Sherman v Commissioner of Police, NSW Police Force

[2016] NSWCATAD 10

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CCC and CCD v Department of Family and Community Services [2016] NSWCATAD 10
Hearing dates:	On the papers- last written submissions in relation to Costs received in the Registry on 3 November 2015
Date of orders:	08 January 2016
Decision date:	08 January 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson - Senior Member P Foreman - General Member
Decision:	(1) The application for costs pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 made by the applicants is refused and otherwise dismissed.
Catchwords:	ADMINISTRATIVE LAW- COSTS
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:	AA & AY v Wesley Dalmar and Ors [2008] NSWADT 231 BMA and BMB v Department of Family and Community Services (No 2) [2015] NSWCATAD 93
Category:	Costs
Parties:	CCC and CCD (Applicants) Department of Family and Community Services (Respondent)
Representation:	Solicitors: Baker & Borthwick (Applicants) NLS Law Pty Ltd (Respondent)
File Number(s):	1510391
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013- Section 105 Children and Young Persons (Care and Protection Act (1998) restriction on publication of information that will identify the applicants, any children, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

REASONS FOR DECISION

Factual Background

1. CCC and CCD are authorised carers under Chapter 8 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). On 13 July 2015, they made an application to the Tribunal seeking review of a purported decision of the respondent to remove children from their day-to- day care. The children the subject of the review have been in their care since 3 October 2012.

2. A social worker independent of the respondent conducted a review which resulted in a written report dated 11 May 2015. The recommendations relevant to the application before the Tribunal were:

1. the applicants psychologically harmed the children since the children entered into their care;

2. the placement with the carers would not adequately and safely meet the children’s needs during their childhood and adolescence; and

3. the children should be removed from the applicants’ care.

3. On 10 July 2015 a copy of the review was provided to the applicants to facilitate discussion about the restoration of the children to the care of their mother. It was contemplated that the restoration would occur pursuant to orders made in the Children’s Court pursuant to section 90 of the Care Act.

4. On 13 July 2015 a written statement of reasons was provided to the applicants by the respondent. The applicants did not apply for an internal review of the decision to remove the children from their care pursuant to section 53 of the Administrative Decisions Review Act 1997 (NSW).

5. The applicants sought orders to stay the removal of the children from their care. The children were not actually removed from the care of the applicants at the time of their application.

6. The applicants were made aware by the respondent that Children’s Court proceedings were contemplated since 16 July 2015 and were advised that they could apply to become parties to those Children’s Court proceedings. Those proceedings were not actually commenced until 3 September 2015.

7. At the hearing of these proceedings in the Tribunal on 24 September 2015 the applicants withdrew their application except as to the application for their costs. Directions were made by the Tribunal at that time in relation to written submissions concerning the issue of costs. This decision is in relation to the application by the applicants for their costs of the proceedings in the Tribunal.

Costs Power

8. The Tribunal’s power to award costs is derived from section 60 of the Civil and Administrative Tribunal Act 2013 (NSW). The section provides as follows:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis.

(5) In this section:

"costs" includes:

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

9. The ordinary rule is that each party to proceedings in the Tribunal should pay his or her own costs. There is a discretion to award costs where the Tribunal is satisfied there are “special circumstances” that warrant an award of costs. The matters that constitute special circumstances for the Tribunal to have regard to are the matters set out in section 60 (3) of the Civil and Administrative Tribunal Act.

10. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Care Act: section 36 of the Civil and Administrative Tribunal Act. It is clear that the reference to subsection 36 (3) of the Civil and Administrative Tribunal Act in section 60 (3) (f) of that same Act imposes an obligation on parties and legal representatives for those parties to cooperate with the Tribunal to give effect to the guiding principle and participate in the processes of the Tribunal including complying with directions and orders of the Tribunal.

The applicants’ submissions

11. The applicants in their submissions identified the following matters as relevant to determining whether special circumstances exist warranting an award of costs in their favour:

1. the circumstances of a mediation on 3 September 2015 in which it is asserted that the respondent had no intention of mediating these proceedings because it proposed to file, and did in fact file proceedings in the Children’s Court;

2. the conduct of the respondent in relation to these proceedings by not bringing section 90 of the Care Act proceedings earlier, and providing the independent review to the applicants prior to commencing those proceedings;

3. the respondent’s failure to counsel the applicants about the reported allegations of abuse;

4. the respondent’s failure to discuss the intention to restore the children to the care of their mother;

5. the failure to discuss practical methods of transitioning the children to the care of their mother with the input of the applicants;

6. the failure of the respondent to reassure the applicant that there would be no removal of the children, but merely a restoration process;

7. the applicants were unfairly disadvantaged by the conduct of the respondent in these proceedings;

8. the respondent unreasonably prolonged proceedings by not immediately setting aside the decision to remove and providing the contents of the section 90 of the Care Act proceedings until the day before the tribunal hearing;

9. it is asserted the respondent did not have a strong case, the decision is asserted to be untenable when the application was lodged with the Tribunal;

10. the proceedings were made complex or difficult by the lack of cooperation by the respondent and disregard of directions by the Tribunal;

11. it is submitted by the applicants that aspects of the respondent’s conduct suggests an unnecessary promotion of the case against the best interests of both carers and the children.

12. The applicants relied upon AA & AY v Wesley Dalmar and Ors [2008] NSWADT 231 and also submitted that the respondent should pay the costs of the applicants on a party/party basis, and the mediation on an indemnity basis, as agreed or assessed from 24 July 2015 to 23 September 2015.

Respondent’s submissions

13. The respondent submitted that there are no circumstances that warrant a costs order to be made against the respondent. The respondent opposed any order for costs made against the respondent. The respondent referred to the decision of BMA and BMB v Department of Family and Community Services (No 2) [2015] NSWCATAD 93.

14. The respondent replied to the submissions of the applicant as follows:

1. the mediation was not aborted and did occur on 3 September 2015;

2. the applicants were aware that the section 90 of the Care Act application was to be filed in the Children’s Court;

3. the respondent gave an interim undertaking during the course of the proceedings in the Tribunal that the children would not be moved pending resolution of the application, subject to any risk of significant harm concerns which may warrant the use of emergency powers;

4. the respondent conducted itself appropriately in the proceedings;

5. the applicants conceded that they did not and have not proposed restoration of the children to the mother and that the respondent had proposed that further discussions would be held with the applicants prior to restoration of the children;

6. the respondent has appropriately attempted to resolve the issues by providing meetings and discussion with the applicants;

7. the applicants were able to withdraw their application upon the filing of the section 90 proceedings in the Children’s Court and because they were legally represented were aware of section 32 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) which provides that the tribunal may decline to hear the matter in circumstances where there are alternative avenues for redress;

8. the applicants sought a hearing date for their application;

9. the applicants withdrew their application at the final hearing after initial submissions;

10. the respondent did not act in a manner contrary to the guiding principle under the Civil and Administrative Tribunal Act.

Determination

15. The Tribunal does not accept that the respondent entered into the process of mediation without genuinely aspiring to resolve the issue through mediation. The process of restoration of the children to the care of their mother required an application to the Children’s Court separate to proceedings commenced by the applicants in the Tribunal. The timing of the application in the Children’s Court is a matter for the respondent to consider and implement subject to the preparation of appropriate evidence.

16. At the directions hearing on 23 July 2015 in the Tribunal an appropriate undertaking was given by the respondent consistent with its obligation to the Tribunal.

17. The respondent did not bring the proceedings in the Tribunal, nor did it delay the applicants desire to prosecute the proceedings in the Tribunal. It was appropriate and in the best interests of the children for the respondent not to remove the children until a restoration process was formulated and implemented by the Children’s Court order under section 90 of the Care Act. The respondent cannot second-guess whether the Children’s Court will make an order for restoration prior to that occurring.

18. These proceedings were not complex compared to similar proceedings under the same legislation. The applicants are entitled to seek legal representation but that fact alone does not warrant the exercise of the discretion reposed in the Tribunal in their favour.

19. Neither party has been unfairly or unnecessarily disadvantaged by the conduct of the other party to these proceedings.

20. The applicants clearly had a tenable claim to bring before the Tribunal. However, the respondent also had a tenable position to oppose the application brought in the Tribunal.

21. The proceedings in the Tribunal were not frivolous, vexatious or otherwise misconceived or lacking in substance. Similarly, the position of the respondent was entirely appropriate and in the interests of the children.

22. The Tribunal does not find that either party refused or failed to comply with the duty imposed by section 36 (3) of the Civil and Administrative Tribunal Act.

23. The decisions referred to by both the applicants and the respondent turn on their own factual circumstances and neither is entirely applicable to this case, other than providing examples as to how the Tribunal’s discretion has been previously exercised. There is no other matter that the Tribunal considers relevant to the exercise of its discretion in relation to the costs application.

24. In all the circumstances, having regard to all the submissions made on behalf the applicants, the application for costs sought by the applicants is refused and the application is otherwise dismissed.

25. The order of the Tribunal therefore is:

1. The application for costs pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 made by the applicants known as CCC and CCD is refused and otherwise dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 08 January 2016