GN v Public Guardian
[2009] NSWADTAP 6
•19 February 2009
Appeal Panel - External
CITATION: GN & anor v Public Guardian & anor [2009] NSWADTAP 6 PARTIES: FIRST APPELLANT
GNSECOND APPELLANT
FIRST RESPONDENT
GO
Public GuardianFILE NUMBER: 088005 HEARING DATES: On the papers SUBMISSIONS CLOSED: 15 January 2009
DATE OF DECISION:
19 February 2009BEFORE: Handley R - Deputy President; Millar J - Judicial Member; Field B - Non-Judicial Member CATCHWORDS: Costs DECISION UNDER APPEAL: To allow a guardianship order to lapse FILE NUMBER UNDER APPEAL: Guardianship Tribunal: C/35159 Matter no: 2007/2118 DATE OF DECISION UNDER APPEAL: 11/11/2008 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Amendment Act 2008
Guardianship Act 1987
Vexatious Proceedings Act 2008CASES CITED: GN & anor v Public Guardian & anor [2008] NSWADTAP 7
Paras v Legal Services Commissioner (No 4) (LSD) NSWADTAP 39
Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12
Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27
Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39
B & L Linings & anor v Chief Commissioner of State Revenue [2008] NSWADTAP 14
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 247
Commissioner of Police, NSW Police v LZ (GD) [2008] NSWADTAP 22REPRESENTATION: APPELLANTS
P Fazio, solicitorFIRST RESPONDENT
SECOND RESPONDENT
No appearance
S Friend, solicitorORDERS: The application for costs is refused.
Background
1 The Appellants, GN and GO, appealed against a decision of the Guardianship Tribunal dated 4 April 2008 to allow a guardianship order made in respect of their mother, GP, to lapse. An Appeal Panel hearing took place on 24 October 2008. On 11 November 2008, the Appeal Panel’s decision (GN & anor v Public Guardian & anor [2008] NSWADTAP 7) was published, concluding with the following orders:
(1) The decision under appeal is affirmed.
(2) GP’s solicitors have two weeks from the date of this decision to notify the Appeal Panel whether they wish to pursue their application for costs.
2 The Second Respondent, GP’s solicitor notified the Appeal Panel that GP wished to apply for costs and, on 16 December 2008, filed submissions. The Appellants’ solicitors filed submissions in reply on 15 January 2009. The Tribunal subsequently invited the parties to file further submissions in relation to the effect of an amendment to the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) that took effect on 1 January 2009.
Applicable Legislation
3 Section 88 of the ADT Act previously stated:
88 Costs
(1) 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 there are special circumstances warranting an award of costs.
(2) The Tribunal may:
(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.
(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.
(4) In this section, "costs" includes:
(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.
4 As a result of an amendment to the ADT Act by the Administrative Decisions Tribunal Amendment Act 2008 (‘the Amendment Act’), Schedule 1, [33], the former section 88 was repealed and replaced by the following new s 88. This amendment took effect on 1 January 2009 and, pursuant to section 44(2) of the Amendment Act, the new section 88 applies “to applications and proceedings that were made or commenced, but not finally determined, before the commencement of the substantive amendment concerned”.
88 Costs
(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.
(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.
(2) The Tribunal may:
(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.
(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.
(4) In this section, "costs" includes:
(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.
GP’s Submissions
5 GP’s solicitor, Mr Friend, referred to the discussion of the meaning of ‘special circumstances’ in the Tribunal’s Practice Note No 12 and in the Appeal Panel decision in Paras v Legal Services Commissioner (No 4) (LSD) NSWADTAP 39.
6 Mr Friend submitted that the appeal was without any real prospect of success. He said the Appeal Panel was satisfied that the Guardianship Tribunal undertook a proper process of evaluation and, while focusing on GP’s welfare and interests as the paramount consideration, also had regard to the preservation of GP’s family relationships.
7 Mr Friend noted that a principal focus of the appeal was whether the Guardianship Tribunal had properly considered retaining the Public Guardian for the purpose of facilitating access to GP. However, as the Public Guardian advised and as the Appeal Panel recognised, the Public Guardian’s functions do not include a specific communication/access function. Notwithstanding this, having attempted to persuade GP to see the Appellants, the Public Guardian took the view that any further intervention was only likely to distress GP further. Thus, Mr Friend submitted, the appeal was vexatious.
8 In his further submissions filed on 4 February 2009, Mr Friend noted that the new section 88 of the ADT Act requires that, amongst other factors, the Tribunal must have regard, to the relative strengths of the claims made by each of the parties (s 88(1A)(c)) and the nature and complexity of the proceedings (s 88(1A)(d)). Mr Friend submitted that it was clear there was no error of law in the Guardianship Tribunal taking into account that the Public Guardian had no communication/access function and, further, in the circumstances, that GP wanted no further contact with the Appellants. Nevertheless, the Appellants embarked on an appeal process that was particularly onerous and expensive for a person who is elderly and infirm. GP was put to the expense of employing legal representation, when such funds could have been used for her maintenance and welfare. The appeal was centred primarily on the Appellants’ “social and intellectual comfort” rather than on GP’s welfare.
9 Mr Friend noted that the delay in the hearing of the appeal, as a result of the Appellants vacating the hearing on 5 August 2008, added to its futility. The Guardianship order lapsed on 4 April 2008 and the hearing was held on 24 October 2008. Although neither the Appellants nor their advisers were personally responsible for the factors giving rise to the delay, the effluxion of time reinforced the lack of need for a public guardianship order.
10 Finally, Mr Friend submitted that if the Appellants had cause to believe that HA had exerted undue influence over GP, it would have been more appropriate to have lodged a further application with the Guardianship Tribunal rather than raise this as an appeal point with the Appeal Panel.
11 For the above reasons, Mr Friend submitted that there were special circumstances and an order for costs was warranted.
The Appellants’ Submissions
12 The Appellants’ solicitor, Mr Fazio, noted that the Tribunal’s power to award costs is a discretionary one, referring to the Appeal Panel decision in Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12, at [90], discussed below.
13 Mr Fazio submitted there are no ‘special circumstances’ warranting an award of costs. The Appellants contended that the Guardianship Tribunal had made an error of law. Arguable cases were put forward by both parties. In its decision at [23], the Appeal Panel commended the quality of the Appellants’ submissions. The fact that the Appeal Panel did not accept the Appellants’ submission on the Public Guardian’s functions does not make the appeal ‘vexatious’ or establish special circumstances. The Appellants’ arguments were put forward in good faith and had a reasonable basis: Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27.
14 Mr Fazio said the Appeal Panel acknowledged that GP suffers from a mild cognitive impairment, which, the Guardianship Tribunal recognised, may prevent her from making important life decisions. At [26], the Appeal Panel noted that the Guardianship Tribunal’s statement of the relevant evidence and of the Tribunal’s reasoning was “overly brief” and without, for example, specific reference to section 14(2)(b) of the Guardianship Act 1987, regarding the importance of preserving the person’s existing family relationships. At [29], the Appeal Panel referred to the Public Guardian’s comment that it had proved “extremely difficult to make arrangements” to see GP, “involving a long process of negotiation”.
15 In further submissions filed on 3 February 2009, Mr Fazio noted that the delay in the hearing of the appeal by reason of the hearing on 5 August 2008 being vacated, was as a result of a deliberately lit fire in his offices, which destroyed a majority of client files and records. In such circumstances, the delay, being unforeseeable, was unavoidable.
16 Mr Fazio submitted that to award costs against the Appellants would cause them unnecessary hardship. They are not wealthy people, and have already expended a large sum on legal fees in what they perceived to be GP’s best interests, in raising what the Appeal Panel recognised to be some valid arguments. The Appellants conducted the appeal in an entirely appropriate, proper and reasonable manner. Their submissions were detailed and, although unsuccessful, of good quality. In these circumstances, it would not be appropriate to award costs against them. To do so would discourage individuals from using established administrative law procedures.
Discussion
17 The Tribunal’s normal expectation has been that the parties in Tribunal proceedings should bear their own costs. The Tribunal has not followed the usual approach in adversarial proceedings whereby the successful party can expect an order for costs. Pursuant to the former section 88 of the ADT Act, the Tribunal’s discretion to award costs could only be exercised where there were ‘special circumstances’ and where the special circumstances warranted an award of costs: see generally, Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39. In B & L Linings & anor v Chief Commissioner of State Revenue [2008] NSWADTAP 14, the Appeal Panel noted, at [55], that “no other Act or law” bears upon the Tribunal’s power under section 88, and at [56]:
“Special circumstances’ have been defined as ‘circumstances that are out of the ordinary, but without having to be extraordinary or exceptional’. It is not enough that the circumstances are ‘special’: they must also ‘warrant’ an order for costs.”
18 Mr Friend referred to the decision in Paras v Legal Services Commissioner (No 4) (LSD) NSWADTAP 39, at [14], where the Appeal Panel referred with approval to the Tribunal decision in New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174, at [14]:
“the Tribunal referred to submissions made to it as to the meaning of the phrase ‘special circumstances so warrant’ in s 171E(2) of the LP Act. The Tribunal expressed no disagreement with them. It stated that, according to these submissions, the phrase required
‘... something unusual or different about the case to take the matter out of the ordinary course, according to which the presumption that there be no costs order would be expected to apply, which renders that ordinary course apparently less appropriate or fair. But that does not require that the case be extremely unusual, uncommon or exceptional.”
19 Mr Fazio referred to the Appeal Panel decision in Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12, at [90]:
“The power to award costs is circumscribed. In keeping with the position found in many modern statutory tribunals, the usual rule is that costs are not to be awarded. This is a measure that has at least two objectives - one, to remove an impediment to the exercise of important rights that the Tribunal has been established to see protected where appropriate; two, to discourage the use of lawyers. In these ways the goals of affordable, accessible justice are seen as being supported. But circumstances can arise in proceedings where a party should be given some compensation by way of a costs order. The ‘special circumstances’ power allows the Tribunal to take that action.”
20 The Tribunal’s Practice Note No 12 also provided examples of special circumstances that might justify a costs order pursuant to section 88(1).
21 As a result of the Amendment Act, a new section 88 of the ADT Act, set out above, took effect on 1 January 2009. Section 88(1) provides that each party to proceedings before the Tribunal is to bear their own costs except as provided by the section. Section 88(1A) states that subject to the rules of the Tribunal or to 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 matters specified in paragraphs (a) to (e) of that subsection. Paragraphs (a) and (b) focus on the conduct of the parties in the proceedings, paragraph (c) refers to the relative strengths of the claims made by the parties, paragraph (d) to the nature and complexity of the proceedings, and paragraph (e) to any other matter that the Tribunal thinks fit.
22 The Appeal Panel accepts that the Appellants acted in good faith in what they perceived to be GP’s best interests. The background to these proceedings is acrimony arising out family law proceedings that resulted in the sale of GP’s former family home, and which has resulted in GP declining any contact with the Appellants. The Guardianship Tribunal stated at pages 3 to 4 of its decision:
“The Public Guardian recommended that the access function be allowed to lapse. It is of the view that it is not in [GP’s] interests to implement the access function in a way which would compel her to have contact with her daughter and son. The Public Guardian gave evidence of concerted efforts to persuade [GP] to reinstate contact with her children. It was evident to the Tribunal that her children sincerely desire to renew contact, and have their mother’s best interests at heart. Despite this, [GP] was adamant that she no longer wishes to have any contact with her children, apart from [HA]. Although this is clearly very painful for her children, it was not considered to be [GP’s] best interest to compel her to make contact.”
23 The Appeal Panel also accepts that the Appellants had an ‘arguable case’. Indeed, as Mr Fazio pointed out, at [23] of our decision we commended the quality of the Appellants’ submissions. Moreover, in our decision at [26], we stated that although we were satisfied that the Guardianship Tribunal undertook a proper process of evaluation of the relevant matters, the Tribunal’s discussion of the importance of preserving family relationships was “overly brief” in terms of its statement of the relevant evidence and of the Tribunal’s reasoning.
24 We reject Mr Friend’s submission that the appeal was vexatious, noting discussion of the meaning of ‘vexatious’ in, for example, Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 (see, for example, Deane J at 247), Commissioner of Police, NSW Police v LZ (GD) [2008] NSWADTAP 22, and the recently enacted Vexatious Proceedings Act 2008, where, at section 6, the following (non-exclusive) definition appears:
6 Meaning of “vexatious proceedings”
In this Act, “vexatious proceedings” includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. The proceedings were not “productive of serious and unjustified trouble and harassment”
In our view, the appeal proceedings instituted by the Appellants were not vexatious in the sense ordinarily understood by courts and tribunals.
25 Mr Friend referred to the delay in the hearing of the appeal caused by the Appellants vacating the hearing scheduled for 5 August 2008. We note this arose from a deliberately lit fire at Mr Fazio’s premises on 15 July 2008, which caused severe damage to the premises and its contents, and we accept that this seriously affected his ability to prepare for the hearing. While it is true that the effluxion of time in this case could be said to undermine the Appellants’ case, in so far as there is no evidence that GP’s interests have been detrimentally affected by the absence of a guardianship order, this does not, in itself, make such proceedings futile. The provisions of the Guardianship Act 1987 and the ADT Act establish an appeal mechanism providing for the external review of appealable Guardianship Tribunal decisions by the Appeal Panel. This mechanism was open to the Appellants in this case.
26 Mr Fazio submitted that the ADT Act was “designed to encourage participation of individuals in making administrative procedures accountable and accessible”. The objects of the ADT Act stated in section 3 include ensuring that “the Tribunal is accessible” (s 3(b)), fostering “an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs” (s 3(f)), and promoting and effecting “compliance by administrators with legislation enacted by parliament for the benefit of the citizens of New South Wales” (s 3(g)).
27 As the Appeal Panel recognised in Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27, at [46], if costs were to follow the event so that unsuccessful applicants always had to pay the costs of the opposing party, this would have the effect of discouraging applicants applying to the Tribunal. In our view, section 88(1), stating the normal requirement that the parties to proceedings before the Tribunal will bear their own costs, is consistent with the objects stated in section 3. The Tribunal’s discretion to award costs is the exception to the general position, and may only be exercised where it is fair to do so having regard to the matters referred to in paragraphs (a) to (e) of section 88(1A).
28 The Appeal Panel is not satisfied that we should exercise our discretion to depart from the normal requirement that the parties should bear their own costs. We are not satisfied that it would be fair to do so. With regard to the matters referred to in paragraphs (a) to (e) of section 88(1A), we are of the view that the Appellants conducted themselves properly in these proceedings and did not unnecessarily disadvantage another party by their conduct. The adjournment sought was as a result of the fire at their solicitor’s premises and was not through any fault of the Appellants’. As stated above, the Appeal Panel rejects the Second Respondent’s contention that the proceedings were vexatious.
29 The Appeal Panel finds the Appellants did not unreasonably prolong the proceedings. We are of the view that they had an arguable case. The proceedings were not unduly complex and there are no other matters the Appeal Panel considers relevant to the question whether it would be fair for the Panel to exercise its discretion in making an award of costs.
30 In conclusion, the Appeal Panel is not satisfied, in terms of the section 88 discretion, that it would be fair to make an award of costs. The Second Respondent’s application for costs is therefore refused.
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