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DZU v Foundations Care

DZU v Foundations Care

Case [2021] NSWCATAD 142 31 May 2021

Costs

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Admissibility of Evidence

Civil Litigation & Procedure

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DZU v Foundations Care [2021] NSWCATAD 142
Hearing dates: On the papers
Date of orders: 31 May 2021
Decision date: 31 May 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
P Foreman, General Member
Decision:
1. A hearing of the applicant’s application for costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.
2.   The respondent is to pay the applicant’s costs    of and incidental to:
   a.   the assessment by its expert Dr Casey;          and
   b.    the proceedings after 10 July 2020.
3. The abovementioned costs are to be paid as agreed or assessed on the basis set out in s 60(4)(b) of the NCAT Act.

Catchwords:
COSTS – administrative review proceedings – proceedings settled at the end of the second last day of a three day hearing - whether special circumstances warranting an award of costs – whether costs to be assessed on an indemnity basis

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)

Cases Cited:
BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87
Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222
CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Edward v CohenHandler Pty Ltd (No 2) [2017] NSWCATAP 81
Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249
Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103
Jubian v Clark (No 2): Clark v Jubian (No2) [2016] NSWCATAP 153
Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120
P v NSW Trustee and Guardian (No 2) [2015} NSWSC 676

Texts Cited:
Nil

Category: Costs
Parties: DZU (Applicant)
Foundations Care (Respondent)
Representation:
Counsel:
P Decle for the Applicant
T Stevens for the Respondent
Solicitors:
Trenches McKenzie Cox Solicitors(Applicant)
Hall Payne Lawyers (Respondent)

File Number(s): 2019/00285122
Publication restriction: Pursuant to s 65 (1)(b) and (2) of the Civil and Administrative Tribunal Act 2013, a person must not, except with the consent of the Tribunal, must not publish or broadcast the name of the applicant, the name of the child to whom the proceedings relate, or the name of any child or other person (other than employees of the respondent and expert witnesses).
For the purposes of s 65, a reference to the name of a person or child includes a reference to any information, picture or other material that identifies the person or child and is likely to lead to the identification of the person or child.

reasons for decision

The applicant, DZU, seeks an order, under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), that the respondent, Foundations Care,…

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 DZU v Foundations Care

Details

AGLC: DZU v Foundations Care [2021] NSWCATAD 142
Case: [2021] NSWCATAD 142
Decision Date: 31 May 2021

CaseChat Overview and Summary

DZU, the applicant, sought an award of costs against Foundations Care, the respondent, following a hearing in administrative review proceedings. The dispute was settled at the end of the second last day of a three-day hearing, leading to the applicant applying for an order that the costs of the proceedings be paid by the respondent. The application for costs was made pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 and section 60 of the Civil and Administrative Tribunal Act 2009. The primary legal issue before the court was whether special circumstances existed that warranted an award of costs against the respondent. Additionally, the court had to determine whether the costs should be assessed on an indemnity basis.

The court considered the circumstances surrounding the settlement of the proceedings and the nature of the expert assessment conducted by the applicant's expert, Dr. Casey. The court found that special circumstances did indeed exist due to the late settlement of the proceedings, which resulted in unnecessary costs incurred by the applicant. The court also held that an indemnity basis for assessing the costs was appropriate given the respondent's conduct throughout the proceedings. The court emphasised the importance of the respondent bearing its own costs for the expert assessment and for the proceedings following the settlement date.

In light of the above, the court dispensed with a hearing for the applicant’s application for costs in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013. The court ordered that the respondent pay the applicant's costs of and incidental to the assessment by Dr. Casey and the proceedings after 10 July 2020. The court specified that these costs were to be paid as agreed or assessed on the basis set out in section 60(4)(b) of the NCAT Act. This decision underscores the importance of administrative review proceedings being conducted with due regard to the interests of both parties and the efficient use of resources.

Orders

Orders of the court

1. A hearing of the applicant’s application for costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The respondent is to pay the applicant’s costs of and incidental to:

a. the assessment by its expert Dr Casey; and

b. the proceedings after 10 July 2020.

3. The abovementioned costs are to be paid as agreed or assessed on the basis set out in s 60(4)(b) of the NCAT Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

DZU v Foundations Care [2021] NSWCATAD 142

Most Recent Citation

Re Leonardo [2022] NSWSC 1265

Cases citing this decision · 1 of 1 shown

Re Leonardo
[2022] NSWSC 1265 Para 254

…isions referring to s 10A Care Act do not so far as I can tell conflict with the construction that I have indicated above: see DZU v Foundations Care [2021] NSWCATAD 142; Rogers (a pseudonym) v Secretary, Department of Family and Community Services NSW [2019] NSWDC 194; Foster Carer v Department of Family and Communit…

View all 1 citing cases →

Cases cited in this decision · 9 of 9 shown

P v NSW Trustee and Guardian (No 2)
[2015] NSWSC 676 Para 1

…ng of a cost order. In support of this submission the respondent relied on the decision of the Supreme Court in P v NSW Trustee and Guardian (No 2) [2015] NSWSC 676, at [10] ( P v NSW Trustee and Guardian );…
Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue
[2015] NSWCATAD 103 Para 19

…be satisfied that they are circumstances ‘ warranting an award of costs ’: Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenu e [2015] NSWCATAD 103 ( Fitzpatrick Investments ), at [21]. The exercise of the discretion requires the Tribunal ‘ to weigh whether those circumstances are sufficient to amoun…
Cripps v G & M Dawson Pty Ltd
[2006] NSWCA 81 Para 14

…] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32] and Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81,at [60].…
CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley
[2015] NSWCATAP 21 Para 14

…r for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32] and Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81,at [60].…
[2016] NSWCATAP 153
[2016] NSWCATAP 153 Para 17

…ul or unsuccessful in his or her claim/proceedings does not of itself give rise to special circumstances: Jubian v Clark (No 2): Clark v Jubian (No2) [2016] NSWCATAP 153, at [29].…
BPU v NSW Trustee & Guardian
[2016] NSWCATAP 87 Para 19

…s that justify departing from the general rule that each party bear their own costs ’: BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87at [9].…
[2017] NSWCATAP 81
[2017] NSWCATAP 81 Para 2

…e respondent noted that in support of that submission, the applicant relied on the decision of the Tribunal in Edward v CohenHandler Pty Ltd (No 2) [2017] NSWCATAP 81. That decision, the respondent noted concerned a matter which had an element of commerciality about it, yet in these proceedings:…
[2019] NSWCATAP 222
[2019] NSWCATAP 222 Para 14

…at [9]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32] and Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81,at [60].…
[2019] NSWCATAP 231
[2019] NSWCATAP 231 Para 93

…satisfied that the applicant’s costs should be paid on an indemnity basis. As noted by the Appeal Panel in SHH v City of Parramatta Council (No 2) [2019] NSWCATAP 231, at [47] and [48], an award of costs is not punitive and it should be exercised so as to give effect to the guiding s 36(21) principle to facilitate th…

Legislation cited in this decision · 8

Children and Young Persons (Care and Protection) Act 1998 (NSW)
245(1)(c) 2 mentions (from Para 2)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
29(1) 2 mentions (from Para 3)
Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 2)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 1)
Civil Procedure Act 2005 (NSW)
1 mention
Civil Procedure Rules 2005 (NSW)
1 mention (from Para 71)
Legal Profession Uniform Law Application Act 2014 (Vic)
1 mention
Uniform Civil Procedure Rules 2005 (NSW)
1 mention

Medium Neutral Citation:	DZU v Foundations Care [2021] NSWCATAD 142
Hearing dates:	On the papers
Date of orders:	31 May 2021
Decision date:	31 May 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member P Foreman, General Member
Decision:	1. A hearing of the applicant’s application for costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The respondent is to pay the applicant’s costs of and incidental to: a. the assessment by its expert Dr Casey; and b. the proceedings after 10 July 2020. 3. The abovementioned costs are to be paid as agreed or assessed on the basis set out in s 60(4)(b) of the NCAT Act.
Catchwords:	COSTS – administrative review proceedings – proceedings settled at the end of the second last day of a three day hearing - whether special circumstances warranting an award of costs – whether costs to be assessed on an indemnity basis
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Cases Cited:	BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Edward v CohenHandler Pty Ltd (No 2) [2017] NSWCATAP 81 Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 Jubian v Clark (No 2): Clark v Jubian (No2) [2016] NSWCATAP 153 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 P v NSW Trustee and Guardian (No 2) [2015} NSWSC 676
Texts Cited:	Nil
Category:	Costs
Parties:	DZU (Applicant) Foundations Care (Respondent)
Representation:	Counsel: P Decle for the Applicant T Stevens for the Respondent Solicitors: Trenches McKenzie Cox Solicitors(Applicant) Hall Payne Lawyers (Respondent)
File Number(s):	2019/00285122
Publication restriction:	Pursuant to s 65 (1)(b) and (2) of the Civil and Administrative Tribunal Act 2013, a person must not, except with the consent of the Tribunal, must not publish or broadcast the name of the applicant, the name of the child to whom the proceedings relate, or the name of any child or other person (other than employees of the respondent and expert witnesses). For the purposes of s 65, a reference to the name of a person or child includes a reference to any information, picture or other material that identifies the person or child and is likely to lead to the identification of the person or child.