These Reasons for Decision concern an application made by Legal Aid New South Wales ("Legal Aid NSW") to be joined to the proceedings and for a costs order against the subject of guardianship proceedings (GZN). These costs are the costs incurred by Legal Aid NSW in providing a solicitor to act as the separate representative for GZN in Tribunal proceedings on 27 June 2014. The Tribunal made the order appointing a separate representative for GZN on 5 June 2014.
For the reasons set out below, the Tribunal decided to dismiss both the application for joinder and the application for costs for the following reasons.
[2]
Background
GZN is an 89-year-old woman who lives in her own home unit in eastern Sydney. She has been the subject of financial management and reviewable guardianship orders since 2012.
On 31 May 2012, the Tribunal made a financial management order in relation to GZN and appointed a specialist trustee company as her private financial manager. At the same hearing the Tribunal made a guardianship order appointing the Public Guardian for 12 months to make decisions for GZN on services. Following a hearing on 28 June 2013, the financial management order was confirmed and the guardianship order was renewed for 12 months, again appointing the Public Guardian. The guardianship order was reviewed on 27 June 2014 and the Public Guardian was appointed for 12 months with decision making functions in respect of health care, access, legal services, medical and dental consents, and services, including the authority to override GZN's objection to services. This order was renewed for three years on 22 June 2015 with similar decision-making functions, without the override authority.
On 9 April 2015, the appointment of the specialist trustee company was revoked and the management of GZN's estate was, instead, committed to the NSW Trustee and Guardian.
Relevant to the present application, the Tribunal conducted an interlocutory hearing on 5 June 2014 and refused the application of a legal representative to represent GZN in the review of the guardianship order proceedings. Instead, the Tribunal appointed a separate representative for GZN. Ms Linda Rogers, solicitor, was assigned the role of separate representative by the Mental Health Advocacy Service of Legal Aid NSW. Ms Rogers appeared and made submissions as separate representative at the substantive hearing on 27 June 2014.
At the conclusion of the substantive hearing on 27 June 2014, an application for a costs order from GZN's estate was made by the separate representative on behalf of Legal Aid NSW. Written submissions were provided in support of the costs application but based that application on s 69 of the Guardianship Act 1987 (NSW) ("the Act"). That section, however, was repealed on 1 January 2014.
Written submissions dated 3 July 2014 in response to the directions were provided by Legal Aid NSW. In those submissions, Legal Aid NSW sought to be joined as a party pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act") in order to make the application for costs.
In subsequent correspondence from the separate representative dated 21 July 2014, Ms Rogers sought permission to cease acting as separate representative and to take no further role in relation to the costs proceedings.
By letter dated 21 July 2014, a Principal Guardian for the Public Guardian advised that the Public Guardian had no objection to Legal Aid NSW's costs being met by GZN. The Public Guardian did not make any further submissions in response to the directions made by the Tribunal on 27 June 2014.
The then private financial manager (the specialist trustee company), did not provide any submissions in response to the directions made by the Tribunal on 27 June 2014.
At a directions hearing conducted on 16 June 2015, Mr Robert Wheeler, on behalf of Legal Aid NSW, confirmed that Legal Aid NSW still wished to proceed with the application for costs.
The Tribunal conducted a further directions hearing on 11 August 2015 and directed that Legal Aid file and serve submissions in relation to the applications for costs and to its application to be joined to the proceedings by 11 September 2015. The NSW Trustee and Guardian was directed to file and serve submissions in response by 9 October 2015. By consent, the Tribunal dispensed with a hearing and directed that the application for joinder and costs should be determined on the basis of the written submissions.
[3]
Legislative Framework
Costs are governed by s 60 of the CAT Act. This section provides that:
(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.
Under s 60(4) of the CAT Act, if costs are to be awarded by the Tribunal, then the Tribunal may:
1. Determine by whom and to what extent costs are to be paid; and
2. Order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 (NSW) or on any other basis.
Section 60(5)(a) of the CAT Act relevantly provides that "costs" includes "the costs of, or incidental to, proceedings in the Tribunal".
Because s 60 of the CAT Act refers to a "party", Legal Aid made an application after the proceedings had been finalised, to be joined to the proceedings as a party. The application was made to support the application for costs.
Section 44(1) of the CAT Act provides that the Tribunal "may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party".
Schedule 6 of the CAT Act contains provisions relevant to the conduct of proceedings in the Guardianship Division of the Tribunal. Part 5 of Sch 6 of that Act sets out the "special practice and procedure" that applies in the Guardianship Division. Guidance in relation to joinder of parties is provided by cl 7 of that Act which provides:
The Tribunal may make an order under section 44(1) of this Act joining a person as a party to the proceedings for the exercise of a Division function if, in the opinion of the Tribunal, the person should be a party to the proceedings (whether because of the person's concern for the welfare of the person the subject of the proceedings or for any other reason).
Clause 6 of Sch 6 of the CAT Act provides that, despite s 50(2) of that Act, the Tribunal is required to hold a hearing in proceedings that involve the exercise of a substantive Division function but may dispense with a hearing for the purposes of making an ancillary or interlocutory decision. An "ancillary decision" includes a decision on costs: s 4(1) of the CAT Act.
The Tribunal may order that a party be separately represented under s 45(4)(c) of the CAT Act. However, s 45(5) of that Act provides that a person is not entitled to legal aid under the Legal Aid Commission Act 1979 (NSW) ("the LAC Act") "merely because the Tribunal has made an order under subsection (4)(c)".
Section 36(1) of the CAT Act provide as follows:
Guiding principle to be applied to practice and procedure
(1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it:
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
Clause 5 of Sch 6 provides that when exercising functions under the Act, the Tribunal is under a duty to observe the principles set out in s 4 of that Act, which are as follows:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
In considering the issue of costs, guidance is also provided by the NCAT Guardianship Division Procedural Direction 1 concerning costs dated 14 November 2014.
Given this application is made by Legal Aid NSW it is relevant to consider the provisions of the LAC Act dealing with grants of legal aid, contributions by an applicant and the liability of a person who gets the benefit of legal aid to pay costs and expenses incurred by Legal Aid NSW.
Section 46 of the LAC Act provides as follows:
46 Liability of legally assisted person to pay costs and expenses
(1) When legal services have been provided to a legally assisted person, the Commission is to determine the amount, if any, payable to the Commission by the person in respect of the costs and expenses of those legal services (including expenses under section 33). More than one such determination can be made in respect of the person and can be made at or after the conclusion of the matter for which legal services were provided or, if legal aid is terminated during the course of the matter, at or after the termination. A determination can be varied by a later determination.
(2) The amount payable under subsection (1) shall not exceed the amount by which the sum of:
(a) the costs of the legal services provided, and
(b) any disbursements and out-of-pocket expenses incurred in or in connection with the provision of those services, exceeds any amount, or the sum of any amounts, paid by the legally assisted person to the Commission under section 36 (1) (a).
(2A) An amount required to be paid under subsection (1) must be paid in such manner, and within such time, as the Commission directs.
(3) The Commission may recover an amount payable to it under subsection (1), and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction.
(4) For the purposes of subsection (2), a reference to costs is a reference to costs assessed as if the legally assisted person were not a legally assisted person.
[4]
Submissions of the parties and questions for determination
Legal Aid NSW provided the submissions, which can be summarised as follows:
1. Legal Aid NSW is required, by s 12(b) of the LAC Act, to have regard to the need for legal aid to be readily available and easily accessible to disadvantaged persons throughout NSW. Legal Aid NSW is a state-wide organisation whose purpose is to provide legal services to socially and economically disadvantaged people across NSW.
2. Legal Aid NSW policy is not to means test aid for the affected person in Guardianship matters (or mental health matters). That policy recognises the disadvantage and limited access to funds (even if they were available) for the subject of most of these applications. It is not intended to be a departure from the primary object of providing assistance to socially and economically disadvantaged persons.
3. The Guardianship Division orders that persons be separately represented where it considers the interests of a subject person would be protected by such an appointment. Legal Aid NSW has applied the same policy to these appointments as to applications for representation from the person themselves and, subject to limited exceptions, has granted aid and provided a separate representative following each of those orders without the application of a means test.
4. In an increasing number of matters, the person ordered to be separately represented is not an economically or socially disadvantaged person and accordingly is not of the class of persons who we are established to assist. The referral of these clients to Legal Aid NSW for representation following the separate representation order is a way by which the Tribunal is able to obtain the services of an experienced and independent practitioner to assist the client. It is the referral aspect of this service, rather than the provision of free legal services, which is required in a small but significant number of matters.
5. Legal Aid NSW is experiencing considerable funding stress. As a response to this, it has recently significantly tightened its contributions policy. For instance it now requires all applicants in means tested matters where costs exceed $2000 who own real property to provide a charge over it for the full cost of the services provided.
6. Section 46 of the LAC Act requires that at the conclusion of a matter the Commission must determine the amount, if any, that the legally assisted person is required to contribute towards his or her costs.
7. Legal Aid NSW has exempted some matters from the imposition of a final contribution. Those include Mental Health Advocacy Service matters that are not means tested. That exemption covers separate representation matters at the Guardianship Division.
8. Consistent application of the above exemption means that contributions should not be imposed by Legal Aid NSW in those matters. However, where it appears that the subject provided with separate representation is well able to meet the cost of providing that representation without hardship, Legal Aid NSW have determined to make an application to the Tribunal for a costs order in the matter. It will then be for the Tribunal to determine whether it is reasonable in all the circumstances to make such an order, taking into account the circumstances of the individual person and the desirability of Legal Aid NSW to continue to be able to provide separate representatives in the majority of matters where an order is made.
9. While s 60(1) of the CAT Act provides that each party to Tribunal proceedings are to pay their own costs, s 60(2) of that Act gives the Tribunal discretion to make a costs order if satisfied there are "special circumstances" warranting an award of costs.
10. Section 60 of the CAT Act is silent as to whether the Tribunal may make a costs order in favour of a non-party or against a non-party. The wording of s 60(1) of that Act speaks in terms of each party's costs. It is unnecessary to determine whether the Tribunal has the power to make an order for costs against a non-party as the subject is a party to the proceedings.
11. The power of courts to make orders regarding costs is set out in the Civil Procedure Act 2005 (NSW), s 98. That section does not apply to the New South Wales Civil and Administrative Tribunal, however, may be instructive as to the scope of costs orders which may be made. Under s 98(2) of that Act, relevant courts are empowered to determine by whom and to who costs orders are made. By analogy the Tribunal may have the power to make a costs order in favour of a non-party.
12. If the Tribunal considers that it has the power to make an order in favour of a non-party, the application to be made a party is withdrawn.
13. If the Tribunal considers that it does not have the power to make an order in favour of a non-party, Legal Aid NSW seeks to be joined as a party for the purposes only of making the costs application only.
14. The Tribunal has broad powers to join parties. It is not inconsistent with the general principles in s 4 of the Act that Legal Aid NSW be joined as a party for the purposes of the costs application. Although meeting the costs of the representation provided is an impost on the applicant, it is not an unreasonable one in all the circumstances. The Tribunal frequently makes financial management orders for people specifically to enable them to access and pay for relevant services.
15. The circumstances that the Tribunal may have regard to in determining whether there are special circumstances warranting the awarding of costs are set out in s 60(3) of the CAT Act. While the matters listed in s 60(3)(a)-(f) of that CAT Act relate to the conduct of the matter or a party, s 60(g) of that Act allows for any other matter that the Tribunal considers relevant. It is submitted that this section is wide enough to take into account that:
1. The Tribunal has appointed a separate representative to protect the interests of the subject.
2. The subject has obtained a benefit from that representation.
3. The subject is well able to pay for that benefit without hardship.
4. Legal Aid NSW, which has provided that representation, is required in its operations to have regard to the need for legal aid to be readily available and easily accessible to socially and economically disadvantaged persons.
5. In making a costs order in appropriate matters, Legal Aid NSW will be better able to continue to provide and fund separate representatives in matters where the subject does not easily have the capacity to meet the cost of their representation.
The NSW Trustee and Guardian declined to make submissions on the basis that the issues of joinder and costs were "entirely a matter for the Tribunal". However, the Tribunal noted that the amount of $1200, being the amount claimed by Legal Aid NSW, was "affordable". This is not controversial given in a report provided by the NSW Trustee and Guardian to the Tribunal dated 31 March 2015 as at September 2014 GZN's estate was valued in excess of $2.5 million at that time.
Having regard to the submissions of Legal Aid NSW, the issues for determination are:
1. Does the Tribunal have authority to make an order for costs against GZN and in favour of Legal Aid NSW under s 60(2) of the CAT Act even though it is not, and was not at the time of the application or the hearing, a party to the proceedings?
2. If the answer to (1) is no, can and, if so, should Legal Aid NSW be joined to the proceedings to support an application for costs?
3. Having regard to (1) and (2) and the submissions by Legal Aid NSW, should an order be made under s 60(2) of the CAT Act for costs in a fixed amount of $1200?
[5]
Can the Tribunal make a costs order in favour of a non-party?
The Tribunal accepts that it has authority under s 60(2) of the CAT Act to make an order for costs against GZN. She is a party to the proceedings and s 60 of the CAT Act clearly contemplates such orders. The critical issue is whether it can make an order for costs in favour of Legal Aid NSW, which is not a party to the proceedings.
The Tribunal rejects the submission that it has authority, akin to a court, to make costs orders in respect of non-parties based on the asserted analogous provisions of s 98 of the Civil Procedure Act.
As noted by Legal Aid NSW in its submissions, this Act does not apply to the Tribunal and, accordingly, cannot be a source of jurisdiction for costs. The Tribunal is a creature of statute and its jurisdiction and authority is based the CAT Act, the enabling legislation referred to in the CAT Act (including the Act) and any regulations and rules made pursuant to this legislation.
While s 98 of the Civil Procedure Act does not apply to this Tribunal, its terms are nonetheless instructive. Relevantly, s 98(1) of that Act provides as follows:
98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. [Emphasis added]
Section 98 of the Civil Procedure Act is specifically expressed to be wide in its scope and application. In contrast, s 60 of the CAT Act contains no such express broad discretion. This is significant for the reasons later explained.
The principles of statutory construction are well settled. The task of statutory interpretation must begin with a consideration of the text itself. The starting point is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, Hayne, Heydon, Crennan, Kiefel JJ, [47].
Section 60 of the CAT Act does not, by its terms, require that only a "party" may seek, or be awarded, costs. Section 60(2) of that Act is worded broadly in that "the Tribunal may award costs in relation to proceedings before it" but only if satisfied, as previously noted, that there are special circumstances warranting an award of costs.
However, the other provisions of s 60 of the CAT Act, when read together with s 60(2) of that Act, support the view that an award of costs is restricted to an award of costs in favour of a "party".
Section 60 of the CAT Act needs to be read as a whole to understand its scope and effect s 60(1) of that Act sets out the general principle for costs. It is clear from s 60(1) of the CAT Act that this general principle relates to the parties in proceedings. Section 60(2) of that Act sets out the exception to the general rule and it is therefore implicit that it also refers to the parties. This is reinforced by s 60(3) of the CAT Act, being the criteria on which the discretion in s 60(2) of that Act is based.
For instance, the criteria for special circumstances set out in s 60(3) of the CAT Act either refer to a "party" or the "parties" (see subs (a), (b), (c) and (f) of the CAT Act) or only have relevance by reference to the role of the parties in the proceedings (see subs (d) and (e) of the CAT Act). Subsection 60(3)(g) of the CAT Act gives that Tribunal discretion to consider "any other matter that the Tribunal considers relevant" but this discretion, while on its face unfettered, must also be considered judicially having regard to the context of the section and the role of the parties in the proceedings. This has been the approach taken by the Appeal Panel in cases such as Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120.
The term "party" is not defined in the CAT Act but it is clear from a number of provisions of the CAT Act, including ss 36, 38, 44 and 45, that the reference to a "party" is intended to be a "party to the proceedings" and not a simply a person involved in the proceedings. This is reinforced by the distinction made between a "party" and "another person" in ss 36(3) and 45 of the CAT Act but, most particularly, in the legislative regime for joinder set out in s 44 and cl 7 of Sch 6 of the CAT Act.
Section 60 of the CAT Act expressly uses the expression "party" or "parties" repeatedly in subss (1) and (3) of that Act. If s 60 of the CAT Act was intended to extend beyond parties, the legislature could have expressly provided for this, as in s 98 of the Civil Procedure Act. While s 60(4)(a) of the CAT Act gives a broad discretion to the Tribunal to "determine by whom and to what extent costs are to be paid" in similar terms to s 98 of the Civil Procedure Act, the difference is that subs 60(4)(a) of the CAT Act is only enlivened after the Tribunal determines to award costs under s 60(3) of that Act. In contrast, s 98 of the Civil Procedure Act includes this discretion as part of the jurisdictional basis for costs.
It is also relevant to note that reg 7 of the Civil and Administrative Tribunal Regulation 2013 (NSW) ("the Regulations") specifically provides for costs and expenses to be paid to non-parties who are summonsed to appear or produce documents.
In summary, the Tribunal has discretion to make an order for costs and the jurisdictional basis for the discretion is limited to its authority under s 60 of the CAT Act and reg 7 of the Regulations. It is clear from s 60 of the CAT Act that the power is limited to make costs orders in respect parties. Accordingly, the Tribunal concludes that it cannot make an order for costs in favour of a non-party other than as provided for in reg 7 of the Regulations and it has no power to make a costs order in favour of Legal Aid NSW in this case.
[6]
Can and should Legal Aid NSW be joined to the proceedings?
As a preliminary issue, under s 44(1) of the CAT Act, only "a person" may be joined as a party to proceedings. Under s 21(1) of the Interpretation Act 1987 (NSW), "person" includes an individual, a corporation and a body corporate or politic". The Legal Aid Commission of NSW is constituted as a corporation (s 6(1) of the LAC Act) and "is, for the purposes of any Act, a statutory body representing the Crown": s 6(2) of the LACT Act. There is therefore no statutory impediment to Legal Aid NSW seeking to be joined as a party.
Legal Aid NSW's written submissions make clear that the request to be joined as a party is for the sole purpose of seeking an award of costs from the estate of GZN for the costs incurred by Legal Aid NSW in providing separate representation to her.
There is no doubt that separate representatives perform a valuable role in the protective jurisdiction exercised by the Guardianship Division.
The Tribunal is also cognisant of the reasons advanced by Legal Aid NSW concerning its application for costs that requires, in order for it to do so, that it be joined as a party. These reasons include the ongoing commitment of Legal Aid NSW to provide a service to people at risk of exploitation or otherwise in need of a voice in proceedings against a background of increasing budgetary pressures. Legal Aid NSW's written submissions also make clear that applications to be joined as a party in order to make an application for costs, such as in this matter, would only be made in circumstances where it was clear that the subject was well able to meet a costs order without hardship.
Legal Aid NSW's written submissions also indicate that a legislative mechanism already exists that would enable Legal Aid NSW to seek to recover costs directly from GZN, namely, by way of s 46 of the LAC Act. This provision enables the Commission to determine the amount, if any, payable to the Commission by the legally assisted person in respect of the costs and expenses of those legal services: s 46(1) of the LAC Act. An amount required to be paid must be paid in such manner, and within such time, as the Commission directs: s 46(2) of the LAC Act. In addition, this amount may be recovered by the Commission as a debt in a court of competent jurisdiction: s 46(3) of the LAC Act.
As is noted in Legal Aid NSW's written submissions, as a matter of policy, Legal Aid NSW has not been in the practice of levying a final contribution from people for whom legal aid funding is provided for separate representation in the guardianship jurisdiction and hence this application to be joined as a party so that a costs award may be sought.
However, joining Legal Aid NSW as a party for the sole purpose of seeking a costs award would not, in the Tribunal's view, be a decision that would be consistent with the principles set out in s 4 of the Act and specifically, the principle that GZN's welfare and interests be given paramount consideration.
It is well accepted that the jurisdiction exercised pursuant to the Act is a protective one. As observed by Lindsay J in P v NSW Trustee and Guardian [2015] NSWSC 579, [52] the 'purposive character' of the protective jurisdictions,
is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able to take care of themselves (Secretary Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the state, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34). [Emphasis added]
The centrality of the principles contained in s 4 of the Act is reinforced by: cl 5(1) of Sch 6 of the CAT Act which provides that, when exercising a 'Division function', the Tribunal is under a duty to observe the principles set out in s 4 of the Act and s 36(5) of the CAT Act which provides that nothing in s 36 of that Act requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
The making of the order sought by Legal Aid NSW would, in the Tribunal's view, give greater weight to factors other than GZN's best interests as an individual, notwithstanding the significance of those broader factors as outlined in Legal Aid NSW's written submissions.
Nor, in the Tribunal's view, would it be consistent with the guiding principle to resolve issues in proceedings justly, quickly, and cheaply if the time and cost of guardianship proceedings were extended to deal with costs applications by Legal Aid NSW in circumstances such as this in relation to GZN, given that Legal Aid NSW could, if it so chose, rely on s 46 of the LAC Act, to seek to recover its costs. GZN's estate has been the subject of a financial management order since 2012 and the management of her estate is now committed to the NSW Trustee and Guardian. It is open to Legal Aid NSW to seek the costs it determines are payable by GZN and to seek those costs from the NSW Trustee and Guardian as her financial manager. There was nothing contained in Legal Aid NSW's submissions to suggest this course is not open.
Given the policies and objectives of Legal Aid NSW, the provisions of s 46 of the LAC Act and GZN's financial position, it may well be appropriate for Legal Aid NSW to request payment from the NSW Trustee and Guardian. Having regard to the stated position of the NSW Trustee and Guardian, it appears likely these costs, which the Tribunal accepts were for GZN's benefit, will be paid. This is a matter that the NSW Trustee and Guardian, or in other cases such as this any other appointed financial manager, may consider in the proper discharge of their functions.
The application made by Legal Aid NSW to be joined as a party is therefore dismissed.
[7]
Should an order for costs be made?
It is not necessary for the Tribunal to determine this issue given the finding it has no jurisdiction to make the order in the absence of the joinder.
[8]
Conclusion
Having regard to the foregoing, the applications of Legal Aid NSW for costs and joinder are both dismissed.
[9]
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
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 November 2019
Parties
Applicant/Plaintiff:
Alcan (NT) Alumina Pty Ltd
Respondent/Defendant:
Commissioner of Territory Revenue
Legislation Cited (7)
Civil and Administrative Tribunal Regulation 2013(NSW)