GN v Public Guardian

Appeal Panel - External

CITATION:

GN & anor v Public Guardian & anor [2009] NSWADTAP 6

PARTIES:

FIRST APPELLANT
GN

SECOND APPELLANT
GO

FIRST RESPONDENT
Public Guardian

FILE NUMBER:

088005

HEARING DATES:

On the papers

SUBMISSIONS CLOSED:

15 January 2009

 
DATE OF DECISION: 

19 February 2009

BEFORE:

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 2008

CASES 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 22

REPRESENTATION:

APPELLANTS
P Fazio, solicitor

FIRST RESPONDENT
No appearance

SECOND RESPONDENT
S Friend, solicitor

ORDERS:

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…