TGN v MCN (No 2)

[2023] SASCA 81

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

TGN v MCN & ANOR (No 2)

[2023] SASCA 81

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Auxiliary Justice Dalton)

7 August 2023

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS

HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - GUARDIANSHIP AND SIMILAR APPOINTMENTS - GUARDIANSHIP BOARDS AND TRIBUNALS GENERALLY

Application for costs.

On 9 June 2023, this Court granted leave to appeal from a decision of the South Australian Civil and Administrative Tribunal (‘SACAT’), allowed the appeal and remitted the matter to SACAT.

The parties agreed that the second respondent should pay the applicant’s costs of the appeal on a standard basis to be assessed or agreed.

The two issues to be determined by the Court are as follows:

•First, whether the Public Advocate should pay the applicant’s costs of the application for internal review in SACAT; and

•Whether there should be an order that the Public Trustee, as litigation guardian for MCN, pay the costs of the issues raised by the Public Trustee on the appeal. 

Held, per Dalton AJA (Doyle & Bleby JJA agreeing):

1.It would be a rare case where it was appropriate for this Court to make a consequential costs order which the SACAT decision-maker had no power to make.  There is no feature of the present case which would justify doing so. There should be no order made in relation to the costs of the applicant’s application for leave to make an internal review.

2.The Public Trustee did not choose to become involved in the litigation. It did not contribute to the length of the hearing in any substantial way. Its submissions added little, if anything, to the issues already extant in the litigation. No order ought to be made against the Public Trustee.

Guardianship and Administration Act 1993 (SA) s 64; South Australian Civil and Administrative Appeals Tribunal Act 2013 (SA) ss 57, 71; Uniform Civil Rules 2020 (SA) r 23.10(4), referred to.
Burnside City v Attorney General of South Australia & Ors (1994) 63 SASR 65; TGN v MCN & Anor [2023] SASCA 62, considered.

TGN v MCN & ANOR (No 2)
[2023] SASCA 81

Court of Appeal – Civil:  Doyle and Bleby JJA and Dalton AJA

1. DOYLE JA:     I agree with the reasons and order of Dalton AJA.

2. BLEBY JA:      I agree with the reasons and order of Dalton AJA.

3. DALTON AJA:        The Court of Appeal gave judgment in this matter on 9 June 2023.[1]  At the end of the hearing this Court allowed written submissions as to costs, and this decision deals with the questions of costs raised in the written submissions.

   [1]     TGN v MCN & Anor [2023] SASCA 62.

4. It is necessary to understand a little about the appeal in order to understand the costs arguments.  MCN suffers from permanent disabilities including severe autism, intellectual impairment and bipolar disorder.  During his childhood it became apparent that his parents could not agree upon his care.  They divorced and his mother took primary responsibility for his care.  When MCN turned 18 his father sought and achieved the appointment of the Public Advocate as MCN’s guardian.  Notwithstanding this appointment, not a great deal changed in practical terms.  MCN continued to live in his mother’s home and she continued to be very involved in his care and the coordination of his care.  The appointment of the Public Advocate probably brought about a greater level of care from external providers, and a greater organisation of care provided by external providers.  By a decision which remains unexplained, in 2021 the Public Advocate decided to remove MCN from his mother’s house.  He has since lived in share houses provided by commercial care providers.  His mother still has contact with him, but it is limited and the relationship between her and the Public Advocate has become acrimonious.  She has sworn several affidavits in which she details her views about the negative effect that MCN’s current care model has upon his physical and mental health.  While the Public Advocate denies her views generally, there has never been any detailed response to them, and never been any testing of the allegations in any forum.

5. Soon after MCN was taken from her home, his mother made an application to revoke or vary the guardianship orders.  The application was made to the South Australian Civil and Administrative Tribunal (‘SACAT’).  It was dismissed.  Soon after, MCN’s mother made a second application to SACAT, and that second application was the proceeding which eventually developed into the appeal which was disposed of on 9 June 2023.  The member of SACAT who dealt with the second application to revoke or vary the guardianship order, determined that MCN’s mother did not have the right to bring the application.  MCN’s mother made an application for internal review of that decision.  The application for internal review was heard by the President of SACAT and dismissed.  MCN’s mother sought leave to appeal to this Court.  She named the Public Advocate as respondent.  By directions made in this Court, MCN, by the Public Trustee as Litigation Guardian was made the first respondent and the Public Advocate became the second respondent.  MCN’s father was an Interested Party to the appeal.

6. This Court granted leave to appeal; varied the order made by the President of SACAT so that it gave leave to review the decision of the original member, and set aside the decision of the original member.  This Court decided that MCN’s mother did have the right to make her second application to vary or revoke the appointment of the Public Advocate as guardian, and remitted that application for hearing in SACAT.

   Costs orders

7. The parties have partly agreed on the costs orders to be made.  They agree that the second respondent (the Public Advocate) should pay the applicant’s costs of the appeal on a standard basis to be assessed or agreed.  This seems an appropriate order given the result of the appeal.

8. There were two subsidiary issues in relation to this order.  First, the applicant asked that the order specify that the Public Advocate itself was to pay the costs, without recourse to the estate of MCN.  The Public Advocate submitted that there was no reason for this qualification to be part of the order as there was no basis for the Public Advocate to have recourse to MNC’s estate to satisfy a costs order made against the Public Advocate in her own capacity.  Because the position of the Public Advocate is made clear, I am of the view that there is no necessity for the qualification sought by the applicant.

9. Secondly, the second respondent asked that this Court order that it pay “the appellant’s reasonable costs of the appeal on a standard basis” (my underlining).  I think the applicant rightly objects to the qualification introduced by the word “reasonable”.  This Court will order costs to be assessed or agreed on a standard basis.  The quantum of those costs is a matter for a costs assessor if they cannot be agreed.

10. The parties also agree that there should be no orders as to costs with respect to the Interested Party.  Again, that seems an appropriate order.

11. That leaves two matters for this Court’s determination.  First, whether the Public Advocate should pay the applicant’s costs of the application for internal review in SACAT.  The applicant submits that the Public Advocate should pay these costs and pay them on the Higher Court scale.  Secondly, the applicant asks for an order that the Public Trustee, as litigation guardian for MCN, pay its costs of the issues raised by the Public Trustee on the appeal.  The Public Trustee submits that there ought be no order as to its costs.  I will deal with each of these matters in turn.

    Costs of the application for internal review in SACAT

12. The applicant was successful in having the decision on internal review varied, and an order in her favour made, instead of the order which she challenged.  Nonetheless, an order that, effectively, these costs follow the events is opposed by the Public Advocate. 

13. The first ground of opposition is that SACAT is a “no costs” jurisdiction.  Section 57(1) of the South Australian Civil and Administrative Appeals Tribunal Act 2013 (SA) (‘SACAT Act’) provides that, “Unless otherwise specified in this Act, a relevant Act, or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal”.  Section 57(2) provides that the Tribunal may make an order for the payment of “all or any of the costs of another party” if the Tribunal thinks it is appropriate to do so, taking into account:

    (a)the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs [of] the parties in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

    (b)the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and

    (c)     any provision made by the Rules; and

    (d)     any other matter considered relevant by the Tribunal.

14. Here there are some good arguments in favour of an order that the second respondent pay the applicant’s costs of the application for permission to have an internal review.  The point at issue was a legal one: whether the applicant had the right to bring an application for revocation or variation of a guardianship order. Furthermore, the point was one of general application.  The second respondent did not seek to defend in this Court either the reasoning of the original SACAT member, or the President on the application for leave to bring an internal review.

15. However, s 57 of the SACAT Act is not the only relevant legislative provision. The Public Advocate’s second ground of objection is that s 64 of the Guardianship and Administration Act 1993 (SA) deals with applications for internal review of decisions made by SACAT members. Section 64(g) provides:

    the Tribunal may make an order for costs against a party to proceedings for internal review, but only if the Tribunal is satisfied that the institution of the proceedings, or the party’s conduct in relation to the proceedings, was frivolous, vexatious or calculated to cause delay.

16. The second respondent’s conduct in relation to the SACAT proceedings was based on a legally incorrect approach, but could not be said to have been unreasonable, much less frivolous or vexatious.  It could not be described as calculated to cause delay.  In those circumstances I think that even if the President of SACAT had decided to review the decision of the original SACAT member, set it aside, and return it for further hearing, the President could not have made an order for costs in favour of the present applicant.

17. It is s 71(1)(a)(i) of the SACAT Act which allows the applicant to appeal to this Court.  Section 71(4) and (5) provide as follows:

    (4)     The Supreme Court may, on an appeal under this section—

    (a)     affirm the decision appealed against; or

    (b)     vary the decision appealed against; or

    (c)     set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Court considers appropriate.

    (5)The Supreme Court may, on an appeal, make any interim, ancillary or consequential order that the Court considers appropriate.

18. This Court made orders of the type listed at s 71(4) on 9 June 2023.  I assume (without deciding) that this Court has power to make a consequential cost order.[2] However, I think it would be a rare case indeed where it was appropriate for this Court to make a consequential costs order which the SACAT decision-maker had no power to make.  I cannot see any feature of the present case which would justify doing so.  It seems to me that there should be no order made in relation to the costs of the applicant’s application for leave to make an internal review.

    [2]     South Australian Civil and Administrative Appeals Tribunal Act 2013 (SA), s 71(5).

    Costs order against the Public Trustee

19. The applicant sought costs against the Public Trustee insofar as her costs related to issues raised by the Public Trustee.

20. The Public Trustee came to be a party to this litigation because on 18 May 2023, this Court ordered it to be appointed litigation guardian for MCN and directed that the Legal Services Commission was to assign legal representation for MCN.  By a direction made the same day, submissions by the Public Trustee on behalf of MCN were to be filed and served by 30 May 2023.  They were, and the applicant put in written submissions in response.  The appeal was heard the next day, 1 June 2023.  That is, the Public Trustee came into the proceeding at a late stage with limited time to prepare for the appeal hearing.

21. The applicant says, and I think it is correct, that the written submissions of the Public Trustee adopted and endorsed the second respondent’s submissions.  As matters were argued on 1 June 2023, the Public Trustee changed its stance and simply submitted to the order of the Court.  In my view, neither approach on the part of the Public Trustee was helpful, or likely to fulfil the purpose of the Court’s asking it to independently represent the interests of MCN.

22. The Public Trustee submits that there ought to be no order as to costs for or against it. It relied upon s 57(1) of the SACAT Act (above). In a case such as this one that will always be a relevant matter to consider but, as explained at [12] above, I do not find it particularly compelling in this matter. Even more so, when the Public Trustee was not a party to any of the proceedings in SACAT, but only involved in the appeal in this Court.

23. The applicant submitted that the only substantial costs associated with the Public Trustee’s case were the perusal of the Public Trustee’s written submissions and a response.  That seems right.  Further, there would seem to have been little independent work necessary by way of response for, as the applicant submits, the Public Trustee’s submissions were very like those of the Public Advocate.  I do not consider that there would have been any substantial separate costs of the hearing.

24. This claim for costs raises some particular legal issues which were not helpfully addressed either by the applicant or the first respondent.  First, r 23.10(4) of the Uniform Civil Rules 2020 (SA) (‘UCR’) provides that, “Unless the Court otherwise orders, any right or liability to receive or pay costs in a proceeding vests in the person under a legal incapacity and not in the litigation guardian”.

25. The submissions of the Public Trustee drew attention to this rule and made the submission that the Public Trustee acted in the best interests of MCN at all times.  The Public Trustee’s conduct of the litigation must have been difficult, as it could not obtain instructions from MCN as to his wishes, although it might have obtained his views.  Initially the Public Trustee supported the position of the Public Advocate.  That position was not legally correct, but perhaps more importantly from the point of view of someone engaged to protect MCN’s separate interests, it rested, in part, upon an underlying factual rejection of MCN’s mother’s claims as to MCN’s continuing deterioration in terms of his mental and physical health.  I accept that the officers of the Public Trustee acted genuinely, but I am not convinced that they in fact acted in the separate and independent interests of MCN so that any costs order should be charged not to them, but to MCN’s estate.

26. The applicant made no submissions at all on the effect of r 23.10(4).  I assume the applicant would object to the costs coming from the estate of MCN, but in the absence of material upon which this Court could act to dispense with the prima facie position established by that rule, I do not see a basis for the Court to do so.

27. As well as its status as litigation guardian, the Public Trustee’s role in this litigation is exceptional because it became involved only because the Court ordered it to.  The Court was of the view that MCN’s interests ought to be independently represented in the litigation.  In some respects therefore, the position of the Public Trustee in this litigation is analogous to the position of an intervener, “[a] person who seeks to step in as a party in proceedings to protect his or her own interests where those interests are different from those of the existing parties”.[3]  One significant difference is that the Public Trustee did not ask to intervene; it was ordered to do so.

    [3]     Dal Pont, Law of Costs, (Reid International Books Australia Pty Ltd, trading as LexisNexis, 2021), [11.40]; citing LexisNexis Australian Legal Dictionary, 2^nd Ed, (LexisNexis Butterworths, Sydney, 2016), p 831.

28. There is a subset of specific costs rules which apply to interveners.  Many were reviewed in some detail in a decision of Debelle J, Burnside City v Attorney‑General of South Australia & Ors.[4]  Debelle J noted that it was difficult to identify decisions concerning the liability of unsuccessful interveners to pay costs.[5]  He noted that rules regarding successful interveners limited their recovery of costs, and went on to say:[6]

    There appears to be no reason why as a matter of general principle an unsuccessful intervener should not be subject to the general rule that costs follow the event.  However, it is not appropriate to apply that general rule without qualification.  If a successful intervener is not entitled to his costs where his interests are adequately protected by an existing party to the action, it would be inequitable to an unsuccessful intervener to be liable to costs in like circumstances.  However, an unsuccessful intervener might be liable for costs if his intervention has substantially extended the hearing or put the successful party to unnecessary cost.  In such circumstances, the intervener might be liable to pay a portion of the successful party’s costs, that portion being determined by the extent to which the hearing has been lengthened by the intervention.  Such a rule is consistent with the principle that, generally speaking, an intervener must take the action as he finds it.

    In determining whether the intervener should be liable for costs, the court should adopt a broad axe approach.  If the hearing was slightly longer than it would have been but for the intervention, it might not be appropriate to order the intervener to pay costs.  It will be a question of fact and degree in every case whether the intervener’s participation has resulted in the trial being substantially longer than it would have been but for the intervention.  In determining whether the intervener should be liable, it would be appropriate to have regard also to such factors as whether the interest which the intervener sought to protect was adequately protected by an existing party.  Depending on the nature of the issues in the action, it might be a relevant factor that the intervener has assisted the parties and the court in identifying or elucidating the issues.  It is not unrealistic to suppose that, although the intervention has prolonged the trial, the intervener’s participation has been of substantial assistance.  In such a case, it might be inequitable to order the intervener to contribute to the costs of the successful party.

    [4] (1994) 63 SASR 65.

    [5]     Burnside City v Attorney‑General of South Australia & Ors (1994) 63 SASR 65 at 66.

    [6]     Burnside City v Attorney‑General of South Australia & Ors (1994) 63 SASR 65 at 67-68.

1. In my view the above discussion is helpful in discussing principles which are applicable by analogy to the cost issues in this case.  A significant qualification must be that in this case the Public Trustee did not choose to intervene, but was ordered to take on the role, essentially, of an intervener in MCN’s interests.  I think that must militate in the Public Trustee’s favour in considering whether or not an order for costs ought to be made against it.  In my view, considering all the circumstances discussed, the fairest order is that there be no order for or against the Public Trustee.  It did not choose to become involved in the litigation. It did not contribute to the length of the hearing in any substantial way.  It did file written submissions supporting a position which was ultimately rejected by this Court.  It was proper for the applicant’s lawyers to peruse those submissions and respond to them.  However, the submissions added little, if anything, to the issues already extant in the litigation, and therefore, the cost of perusing them, and responding to them, should have added very little to the costs burden which the applicant otherwise bore.

   Order

2. I would make only one order: the second respondent should pay the applicant’s costs of this appeal on a standard basis to be assessed or agreed.