Director-General, Department of Community Services v Druett

[2003] NSWCA 351

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Director-General, Department of Community Services v. Druett [2003]  NSWCA 351

FILE NUMBER(S):
40718/03

HEARING DATE(S):            1 December 2003

JUDGMENT DATE: 01/12/2003

PARTIES:
Director-General, Department of Community Services - claimant
Garry Keith Druett - opponent

JUDGMENT OF:      Mason P Hodgson JA    

LOWER COURT JURISDICTION: Administrative Decisions Tribunal

LOWER COURT FILE NUMBER(S):        029020

LOWER COURT JUDICIAL OFFICER:     Appeal Panel

COUNSEL:
Matter considered in Chambers

SOLICITORS:
I.V. Knight, Crown Solicitor for claimant
The opponent was unrepresented

CATCHWORDS:
APPEALS
COSTS - Whether leave to appeal should be granted.

LEGISLATION CITED:

DECISION:
1. Both summonses dismissed 2. Each party to bear its own costs of both summonses.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA40718/03

MASON P
HODGSON JA

Monday 1 December 2003

DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES V. DRUETT

Judgment

1. THE COURT:  On 30 June 2003, the Appeal Panel of the Administrative Decisions Tribunal of New South Wales dismissed applications for costs orders made by the Director-General, Department of Community Services (the Department) and Garry Keith Druett in respect of appeal proceedings brought by Mr. Druett and dismissed by the Appeal Panel.  On 24 July 2003, the Appeal Panel delivered written reasons for that decision, which set out their ex tempore reasons given on 30 June 2003 with minor revisions.  By its summons filed 21 August 2003, the Department seeks leave to appeal from the dismissal of its application.  By his summons filed 18 September 2003, Mr. Druett seeks leave to cross-appeal from the same decision and also to appeal from other decisions of the Appeal Panel.  The parties have agreed that these applications be decided on the papers, pursuant to Pt.51 r.4D. 

2. The principal grounds sought to be relied on by the Department are that the Appeal Panel erred in failing to take into account as “special circumstances” which could justify an award of costs the circumstance that the appeal was manifestly without foundation; in taking into account irrelevant considerations, namely that the matter was a cause of deep concern to Mr. Druett and Mr. Druett was a person of limited means; in finding that the burden imposed on the Department was a limited one, when there was no evidence to that effect; and in adopting a general principle that the Tribunal was more prepared to intervene by way of costs orders in relation to civil disputes than cases concerning administrative review. 

3. In our opinion, the reasons of the Appeal Panel clearly show that it did take into account that the appeal had no foundation.  We are not persuaded that matters personal to parties to proceedings such as this, such as genuine concern about the subject matter and limited means, are entirely irrelevant to the exercise of the wide discretion of the Tribunal to refuse costs.  In our opinion, a tribunal which has heard a matter can draw general conclusions about the extent of costs involved without hearing explicit evidence about this; and it is not clear that the Appeal Panel was wrong in being less prepared to make costs orders in administrative review cases. 

4. We agree with the submissions of the Department that it would be an error if any of the above factors had been taken as determinative or precluding consideration on its merits of each individual case, or if the decision expressed a general approach that costs should not be awarded in administrative review cases even when the relevant application or appeal was without foundation.  But in our opinion, the decision was no more than a decision in the particular case, and a case is not made out for the grant of leave to appeal. 

5. In our opinion, Mr. Druett puts forward no reasonable basis to allow him to cross-appeal in the matter, and no reasonable basis for granting leave to appeal in respect of other decisions. 

6. Accordingly, both applications should be dismissed.  Rather than making an order that each dismissal be with costs, we will order that each party bear its own costs of each matter.  Although in the result this is unfavourable to the Department, which has legal representation, in our opinion it is appropriate, particularly in circumstances where the appellate process was instituted by the Department and the application by Mr. Druett could be seen as a response to this.

7. Accordingly, the orders are:

   1.          Both summonses dismissed.

   2.          Each party to bear its own costs of both summonses.

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LAST UPDATED:     01/12/2003