People with Disability Australia Incorporated v The Minister for Disability Services

Case •

[2013] NSWADT 92

•

29 April 2013

Administrative Decisions Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: People with Disability Australia Incorporated v The Minister for Disability Services [2013] NSWADT 92
Hearing dates:On the papers
Decision date: 29 April 2013
Jurisdiction:Community Services Division
Before: S Higgins, Deputy President
Decision:

No orders as to costs.

Catchwords: Costs - applications withdrawn/dismissed - whether conduct of party disadvantaged the other party - unmeritorious interlocutory applications - delay - application of para 5(1)(b) of the Community Services (Complaints, Review and Monitoring) Act 1993 - failure to particularise claim and orders sought
Legislation Cited: Administrative Decisions Tribunal Act 1997
Community Services (Complaints, Review and Monitoring) Act 1993
Community Services (Complaints, Review and Monitoring) Regulations 2004
Disability Services Act 1993
Cases Cited: People With Disability Australia Incorporated v The Minister for Disability Services [2012] NSWADT 33
People With Disability Australia Incorporated v The Minister for Disability Services & Anor [2011] NSWCA 253
People With Disability Australia Incorporated v The Minister for Disability Services [2011] NSWADT 100
Minister for Disability Services v People With Disabilities Australia Inc. (CSD) [2010] NSWADTAP 44
People With Disability Australia Incorporated v The Minister for Disability Services [2009] NSWADT 259
People with Disabilities (NSW) Inc v Minister for Disability Services Nos 061 & 195 of 1998 (CST, 12 February 1998) and People with Disabilities (NSW) Inc v Minister for Disability Services Nos 067 & 194 of 1997 (CST, 17 March 1998)
Category:Costs
Parties: People with Disability Australia Incorporated (applicant)
The Minister for Disability Services (respondent)
Representation: Counsel
R Francois (Applicant)
JK Kirk SC with R Graycar (Respondent)
Gilbert &Tobin, solicitors for the applicant
Crown Solicitor for the respondent
File Number(s):104009 114019 114020 114040

reasons for decision

Introduction

  1. On 11 October 2012, at a directions hearing, the applicant (People with Disabilities Australia Incorporated) withdrew its four review applications (file number 104009, 114040, 114019 and 114020), subject to an application for costs. The respondent Minister also indicated that it would make an application for costs.

  1. The applicant withdrew each application for review on the grounds that the respondent had formally advised that it would rely on subs 5(1)(b) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (CS(CRM) Act), in the event the applicant pursued its applications.

  1. By consent, I made orders dismissing the applicant's applications, subject to any orders as to costs. Orders were also made for each party to file and serve written submissions on costs, and submissions in reply (if any). I also made an order that each party's application for costs be determined on the papers pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

  1. The parties filed and served comprehensive written submissions on costs. In support of their submissions each party also filed and served a number of documents.

  1. The applicant seeks an order that the respondent pay its costs of and incidental to application file number 104009, 114019, 114020 and 114040 (these proceedings, or these applications).

  1. The respondent seeks an order that the applicant pay its costs in these proceedings.

  1. For the reasons set out below, I am not satisfied that it is appropriate, in the circumstances of these applications, to make an order for costs in favour of either party.

History of the proceedings before the tribunal

  1. Application File number 104009 (Wadalba) - On 21 May 2010, the applicant, lodged its application for review of the decision of the respondent Minister, 'to fund' the Sunnyfield Association to provide services and accommodation, at Wadalba Group Homes, for people with intellectual disabilities exiting from the Peat Island Centre. The applicant contends the services were 'designated services' within the meaning of s 4 of the Disability Services Act 1993 (DS Act), which failed to conform with the objects of that Act and the principles and application of those principles as set out in Schedule 1. The applicant went on to contend, as a consequence of this failure, the respondent had breached his duties under subs 10(2) and 12(2) of the DS Act.

  1. Application file number 114019 and 114020 (Casuarina Grove and Norton Road) - On 6 June 2011, the applicant made two further applications, seeking review of the decision of the respondent:

(a) to relocate residents with intellectual disabilities from Peat Island Centre to new accommodation at the Casuarina Grove Group Homes and to operate the services at those Homes (file number 114019), and

(b) to relocate residents with intellectual disabilities from the Lachlan Centre to new accommodation at the Norton Road Group Homes (file number 114020); and

to operate the services at these Homes in a manner that did not conform to the objects set out in the DS Act and the principles and application of those principles as set out in Schedule 1 of that Act. Again the applicant contends that the services were 'designated services' and the respondent, by providing funding for those services had breached his statutory duty in subs 6(1) of the DS Act.

  1. Application file number 114040 (Summer Hill) - Previously, in December 2009, the applicant had lodged an application seeking review of the 'conduct' of the respondent in 'continuing to provide' 'designated services', at the Summer Hill Group Homes (file number 094045): see clause 5(1)(b) of the Community Services (Complaints, Review and Monitoring) Regulations 2004 (CS(CRM) Regulations). The applicant contends that the 'designated services' did not conform with the objects of the DS Act and the principles and application of those principles set out in Schedule 1 of that Act and by continuing to provide the services, the respondent was in breach of his duty in subs 6(1) of the DS Act.

  1. The Summer Hill Group Homes were opened, in 2009, on the grounds of the Grosvenor Centre, which had been the subject of an earlier review application by the applicant (file number 094003). That application sought review of a decision of the respondent to continue to provide 'designated services' to persons with an intellectual disability accommodated at the Grosvenor, Peat Island and Lachlan Centres. The respondent contends that the tribunal had no jurisdiction to hear and determine that application as (a) the applicant had no standing to bring the application and (b) the applicant had failed to identify a decision that was a reviewable decision. The tribunal, in an extempore decision (10 August 2009), found that the applicant had identified a decision that was a reviewable decision. Subsequently, the tribunal, differently constituted, found that the applicant had standing to bring the application: see People With Disability Australia Incorporated v The Minister for Disability Services [2009] NSWADT 259. Following this decision of the tribunal, the applicant filed its application for review in regard to the Summer Hill Group Homes (i.e. file number 094045). By consent, the progress of that application was held in abeyance, pending the decision of the Appeal Panel on the respondent's appeal from the tribunal's decision in regard to the applicant's Grosvenor, Peat Island and Lachlan Centres review application.

  1. On 28 June 2010, the Appeal Panel upheld the respondent's appeal in regard to the Grosvenor, Peat Island and Lachlan Centres. The appeal succeeded on a point of construction of the meaning of 'decision' in clause 5(1)(b) of the CS(CRM) Regulations: see Minister for Disability Services v People With Disabilities Australia Inc. (CSD) [2010] NSWADTAP 44 at [42]. That is, the Appeal Panel found that there was no 'decision' to which the applicant's application for review related, as the application was premature. However, the Appeal Panel went on to indicate that it would have dismissed the respondent's appeal in regard to the applicant's standing had it found that there was a decision that was reviewable.

  1. On the basis of the decision of the Appeal Panel, the respondent made an application seeking orders that the applicant's application in regard to the Summer Hill Group Homes be dismissed (file number 094045). It also sought dismissal of the applicant's application in regard to the Wadalba Group Homes (file number 104009). On 11 May 2011, I made orders dismissing the applicant's application in regard to the Summer Hill Group Homes: People With Disability Australia Incorporated v The Minister for Disability Services [2011] NSWADT 100. In reaching my decision, I applied the reasoning of the Appeal Panel in regard to the meaning of the word 'decision': see at [28]. The applicant appealed this decision to the Appeal Panel.

  1. The applicant had also appealed, to the Court of Appeal, the decision of the Appeal Panel in regard to the Grosvenor, Lachlan and Peat Island Centres. On 30 August 2011, the Court of Appeal set aside the decision of the Appeal Panel: see People With Disability Australia Incorporated v The Minister for Disability Services & Anor [2011] NSWCA 253. The Court of Appeal was critical of both parties in failing to inform it, prior to the hearing of the appeal, that the Centres the subject of the appeal had all been closed: see at [6] per Allsop P and at [10] per Beasley JA. I note that the applicant/appellant pressed the appeal in light of its application before the tribunal in regard to the Summer Hill Group Homes.

  1. In light of the decision of the Court of Appeal, by consent, on 18 October 2011, the Appeal Panel set aside my decision in regard to the Summer Hill Group Homes and the matter was re-listed before me with a new file number 114040.

  1. A summary of the progress of these proceedings is as follows:

a) 9 November 2010 - hearing of the respondent's interlocutory application for the dismissal, for want of jurisdiction, of the applicant's applications in file number 104009 and 09404 (Wadalba Group Homes and Summer Hill Homes);
b) 11 May 2011 - publication of decision in regard to the respondent's interlocutory application in file number 104009 and 09404: see [2011] NSWADT 100 (supra). As I have mentioned, the application in regard to the Summer Hill Group Homes (file number 094045) was dismissed. In regard to the application concerning the Wadalba Group Homes (file number 104009), I determined that it was arguable that the decision of the respondent was a decision made in the purported exercise of a function conferred on the respondent under the DS Act: see [2011] NSWADT 100 (supra) at [40] and subs 6(2) of the ADT Act. As this was an issue not previously raised, I made orders for the filing and serving of written submissions on this issue before making a final determination;
c) 5 July 2011 - the respondent filed and served its section 58 documents (i.e. those documents the respondent considered to be relevant to the determination of the applicant's application for review) in regard to Norton Road Group Homes and Casuarina Grove Group Homes (file number 114019 and 114020);
d) 7 July 2011 - first directions hearing for application file number 114019 and 114020. The respondent sought orders that the applicant file and serve 'particulars' and evidence. The applicant contends that it had provided particulars previously. After hearing short arguments from both parties I made orders, along the lines sought by the respondent, as follows:
1. The applicant is to file and serve documents by 29 July 2011 setting out:
a. Outline of the ways in which it says the "Services do not conform to the objects of the [DS Act] set out in Section 3 and the principles and application of the principles set out in Schedule 1 of the Act."
b. Outline of the ways in which it says the respondent "is in breach of his statutory duty in section 6(1) of the [DS Act]."
c. The relief sought by the applicant.
2. The applicant to file and serve any lay evidence, by 21 September 2011,
3. Matter listed for directions on 29 September 2011 at 10 am, and
4. Liberty to restore the matter on 3 days notice.
e) 29 July 2011 - directions hearing for application file number 104009 (Wadalba Group Homes). Orders were made for the respondent to file and serve a copy of submission AH 09/66711, as referred to in his written submissions, concerning the outstanding issue as to whether the decision the subject of review had been made by the respondent in the exercise of his purported function under the DS Act. Orders were also made for the respondent to file and serve written submissions in reply on the outstanding jurisdiction issue, which was to be determined pursuant to s 76 of the ADT Act;
(f) 22 September 2011 - applicant filed and served its lay evidence (5 statements);
g) 29 September 2011 - directions hearing in regard to Norton Road Group Homes and Casuarina Grove Group Homes (file number 114019 and 114020). By consent, orders were made for the respondent to file and serve his lay evidence (i.e. by 25 November 2011) and the filing and serving of expert evidence (9 December 2011 for the applicant and 13 February 2012 for the respondent). Both matters were adjourned for further directions on 1 March 2012, which was subsequently vacated (by consent) and a new directions date of 12 April 2012 was set;
h) 10 November 2011 - directions hearing in regard to the Summer Hill Group Homes (file number 114040). By consent orders were made for the applicant to file and serve particulars as to those aspects of the decision for which it sought review (i.e. by 11 November 2011) and its lay and expert evidence (i.e. 9 December 2011 and 27 February 2012). The matter was set down for further directions on 12 March 2013;
i) 28 and 29 November and 1 December 2011 - respondent filed and served his lay evidence in regard to the Norton Group Homes and the Casuarina Grove Homes;
j) 9 December 2011 and 25 January, 27 and 28 February 2012 the applicant filed and served its lay and expert evidence;
k) 2 March 2012 - publication of the interlocutory decision concerning the issue of jurisdiction in application file number 104009 (Wadalba Group Homes): see People With Disability Australia Incorporated v The Minister for Disability Services [2012] NSWADT 33;
l ) 12 March 2012 - adjourned directions hearing of application file number 114040 (Summer Hill Group Homes). By consent, orders were made extending the time within which the applicant was to file and serve its expert evidence (i.e. to 23 March 2012). Orders were also made for the respondent to file and serve its s 58 documents and its lay and expert evidence (i.e. 11 April and 1 June 2012). The application was adjourned for further directions on 12 April 2012;
m) 13 March 2012 - applicant filed and served an additional report of its expert;
n) 12 April 2012 - directions hearing for all four matters. By consent, an order was made that all 4 matters would be determined and heard together and that the evidence in one would be evidence in the others. Orders were also made for the filing of further lay evidence and expert evidence by the parties and that the matters were to be adjourned for directions on 13 July 2013 for the purpose of setting a hearing date. Subsequently, by consent the directions date was vacated and a new directions date of 23 August 2012 was set;
o) 27 April 2012 - applicant filed and served an additional expert report. The respondent filed and served its s 58 documents (6 volumes) in regard to the Summer Hill Group Homes;
p) May 2012 - 7 May the applicant filed and served a further statement of a lay witness. On 15 May the respondent filed and served its s 58 documents (3 volumes) in regard to the Wadalba Group Homes;
q) June and July 2012 - the respondent filed and served its lay and expert evidence. The expert evidence was filed on 31 July 2012;
r) 23 August 2012 - directions hearing for all matters. The applicant sought a further adjournment of the directions hearing in light of recent exchanges of correspondence between the parties concerning the application of subs 5(1)(b) of the CS(CRM) Act to these applications. The respondent consented to the adjournment and the matter was listed for further directions on 11 October 2012. As I have mentioned, at this adjourned directions date, the applicant withdrew each application.

Relevant legislation

  1. There is no dispute that the relevant provision governing the tribunal's power to award costs is that contained in s 34 of the CS (CRM) Act. That section provides as follows:

34 Costs
(1) The Tribunal may, if in the particular circumstances of the case it is of the opinion that it is appropriate to do so, make orders with respect to the payment of costs of proceedings before it.
(2) Any such costs may be recovered as a debt.
(3) A certificate purporting to be signed by the Registrar of the Tribunal and containing a statement as to any matters relating to the award of costs under this section is admissible as evidence of those matters.
(4) This section applies despite the provisions of section 88 (Costs) of the Administrative Decisions Tribunal Act 1997.

  1. As pointed out by the parties, s 34(1) confers a discretion on the tribunal to make orders with respect to the payment of the costs of proceedings brought before it under the CS(CRM) Act. There is no dispute that the applicant's proceedings were brought under that Act: see s 28(1)(a) of the CS(CRM) Act and s. 20 of the DS Act.

  1. S 5 of the CS(CRM) Act prescribes certain restraints on a determination of an issue under that Act and any decision arising from the operation of the Act. That section relevantly provides:

5 Administration of community welfare legislation
(1) The determination of an issue under this Act, and any decision or recommendation on a matter arising from the operation of this Act, must not be made in a way that is (or that requires the taking of action that is):
(a) beyond the resources appropriated by Parliament for the delivery of community services, or
(b) inconsistent with the way in which those resources have been allocated by the ..., the Minister for Disability Services, ... the Director-General of the Ageing and Disability Department in accordance with Government policy, or
(c) inconsistent with Government policy, as certified in writing by ..., the Minister for Disability Services and notified to the Tribunal, Commission or other person or body making the determination.
(2) This section does not apply to the exercise of any function of the Ombudsman under this Act.

  1. It should be noted that the tribunal has not made any determination as to whether the restraint, as set out in para 5(1)(b) of the CS(CRM) Act, applied to these proceedings. Nevertheless, it is the position of the parties that it would have applied had the applications proceeded to hearing.

  1. It is convenient to deal with each application for costs separately.

Applicant's application for costs

  1. The applicant seeks an order that the respondent pay its costs of and incidental to these applications on the basis of the respondent's conduct in these and earlier proceedings. The applicant asserts that the respondent's conduct in these and the earlier proceedings has caused significant and unnecessary delay and resulted in the applicant incurring considerable and unnecessary costs. The respondent's conduct, as identified by the applicant, can be summerised as:

  • (a)the making of unmeritorious applications as to jurisdiction and standing in these proceedings and earlier proceedings;
  • (b)delays in filing and serving evidence, and
  • (c)the ongoing failure to clarify whether Stronger Together: A new direction for disability services NSW 2006-2016 would be certified as Government policy under subs 5(1)(c) of the CS(CRM) Act.

  1. It is the applicant's contention that the above conduct of the respondent was also contrary to his obligations, as a government agency, under the NSW Government's Model Litigant Policy (Model Litigant Policy). That Policy, as pointed out by the applicant, required the respondent to:

(a) deal with claims promptly and not causing unnecessary delay in the handling of claims and litigation (para 3.2(a)),

(b) endeavour to avoid litigation, wherever possible (para 3.2(d)),

(c) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum (para 3.2(e)), and

(d) not relying on technical defences unless the interests of the State or agency would be prejudiced by the failure to comply with a particular requirement (para 3.2(g)).

  1. Unmeritorious applications -In regard to this ground, the applicant relies on the unsuccessful interlocutory dismissal applications the respondent had made in regard to the Grosvenor, Lachlan and Peat Island Centres, the Summer Hill Group Homes and the Wadalba Group Homes. These applications, the applicant contends were technical in nature and hence made in contravention of the Model Litigant Policy. As I have explained, the interlocutory applications made by the respondent concerned two main issues: (a) an issues of construction as to the meaning of the word 'decision' in subs 6(1) of the ADT Act and para 5(1)(b) of the CS(CRM) Regulations and (b) an issue as to the applicant's standing to make the application (i.e. whether the applicant was an interested person within the meaning of para 55(1)(a) of the ADT Act).

  1. In regard to the issue of standing, the applicant contends that this issue was particularly unmeritorious in light of the 1998 findings of the former Community Services Appeals Tribunal, that the applicant had standing to seek review of decisions of the respondent under the DS Act: see People with Disabilities (NSW) Inc v Minister for Disability Services Nos 061 & 195 of 1998 (CST, 12 February 1998) and People with Disabilities (NSW) Inc v Minister for Disability Services Nos 067 & 194 of 1997 (CST, 17 March 1998).

  1. The respondent contends that the applicant's contentions were misconceived. It argued that the earlier proceedings, concerning the Grosvenor, Lachlan and Peat Island Centres, were of no relevance to these proceedings. The respondent also contends that the interlocutory applications were entirely appropriate as they concerned matters going to the tribunal's jurisdiction to hear and determine the applicant's applications for review.

  1. As a matter of construction, I agree with the respondent's contentions in that an award of costs, if any, under s 34 of the CS(CRM) Act, can only be made in respect of the costs incurred by a party in the course of the proceedings in which the application for costs has been made. However, this does not mean that evidence of conduct by a party in previous proceedings is also automatically excluded. Subject to relevance, that evidence, in my view could be considered in a subsequent application for costs in other proceedings. I also accept that the issues raised by the respondent in the interlocutory applications were matters relating to the tribunal's jurisdiction. However, this alone does not mean that the applications were appropriately made.

  1. In regard to the Model Litigation Policy, the respondent pointed to para 3.3 of that policy, which provides:

The obligation [i.e. those set out in para 3.2] does not require that the State or an agency be prevented from acting firmly and promptly to protect its interests. It does not prevent all legitimate steps being taken in pursuing litigation, or from testing or defending claims made.

  1. As I have pointed out, the issue as to the proper construction of the meaning of the word 'decision' in para 5(1)(b) of the CS(CRM) Regulations was initially raised in proceedings, other than those that are the subject of this decision. While the applicant was ultimately successful on this issue in its appeal before the Court of Appeal, at no time had the tribunal, the Appeal Panel or the Court of Appeal suggested that the construction pressed by the respondent was unmeritorious. On the contrary, the respective reasons for decision indicate that there were arguable points to be made on this issue. In so far as this issue was relevant to the Summer Hill Group Homes, no fresh arguments were made as reliance was placed on the decision of the Appeal Panel (see [2010] NSWADTAP 44) and then the Court of Appeal (see [2011] NSWCA 253 (supra)).

  1. In regard to the issue of standing, I note that the respondent's challenges to the applicant's standing before the former Community Services Appeals Tribunal were brought under para 40(1)(d) of the then Community Services (Complaints, Appeals and Monitoring) Act 1993. While there are similarities in the terms of the repealed paragraph and section 28 of the CS(CRM) Act, the tribunal, in determining whether the applicant had standing to bring its application concerning the Grosvenor, Peat Island and Lachlan Centres did not suggest that the respondent's challenge to the applicant's standing was unmeritorious, in light of the earlier unsuccessful challenge: see [2009] NSWADT 259. As I have indicated, the respondent did not pursue this issue following the decision of the Appeal Panel in 2010. Accordingly, I am unable to find that this challenge by the respondent was unmeritorious.

  1. This leaves the interlocutory application by the respondent in regard to the Wadalba Group Homes (file number 104009). In my view, as I had expressed during a directions hearing, the respondent's approach to this review application was very adversarial. Unlike the earlier proceedings concerning the Grosvenor, Lachlan and Peat Island Centres, the decision the subject of review was a decision, publicly announced by the respondent in a press release, for a new facility for people with a disability. Yet the respondent's position was that the decision was not made, nor purportedly made under the DS Act. In my view, in essence, the position of the respondent was technical in nature. The respondent was also reluctant to provide any internal documentation that evidenced the decision that had been made and the basis on which it was made. As a consequence, orders had to be made for the filing and serving of that material.

  1. Although I agree with the applicant that the respondent's position in regard to the Wadalba Group Homes application was technical in nature, I am unable to make a finding that it was entirely unmeritorious.

  1. As I have explained, this approach of the respondent in regard to the Wadalba Group Homes resulted in some delay in the progress of that application. However, that delay was also tied up with the delays arising from the earlier 2009 proceedings concerning the Grosvenor, Lachlan and Peat Island Centres and the 2009 proceedings concerning the Summer Hill Group Homes.

  1. Delays - as pointed out by the applicant, the various challenges by the respondent to jurisdiction resulted in the proceedings being delayed. However, for the reasons I have already stated, these challenges were not unmeritorious. Other than the challenge in regard to the Wadalba Group Homes, these challenges were made in proceedings that are not the subject of this cost decision. The jurisdiction challenge in the Wadalba Group Homes application, as I have explained did not of itself cause an unnecessary delay.

  1. The applicant also asserts that the respondent delayed in filing and serving his evidence. However, the applicant did not provide any specifics in this regard. As I have pointed out, orders for filing and serving of evidence were made, by consent, and extensions of time to file and serve evidence was extended to both parties.

  1. Subs 5(1) of the CS(CRM) Act - the applicant said that it first raised this issue with the respondent in a letter, dated 6 November 2009. At the time the only proceedings before the tribunal was the application concerning the Grosvenor, Lachlan and Peat Island Centres. In that letter, the applicant said:

'... can you please confirm by 4.00pm on 19 November 2009 whether the Minister:
1. will argue that the plan outlined in Stronger Together: A new direction for disability services in NSW 2006-2016 justifies the Minister's decision to continue to operate the centres in a manner which does not conform with the [DS Act]; and
2.intends in writing to certify Stronger Together: A new direction for disability services in NSW 2006-2016 as Government policy for the purpose of section 5(1)(c) of the [CS(CRM) Act].
The Minister's position on the first issue is necessary for the preparation of our client's expert evidence, which is currently being prepared on the basis that Stronger Together: A new direction for disability services in NSW 2006-2016 is the basis on which the Minister intends to justify his decision. ...
The Minister's position on the second issue is necessary to determine whether our client should pursue the current ADT proceedings or consider relief from the NSW Supreme Court to require the Minister to comply with his duties.

  1. I understand that 'Stronger Together: A new direction for disability services NSW 2006-2016' (Stronger Together policy), was a 10-year plan, announced by Government, in 2006, for changes in the NSW disability services system. The plan involved the closure, overtime, of the existing Large Residential Centres and the re-development of some of these as specialist support services (e.g. the Grosvenor Centre, which was re-developed into the Summer Hill Group Homes).

  1. The applicant said that it did not receive a written response to the questions asked and as a consequence it lodged these applications (i.e. file numbers 94045 (now 114040), 104009, 114019 and 114020) and filed evidence on the understanding that the respondent 'did not rely on Stronger Together as government policy for the purpose of s 5 of the [CS(CRM) Act]'. The applicant went on to submit that its position 'has always been' that it would not have lodged these applications, or filed evidence in support of those applications, if the relief it sought was not available in the tribunal. As I have indicated, whether the relief sought by the applicant was or was not available in the tribunal has not been tested. However, the applicant and the respondent have agreed that this would have been the case if the applications had proceeded.

  1. On 18 May 2012, the applicant again sought clarification on these issues. The respondent replied on 9 July 2012. In that reply the respondent said:

'... [I] note also Stronger Together forms part of the Government policy to which s. 5(1)(b) of the [CS(CRM) Act] refers.'

  1. The applicant contends that whether the respondent relied on the Stronger Together policy as Government policy to which para 5(1)(b) refers, or whether the respondent had certified the Stronger Together under para 5(1)(c), the result was the same for the applicant. I understand this to mean that, regardless of which position the respondent took, the position was the same for the applicant in that it would not have lodged these applications, or filed evidence in support of those applications, had the respondent informed it of its position about the Stronger Together policy earlier. This was information, the applicant asserts, to have been information solely within the knowledge of the respondent.

  1. Again, the applicant contends that this alleged failure of the respondent to inform it of his position in regard to the Stronger Together policy was contrary to the Model Litigant Policy.

  1. The respondent contends that while the respondent had not certified the Stronger Together policy under para 5(1)(c) of the CS(CRM) Act, that paragraph had clearly been put into issue by the respondent as early as 5 July 2011 when the respondent filed its s 58 documents in regard to the Norton Road and Casuarina Grove Group Homes. Included in these documents was a copy of the Stronger Together policy and relevant resource documentation for these Homes. In regard to the resource information, the respondent asserts that this information, in part, has always been publicly available on the Department's website. The respondent also pointed to the statement of Jim Moore, filed on behalf of the respondent, on 1 December 2011. In that statement Mr Moore referred to the Stronger Together policy and its application to these Homes.

  1. The respondent also contends that the applicant was, or should have been fully aware of the operation of para 5(1)(b) of the CS(CRM) Act as this had been an issue in the 1997 application the applicant had brought in the former Community Services Appeals Tribunal, seeking review of a decision of the respondent in respect to the Greystanes Centre (see Nos 067 & 194 of 1997 (CST, 17 March 1998) (supra) at [7.14]). I note that what was in issue in that application was the respondent's decision in regard to a transition plan made pursuant to the DS Act. In that decision, the Tribunal President, Nancy Hennessy (as she then was) found that:

The Tribunal's decision to set aside the Minister's decision and for Greystanes to prepare an amended transition plan, is not beyond the resources appropriated by Parliament for the delivery of community services nor is it inconsistent with the way in which those resources have been allocated. The issue of the cost of providing supported accommodation or other services for the current consumers of Greystanes is not relevant to the present proceedings. The Minister's obligation is to approve only those plans which comply with the requirements of the DSA. While funding issues are of considerable importance to government, the Tribunal must apply and interpret the standards set down in the legislation

  1. In my view, at all times, it was incumbent on both parties to have regard to the restraints set out in subs 5(1) of the CS(CRM) Act. The fact that the respondent did not certify the Stronger Together policy under para 5(1)(c) was not the end of the matter. Had the respondent done so it would have clarified the issue in regard to the jurisdiction of the tribunal to hear and determine the applicant's applications the subject of this decision. However, there was no obligation on the respondent to do. Nevertheless, it is clear from the terms of the applicant's letter of 6 November 2009, that it proceeded with its earlier application and these applications on the basis that the decisions the subject of review were made in accordance with the Stronger Together policy. That policy, and the decisions the subject of review were clearly far reaching and had the potential to bring into operation the restraint in para 5(1)(b) of the CS(CRM) Act.

  1. In my opinion, having regard to the manner in which both parties approached these applications for review, the most likely explanation as to why the restraint in para 5(1)(b) was not considered earlier is because neither party turned their minds to it. I have already mentioned the adversarial approach initially taken by the respondent in regard to the Wadalba Group Homes proceedings. However, it cannot be said that he took a similar approach thereafter, in regard to the filing and serving of evidence. As I have explained, it is the contention of the respondent that the applicant's failure to particularise the ambit of its claim and the relief sought, which meant that he was required to file and serve large volumes of evidence, only to have the applicant withdraw its applications. I have dealt with this issue below.

  1. For the reasons set out above, in my view the applicant has not established sufficient grounds to warrant an order that the respondent pay its costs of these proceedings.

Respondent's application for costs

  1. As I have indicated the respondent seeks an order that the applicant pay its costs of these proceedings. The grounds relied on by the respondent are:

(a) the applications have been withdrawn by the applicant;

(b) the applicant's failure to particularise its case; and

(c) the applicant's failure to particularise the relief sought, and to appreciate the statutory limits on the powers of the tribunal in relation to relief.

  1. The respondent contends that each of the above led to the prolongation of proceedings that were ultimately abandoned and hence the incurring of unnecessary costs.

  1. Withdrawal of the proceedings - While the withdrawal of proceedings in a Court will generally give rise to an order for costs, that is not the case in proceedings before the tribunal, where the general rule is that each party pay its own costs: see s 34 of the CS(CRM) Act and subs 88(1) of the ADT Act. However, a withdrawal of proceedings that were at all times unmeritorious, or made maliciously for an ulterior purpose these are circumstances where the tribunal may exercise its discretion to award costs: see s 34 of the CS(CRM) Act and subs 88(1A) of the ADT Act.

  1. It is my understanding that the respondent does not contend that the applicant's withdrawal of its applications is of its own a sufficient factor to make an award of costs in its favour. However, it is a factor when considered together with the other factors relied upon, which may justify an order for costs under s 34 of the CS(CRM)Act.

  1. Failure to particularise claim and orders sought - I note, the applicant's applications for review did not specify those aspects of the respondent's decision, which it asserts failed to conform with the objects of the DS Act, or the principles and application of those principles as set out in Schedule 1 of that Act. Nor did the applicant specify the orders that were sought. The orders the tribunal can make are those set out in s 63(3) of the ADT Act (i.e. affirm the decision, vary the decision, set aside the decision and in substitution thereof make another decision, set aside the decision and remit the decision for reconsideration by the administrator).

  1. However, I note, in correspondence with the respondent, prior to the lodging of its applications in regard to the Norton Road Group Homes and the Casuarina Grove Group Homes (file number 114019 and 114020), the applicant described in general terms the extent to which it asserted the respondent's decision had failed to conform with the objects and principles of the DS Act. As I have indicated, the respondent contends that these were insufficient in order for it to prepare its case and sought orders for further particulars. The particulars that were provided, in accordance with the orders, the respondent asserts were again a mere restatement of the objects and principles as set out in the DS Act. By way of example, the respondent cited para 3(a) of the particulars contained in the applicant's response. That para was in the following terms:

3. These institutional environments, such as that at the [Casuarina Grove and Norton Road Group Houses]:
(a) are well known for their failure to provide persons with disability with the environmental conditions and support that will enable them to reach their maximum potential as members of the community, as required by Object 3(a), 3(b)(ii), 3(e) and Schedule 1, paragraph 1(c) and 2(a), 2(d), 2(f) and 2(j) of the DSA;
(b) ...

  1. Again the relief sought went no further than the general terms of the orders that can be made under subs 63(3) of the ADT Act.

  1. It was not until 9 March 2012, that the respondent again sought clarification, from the applicant, as to the specific nature of its claim and the orders sought in regard to each of the Group Homes the subject of its applications for review. As I have explained, at that time the applicant had filed and served its lay evidence and the reports of 2 experts. These I note were prepared some 9 months after the respondent had filed and served its s 58 documents in regard to the Norton Road and Casuarina Grove Group Homes.

  1. As I have explained, the respondent's letter of 9 March 2012, triggered a series of further letters between the parties which eventually led to the respondent's response of 9 July 2012, in which it raised the restraint contained in para 5(1)(b) of the CS(CRM) Act. As I have already indicated, in my opinion, neither party had focused on the possibility of this restraint having any application to these proceedings. Yet at all times, the respondent was aware of the breadth of the applicant's claim in regard to each of the Group Homes and filed and served evidence to meet that claim. That evidence was filed and served pursuant to consent orders. Accordingly, in my opinion, the respondent cannot now complain that the preparation of this material was unnecessary.

  1. Failure to appreciate the limits of the tribunal's jurisdiction - The respondent contends that the applicant's applications were a 'vigorous attempt, in effect, to close down four residential facilities for people with disabilities.' That is, the nature of the claim made by the applicant and the relief sought, lay at the heart of the applicant's difficulty with the tribunal's jurisdiction to hear and determine these applications.

  1. As I have already explained, the respondent contends that the issue of the limits of the tribunal's jurisdiction was an issue the applicant should have considered long before 9 July 2012. On the other hand the applicant contends it was an issue the respondent should have addressed following its letter of 6 November 2009. As I have indicated, issues of jurisdiction are matters that each party should have addressed. In my opinion, for the reasons I have already given, the fact that neither party addressed the application of para 5(1)(b) of the CS(CRM) Act until so late in these proceedings, should not result in one party being solely responsible.

  1. Accordingly, for the reasons set out above, in my view the respondent has not established grounds to warrant an order that the applicant pay its costs of these proceedings.

Conclusions and orders

  1. It is regrettable that these proceedings were withdrawn after having been so protracted. Both parties have undoubtedly incurred considerable costs. However, for the reasons set out above, in my opinion, having regard to the particular circumstances of these applications, it is not appropriate to make an order with respect to the payment of costs by either party.

  1. Accordingly, I order that there be no orders as to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Amendments

21 June 2013 - formatting corrected


Amended paragraphs: 16

Decision last updated: 21 June 2013

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