the matter could be heard promptly.

14. The respondent submitted it could not be argued that its decisions the subject of review had been made on no tenable basis in fact or law. In this regard the Tribunal had affirmed the decision to remove the grandchild from the applicants’ care and while considerable weight was place on the report of the Guardian ad Litem, the report was largely based on evidence that had been filed by the respondent, in particular the evidence relating to the child’s progress since his removal from the applicants’ care and his current circumstances.

15. The respondent also submitted that while the issues in this case were sensitive and focused on the child’s safety, welfare and wellbeing, they were not overly complex. It was noted that no expert assessment was required, the amount of material filed was not extensive and the proceedings were dealt with fairly and expeditiously in terms of the amount of Court time required. The respondent denied that it defended the proceedings in such a way to ensure that there were no adverse findings made against it. It pointed out that its focus was, as it is with all proceedings of this nature, the safety, welfare and wellbeing of the child the subject of the proceedings. It was noted that the Tribunal was not critical of the respondent’s officers in their case work and that the recommendations that were made related to the respondent’s policies and procedures, which were being seriously considered by the respondent.

16. In regard to the quantum sought by the applicants, the respondent submitted that these were excessive and not a reasonable and fair amount in the circumstances of this case.

Consideration

17. We accept that the applicants went to every length possible in order to seek the return of their grandson into their care. We also accept that they may have felt that they would not be able to adequately represent themselves at the hearing. However, this is not a basis on which a cost order should be made.

18. Nor is the fact that a party has succeeded in its claim a basis to find ‘special circumstances’ warranting an order for costs.

19. In our view the proceedings were not complex and we accept neither party acted in a manner to unnecessarily delay the proceedings before the Tribunal. The delays in the respondent’s decision making prior to the applicants’ lodging this application do not, in our view, amount to special circumstances for the purpose of subsection 60(2) of the Act.

20. Accordingly, we are not satisfied that the applicants have established ‘special circumstances’ warranting an award of costs in their favour. Hence the ordinary rule that each party pay its own costs continues to apply and the applicants’ application for 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: 08 May 2015