TGN v MCN (No 2)

The Supreme Court of South Australia, Court of Appeal (Civil), considered an application for costs following an appeal from a decision of the South Australian Civil and Administrative Tribunal (SACAT). The appeal concerned guardianship orders for MCN, a person with severe disabilities. The Court of Appeal had previously granted leave to appeal, allowed the appeal, and remitted the matter to SACAT. The parties agreed that the second respondent, the Public Advocate, should pay the applicant's costs of the appeal on a standard basis.

The Court was required to determine two principal issues regarding costs: first, whether the Public Advocate should pay the applicant's costs of an application for internal review in SACAT; and second, whether the Public Trustee, as litigation guardian for MCN, should pay the costs associated with the issues it raised on appeal. The applicant sought costs against the Public Advocate for the SACAT internal review, arguing that the Public Advocate's position was legally incorrect and that the applicant was ultimately successful. The applicant also sought costs against the Public Trustee for issues raised by the Public Trustee on appeal, contending that the Public Trustee's involvement did not substantially contribute to the litigation and that the applicant incurred costs in responding to its submissions.

Regarding the SACAT internal review costs, the Court held that while the applicant was successful, the relevant legislation governing SACAT costs, specifically section 64 of the Guardianship and Administration Act 1993 (SA), limited the power to award costs against a party to proceedings for internal review to circumstances where the institution of proceedings or a party's conduct was frivolous, vexatious, or calculated to cause delay. The Court found that the Public Advocate's conduct, while based on a legally incorrect approach, did not meet this threshold. Furthermore, the Court noted that it would be rare for the Supreme Court to make a consequential costs order that a SACAT decision-maker had no power to make, and no exceptional features justified such an order in this case. Consequently, no order was made in relation to the costs of the applicant's application for internal review.

Concerning the costs against the Public Trustee, the Court acknowledged that the Public Trustee was appointed as litigation guardian for MCN by the Court at a late stage of the proceedings and had limited time to prepare. While the Public Trustee's initial submissions supported a position ultimately rejected by the Court, the Court found that these submissions did not substantially lengthen the hearing or create significant additional costs for the applicant. Applying principles analogous to those governing interveners, the Court concluded that the Public Trustee did not choose to become involved, did not substantially contribute to the length of the hearing, and its submissions added little to the existing issues. Therefore, the Court ordered that there be no order for or against the Public Trustee. The sole order made was that the second respondent (the Public Advocate) pay the applicant's costs of the appeal on a standard basis, to be assessed or agreed.