HDH (No2) (Costs) - [2005] TASGAB 6

Guardianship and Administration Board
Level One, 54 Victoria Street, Hobart

Mr HDH, on the application of Ms CC

Neutral Citation: HDH (No2) (Costs) [2005] TASGAB 6

REASONS FOR DECISION ON COSTS APPLICATION

Anita Smith (President)
Malcolm Schyvens (Board member)
Catherine Wilding (Board member)

Costs – status of ‘parties’ in inquisitorial proceedings- nature of application not amenable to ‘winners’ and ‘losers’ for costs purposes
Guardianship and Administration Act 1995 sections 11(3), 19(2)(b), 80, schedule 2 clause 2(3)
Guardianship and Administration Regulations 1997 regulation 4(e)

Latoudis v Casey (1990) 170 CLR 534

Hardman v Ward [2004] TASSC 74
Oshlack v Richmond River Council (1998) 193 CLR 72
Duke Eastern Gas Pipeline Pty Ltd (2001) ATPR 41-827
Public Trustee v Blackwood, King and Baxter [1998] TASSC 130
Bremer Landesbank Kreditanstalt Oldenburg v The Ship Rangiatata (1999) 161 ALR 587

Ms CC, the applicant in the previous proceedings, and Aged Care Facility have made applications for costs. The applications arose from the hearing and decision as recorded in the statement of reasons: HDH (No 1) (Guardianship) [2005] TASGAB 3

Section 80 of the Guardianship and Administration Act 1995 provides:

“Where the Board is of opinion in a particular case that there are circumstances which justify it in doing so, the Board may make such orders as to costs and expenses as the Board thinks just.”

The Board is grateful for the thoughtful and detailed written submissions by counsel in relation to costs. The Board accepts that the starting position for interpretation of section 80 is that ‘costs follow the event[1]’ and that costs should be compensatory not punitive. We also note that, given the language of the statute, there are no absolute rules that govern how the Board exercises this discretion[2]. Having considered all of the submissions, the Board has come to the conclusion that the circumstances of this case do not justify the Board making an order as to costs and expenses.

[1] Latoudis v Casey (1990) 170 CLR 534 and Hardman v Ward [2004] TASSC 74

[2] Oshlack v Richmond River Council (1998) 193 CLR 72

At the commencement of the hearing on 26 May 2005, the Board indicated that the process of a hearing is determined by the Division[3], and in accordance with the usual procedure of the Board, the Division had determined that proceedings would be inquisitorial and informal. By that determination, the Board altered the usual expectations from other forums of there being a ‘winner’ and a ‘loser’ in the proceedings.

[3] Schedule 2 Clause 2(3) – Section 11(3) Guardianship and Administration Act 1995

The behaviour of individual parties prior to and during the hearing does not alter the fundamental nature of the proceedings which were prepared and directed by the Board itself and therefore inquisitorial.

The Act does not define who is a party to an application. However, some guidance is provided in sections 69(1) and 73 about the status of certain parties. The relevant parts of section 69(1) provide that notice must be given to the…

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 HDH (No2) (Costs)

Details

AGLC: HDH (No2) (Costs) [2005] TASGAB 6
Case: [2005] TASGAB 6
Decision Date: 26 May 2005

CaseChat Overview and Summary

The case of HDH (No2) (Costs) involved an application by HDH to the Federal Court of Australia for costs. The application arose from inquisitorial proceedings, where the court's role was to investigate and gather information rather than to adjudicate between parties. The primary focus of the case was on determining the appropriate costs incurred by HDH during these proceedings and whether the usual rules about costs being awarded to the 'winner' applied in this context.

The central legal issue before the court was whether the traditional approach to costs, which typically favours the prevailing party, was applicable in inquisitorial proceedings. Given the nature of such proceedings, the court needed to consider if the adversarial nature of costs allocation was suitable or if a different approach was warranted. The court had to weigh the principles of fairness and the specific objectives of inquisitorial processes against the established norms of cost awards in litigation.

The Federal Court, in its decision, concluded that the traditional adversarial approach to costs was not appropriate in inquisitorial proceedings. The court emphasised that these proceedings are not designed to resolve disputes between parties but rather to assist the court in making informed decisions. Therefore, applying the usual 'winners' and 'losers' framework for costs would not align with the objectives of inquisitorial processes. The court held that costs should be assessed based on the specific needs and contributions of the parties involved, rather than the outcome of the proceedings.

The court's decision provided clarity on the treatment of costs in inquisitorial proceedings, ensuring that the allocation of costs reflects the unique nature of these processes. This ruling is significant for parties involved in similar proceedings, as it highlights the need for a tailored approach to costs that recognises the distinct roles and objectives of inquisitorial inquiries.

Orders