Department of Human Services v RA (No 2)
[2010] NSWADTAP 37
•2 June 2010
Appeal Panel - Internal
CITATION: Department of Human Services v RA (No 2) [2010] NSWADTAP 37 PARTIES: APPELLANT
Department of Human ServicesFIRST RESPONDENT
RASECOND RESPONDENT
THIRD RESPONDENT
RB
THFILE NUMBER: 109008 HEARING DATES: 21 May 2010 SUBMISSIONS CLOSED: 21 May 2010
DATE OF DECISION:
2 June 2010BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Foreman P - Non-Judicial Member CATCHWORDS: COSTS – relative strength of the claims – senior counsel engaged DECISION UNDER APPEAL: RA and RB v Department of Community Services, unreported, 9 December 2009 FILE NUMBER UNDER APPEAL: 094035 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Children and Young Persons (Care and Protection) Act 1998CASES CITED: Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP
Corrigan and Gibson v Watson [2009] NSWADT 110
Hawke v WorkCover NSW (No2) 2008 NSWADTAP 45
PR v Department of Community Services [2009] NSWADT 277
NZ and OA v Director General, Department of Community Services [2009] NSWADT 231REPRESENTATION: APPELLANT
M Allars, counselFIRST & SECOND RESPONDENT
THIRD RESPONDENT
P Braine, counsel
M Whelan, independent child’s lawyerORDERS: The Department of Human Services pay the costs of RA, RB and TH of these proceedings as agreed or assessed, such costs to include counsel’s fees calculated on the basis of fees properly payable to junior counsel.
REASONS FOR DECISION
Introduction
1 RA and RB, a married couple, and TH, a young child, have applied for the Department of Human Services to pay their costs in relation to proceedings before the Appeal Panel. The costs application has been determined ‘on the papers’, that is on the basis of written submissions: Administrative Decisions Tribunal Act 1997 (ADT Act), s 76. TH’s independent legal representative adopted the submissions of RA and RB.
2 Soon after TH was born in April 2009, the Director General of the then Department of Community Services (now the Department of Human Services) assumed responsibility for her and placed her in the care of RA and RB. On 29 September 2009 the Children’s Court made a final order with the consent of TH’s natural parents, placing TH under the parental responsibility of the Minister until she turns 18: Children and Young Persons (Care and Protection) Act 1998 (Care Act), s 79. The care plan which the Department presented to the Children’s Court proposed, among other things, that TH be placed with her three year old brother J in Queensland if J’s carer was approved to care for TH. J’s carer was approved. On 2 October 2009 the Department wrote to RA and RB advising them that a decision had been made to move TH permanently to live with J and his carer.
3 RA and RB applied to the Tribunal for a review of the Director General’s decision to remove TH from their day-to-day care. The Department submitted that the Tribunal did not have jurisdiction to hear that application. The Tribunal decided that it did have jurisdiction. The Department appealed against the Tribunal’s decision on a question of law: ADT Act, s 113(2)(a). Because the Tribunal had not yet carried out a review of the Department’s decision, the Appeal Panel regarded the jurisdiction decision as an interlocutory decision. In those circumstances leave is required before the appeal can proceed: ADT Act, s 113(2A). The Appeal Panel granted leave and decided that the Tribunal had not made an error of law. Its conclusion was that the Tribunal does have jurisdiction to review the Department’s decision to remove TH from the care of RA and RB.
Costs provision
Section 88 of the ADT Act provides that:
(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.
(2) The Tribunal may:(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(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.
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(4) In this section, "costs" includes:(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
Issue
4 The general rule is that each party to proceedings bears his or her own costs: ADT Act, s 88(1) . The issue to be determined is whether it is fair to order the Department to pay the costs of RA, RB and TH having regard to the matters listed in s 88(1A) of the ADT Act which includes any matter that the Appeal Panel considers relevant.
Relative strength of the appeal
5 Legal principles. One basis on which it was submitted that costs should be awarded was the relative weakness of the appeal: s 88(1A)(c). While being successful on appeal, by itself, is not a matter that would ordinarily make it fair to award costs against the unsuccessful party, the strength of the appeal, including whether it has any tenable basis in fact or law, is relevant. Even if a claim is not ‘unarguable, unreasonable or untenable’ it may still be fair to award costs: Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 at [43]. Nevertheless, in Corrigan and Gibson v Watson [2009] NSWADT 110 at [29] it was held that there needs to be a ‘high level’ of relative weakness of a party’s case in order to justify making an award of costs.
6 RA, RB and TH submitted that the appeal was ‘somewhat speculative’ and that the Appeal Panel decided to grant leave for the appeal to proceed because of the significance of the jurisdictional point, not because the Tribunal’s decision was attended with sufficient doubt to warrant leave being granted.
7 Strength of the appeal. The appeal relied on the Department establishing one of three propositions. Those propositions, and the Appeal Panel’s conclusion in relation to each of them, was as follows:
1. That the Children’s Court had made an order in the terms of the care plan;
The Appeal Panel found that there was no reference to the care plan in the order of the Children’s Court and no basis for assuming that the Magistrate intended to refer to the care plan.
2. That the Children’s Court embodied or approved the provisions of the care plan in its order;
The Appeal Panel found that the care order was made by consent and that the Children’s Court did not embody or approve any provision of the care plan including permanency planning even though had power to do so: Care Act , s 78(4) and s 83(8).
3. When RA and RB filed their application the Director General had not made a decision to remove TH from their care.
The Appeal Panel found that when RA and RB lodged their application with the Tribunal the Director General had made a decision to remove TH from their daily care and control.
8 These findings were based on evidence including the transcript of the Children’s Court proceedings and correspondence with the Department. It is apparent from the Appeal Panel’s decision that the first two propositions put forward by the Department were barely arguable. The third proposition was arguable but was not a matter that had been put to the Tribunal. The Appeal Panel nevertheless dealt with it and found that it had not been made out. Collectively, the grounds of appeal can be described as extremely weak. That is a relevant matter in determining whether it is fair to make an order for costs.
Nature of the proceedings
9 Test case? RA, RB and TH also submitted that the Appeal Panel granted leave for the appeal to proceed notwithstanding that it was relatively weak, because it was ‘something of a test case’. We do not regard the appeal as falling into the category of a test case. Even if it was, RA, RB and TH did not elaborate on why that would make it fair for cost to be awarded.
10 Appeal. The fact that the costs application relates to appeal proceedings means that costs ought more readily be awarded: Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 at [29]. In Hawke v WorkCover NSW (No 2) 2008 NSWADTAP 45 at [15], President O’Connor said that:
If the losing party at first instance (whether citizen or administrator) brings forward an unmeritorious appeal, the other party should be given some protection from having to go around the course a second time.
11 While that comment was made in relation to the former s 88, where the test was ‘special circumstances’ rather than ‘fairness’, we agree that it more likely to be fair to award costs against a party who brings a weak appeal than against a party who brings a weak case to the Tribunal at first instance. That is because, as the President noted in Hawke, the other party should have ‘some protection from having to go around the course a second time.’
12 This is particularly so where the Tribunal’s decisions on the point at first instance have been consistent. We do not accept the Department’s submission that the Tribunal had previously made inconsistent decisions in relation to its jurisdiction. The Tribunal had previously decided that it had jurisdiction in similar circumstances: PR v Department of Community Services [2009] NSWADT 277. The decision that the Department cited as being inconsistent with the Tribunal’s decision in this case, NZ and OA v Director General, Department of Community Services [2009] NSWADT 231, involved different facts. In that case, the Children’s Court had made an order under s 48 of the Care Act to remove a child from premises or places specified in the order. The Tribunal concluded that the Director General’s delegate had decided that, rather than exercising the powers of removal under the Care Act, she would leave the question in the hands of the Children’s Court and seek its order under s 48. The making of that order by the Children’s Court meant that the Department had not made a reviewable decision and the Tribunal did not have jurisdiction. The Children’s Court did not make an order under s 48 in the present case. Nor was the care plan or permanency plan enforceable given that neither was embodied or approved by an order of the Children’s Court: Care Act, s 78(4) or s 83(8).
13 The fact that the costs application relates to an appeal and that the Tribunal had consistently decided that it had jurisdiction in similar circumstances, are relevant matters when considering whether it is fair to award costs against the Department.
Other matters
14 Conduct of the Department before the Children’s Court. The Appeal Panel may also take into account any other matter that it considers relevant: ADT Act, s 88(1A)(e). RA, RB and TH relied on the fact that in the proceedings before the Children’s Court on 29 September 2009, the representative for the Director General of the Department, Mr Mulherin, made the following submission to the Magistrate in response to the application of RA and RB to be joined as parties:
And I would suggest that the foster carers have an avenue available to them, if they disagree with where the child is to be placed, that’s not an issue for the court anyway in terms of the final order that would be sought. But if they have a disagreement with where the Department wishes to place the child, the avenue is the Administrative Decisions Tribunal, which is still open to them and where they can still make an application.
15 RA and RB made the point that having made that submission to the Magistrate, the Department should not have subsequently challenged the Tribunal’s jurisdiction. Mr Mulherin swore an affidavit on 14 October 2009 setting out the circumstances which led him to make the submission to the Children’s Court. He said that the submissions was based on comments made to him by Mr Braine, counsel for RA and RB, in a phone call prior to the Children’s Court hearing. Mr Mulherin said that he has not been involved in other matters that have been referred to the Tribunal and has never previously made a submission to the Children’s Court about the Tribunal’s jurisdiction. We accept that evidence.
16 We accept that RA and RB may have been disadvantaged by not being joined as parties to the Children’s Court proceedings if it turned out that the Tribunal did not have jurisdiction to review the Department’s decision. However the Tribunal does have jurisdiction and their application has been heard. In those circumstances, the fact that Mr Mulherin made a submission to the Children’s Court that the Department subsequently disavowed is not a relevant matter when determining whether to award costs against the Department in these proceedings.
17 Relative financial circumstances. RA and RB submitted that they are foster carers of modest means and that that is a relevant matter when deciding whether it is fair to award costs. We agree with the Department that as no evidence was tendered of their financial situation, there is no basis for finding that they are of modest means. The fact that they are authorised carers does not lead to that conclusion.
Conclusion
18 We are satisfied that it is fair to order the Department to pay the reasonable costs of RA, RB and TH in this case. We have had regard to 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 and have concluded that, collectively, the Department’s grounds of appeal were extremely weak. We have also had regard to the nature of the proceedings, in particular the fact that the proceedings are appeal proceedings and that the Tribunal had consistently decided that it had jurisdiction in similar circumstances.
Extent of costs
19 The Tribunal may determine the amount of costs to be paid. Costs may 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. In this case RA and RB submitted that it was appropriate for them to engage senior counsel (on a direct access basis) because the Department’s legal and factual submissions were not straightforward. The Department submitted that it was unnecessary for RA and RB to instruct senior counsel when they were already represented by junior counsel experienced in the jurisdiction. The appeal did not raise issues which were particularly complex and we agree with the Department that it would not be fair to order it to pay the costs of senior counsel.
The Department of Human Services pay the costs of RA, RB and TH of these proceedings as agreed or assessed, such costs to include counsel’s fees calculated on the basis of fees properly payable to junior counsel.
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