BDO v Public Guardian

[2016] NSWCATAD 89

NCAT Administrative and Equal Opportunity|2016-01-21

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2016-01-21

Source

Original judgment source is linked above.

Judgment (42 paragraphs)

[1]

Introduction

This is an application for an order of costs to be made against the Public Guardian. The application follows my decision to set aside a decision made by the Public Guardian in relation to the accommodation of a young disabled man under its guardianship. In order to maintain his privacy, and in accordance with the publication restriction that applies in this matter, I will refer to the man simply as 'the son'.
The son was disabled as a result of a work injury in 2002. In 2008, following lengthy court proceedings, the son, who lives in NSW, was awarded in excess of $15 million by way of damages. In 2013, a decision was made by the Public Guardian (and confirmed on internal review) that the son should instead be accommodated in the United States of America ('USA') with his mother, who has been provided with the anonymisation CBY and who, in this decision, will be referred to as 'the mother'.
The father, who has been given the anonymisation BDO and who will be referred to as 'the father' had put forward an alternative proposal that the son remain living in Australia. On 17 December 2013, the father applied to the Administrative Decisions Tribunal (NSW) for a review of the decision to have the son accommodated in the USA with his mother.
The Administrative Decisions Tribunal was abolished when this tribunal, the NSW Civil and Administrative Tribunal ('the Tribunal') was established on 1 January 2014. By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 No 2, these proceedings are now proceedings before the Tribunal.
The mother was subsequently joined as a party to the proceedings and a Guardian ad Litem, Ms Ramjan, was appointed to represent the son's interests.
On 17 July 2015, I set aside the decision of the Public Guardian that the son be accommodated in the USA under the care of his mother. At the time of this decision, the son was being accommodated in a residential facility. In substitution for the Public Guardian's decision that the son be accommodated in the USA with his mother, I ordered that the son be accommodated in Australia in a purpose-built home to include self-contained quarters for the father, with a separate entrance, and self-contained quarters for the mother, with a separate entrance. I also ordered that services for the son be provided by an external care agency and include a care co-ordinator, who is unrelated to the son, to liaise with the mother and the father.

[2]

Legal principles

The NSW Civil and Administrative Tribunal has, and may exercise, all the functions the Administrative Decisions Tribunal previously had. The applicable legislation is that which would have applied if the Civil and Administrative Tribunal Act had not been enacted. Consequently, the Administrative Decisions Tribunal Act 1997 ('the ADT Act') as in force at 31 December 2013 applies to this matter. (cl 7(3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013; Trad v Jones (No 8) [2015] NSWCATAD 64).
Section 88 of the ADT Act provides as a general rule that each party will bear their own costs. Section 88(1A) then provides that the Tribunal may exercise its discretion to award costs 'but only if it is satisfied that it is fair to do so' having regard to the following factors: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.
The NSW Court of Appeal considered s 88 in AT v NSW Commissioner of Police [2010] NSWCA 131 at [33], holding that, although a costs order could be made only if the relevant criterion in s 88 was satisfied, the phrase 'fair to do so' imposes 'a relatively low hurdle for an applicant seeking an order' under s 88. The Court held that 'the criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party.' The Court noted that other factors will bear on the Tribunal's discretion whether to award costs, including "the nature of the jurisdiction of the Tribunal which is invoked" (at [33]).
In that regard, the NSW Supreme Court has noted that while a costs order is not the usual course in the guardianship jurisdiction, the appropriate question for costs in the jurisdiction is "what order is proper to be made": Snelgrove v Swindells [2007] NSWSC 868.
In the recent decision of OLL [2014] NSWCATGD 40, it was noted that while it was not usual for a costs order to be made in the guardianship jurisdiction it: " ... was well recognised in a series of cases that the Tribunal's protective jurisdiction [referring to the Guardianship Tribunal] required that people should not be discouraged from bringing substantial and well-motivated applications to the Tribunal for fear of a costs order." [at 44]
It has been noted that the replacement to s 88 of the ADT Act, namely s 60 of the Civil and Administrative Tribunal Act (which provides for "special circumstances" as the basis for an award of costs), is more narrowly framed and sets a higher bar for the making a costs order: Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130, [16].
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 (24 December 2014) Lindsey J made general comments as to the issue of costs in matter arising out of proceedings initiated in the Children's Court: The Court's approach to orders for costs in proceedings which invoke its protective jurisdiction is different from that which applies in ordinary civil litigation. [at 28].
The ordinary rule in protective proceedings is that the Court may exercise its discretion as to costs, not by reference to a rule that costs follow the event, but having regard to what, in all the circumstances, seems proper: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 at [50]. Not uncommonly, each party is left to bear its, his or her own costs.
In exercising functions under the Guardianship Act 1987 (NSW) ('Guardianship Act') with respect to person who have disabilities, the Tribunal must observe the following principles set out in section 4 of the Act: (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.

[8]

Public Guardian's response

According to the Public Guardian, the acceptance by both the father and the Guardian ad Litem that these proceedings were protracted and raised a "number of complex issues" is an acknowledgement that the questions to be resolved in these proceedings were of substance. Underlying that acknowledgment, the Public Guardian submits, is the implicit acceptance that there was some merit in the Public Guardian's initial accommodation decision, confirmed on internal review.
In his submissions, Counsel for the Public Guardian provides a chronology of events relevant to the eventual provision of the Global documents, which includes details of:

the Public Guardian's correspondence with Global in relation to its failure to produce documents in answer to the Tribunal's summons;
enquiries made by the solicitors for the Public Guardian with the Supreme Court in an effort to locate the Global documents;
contact between Global and the solicitors for the Public Guardian following the location of relevant material by Global, and the Public Guardian's subsequent provision of the documents to the other parties;
the Public Guardian's perusal of its own electronic material relating to Global, which did not form part of the original s58 material, to gauge its relevance to the proceedings and its subsequent provision to the other parties as a matter of fairness;
the work of its solicitors in compiling a tender bundle containing the material provided by Global pursuant to summons and the supplementary material included by the Public Guardian;
the work of its solicitors in compiling an indexed tender bundle including the Global documents, other material produced under summons issued to other bodies and additional documents that the Public Guardian considered relevant.

According to the Public Guardian, it does not follow that because the matter was complex and required the Tribunal to resolve a number of complex issues, it would therefore be "fair" to award costs against the Public Guardian. Rather, the Public Guardian submits, the factual complexity of this matter, which is accepted by all parties, is a significant factor weighing against awarding costs to any party in these proceedings.
According to the Public Guardian, the father conducted the proceedings in a way that unnecessarily disadvantaged the Public Guardian by causing an adjournment on 28 March 2014 following the father's late application for a Guardian ad Litem to be appointed for the son, without giving prior notice to the Public Guardian of his intention to make such an application. The Tribunal allowed the application, which was opposed by the Public Guardian, and the matter was then adjourned to allow for the appointment of a Guardian ad Litem. This, the Public Guardian submitted, caused a significant disadvantage given that the Public Guardian had arranged for several witnesses to be available for cross-examination that day.
In relation to the father's submission that the Public Guardian unnecessarily disadvantaged the other parties in delaying the concession that no weight should be placed on the son's wishes, the Public Guardian notes that both the Public Guardian and the Tribunal had a duty to observe the principle that the views of a person with a disability in relation to the exercise of those functions should be taken into consideration, and that the parties had agreed, from the outset, that one issue was the identification and depth of the son's wishes.

[9]

Tribunal finding

I am not satisfied that the Public Guardian conducted the proceedings in this case in a way that unnecessarily disadvantaged another party to the proceedings.
The legal representatives for the Public Guardian were, at all times, organised, efficient and unfailingly helpful to the Tribunal. They complied with all orders and directions of the Tribunal; they complied with the relevant legislation and were neither deceptive nor vexatious in their conduct of the matter before the Tribunal. Throughout proceedings that were difficult and lengthy and emotionally demanding, the legal representatives of the Public Guardian continued to adhere to their responsibilities as model litigant.
The father has submitted that the Public Guardian unnecessarily disadvantaged the parties by initially placing weight on the son's wishes before conceding that there could be no such reliance placed upon the views of the son. I do not accept this submission. One of the issues identified and agreed on by the parties was the issues of the son's wishes. This was an issue that had to be considered by the Tribunal in accordance with s4 of the Guardianship Act and so was correctly raised in the proceedings. Only once the relevant expert evidence had been provided to the Tribunal was the Public Guardian in a position to concede that reliance should not be placed on the son's wishes. The Public Guardian quickly and appropriately made the requested concession.
The Guardian ad Litem has submitted that the Public Guardian unnecessarily disadvantaged the other parties by failing to provide its electronic file in relation to Global at the outset. I do not accept this submission. The evidence before the Tribunal is that in its original decision and on review, the Public Guardian considered not the primary documents of Global but rather a summary prepared by Global in relation to the son's care. Only later in the proceedings was the question of the relevance of Global's primary documents raised.
On the evidence before me, I accept that the difficulties in gaining the requested documents from Global prompted a search by the legal representatives for Public Guardian for the material. I accept that when the Public Guardian located documents pertaining to Global that appeared relevant to the proceedings and of assistance to the other parties, the Public Guardian ensured the documents were provided to all parties.
With the benefit of hindsight, it would have been helpful to the Tribunal and to the parties to have had access to this material earlier in the proceedings. It is, however, important, to bear in mind that these are review, not judicial, proceedings where, in accordance with section 3 of the ADT Act, the role of the Tribunal is to determine matters in an effective, efficient, informal and expeditious manner. The document summarising the care given to the son by Global, as used by the Public Guardian in its accommodation decision, was provided to the Tribunal in accordance with the s58 material. It is not the job of he Public Guardian to inundate the Tribunal and the other parties - who are, in this jurisdiction, often unrepresented - with reams of material that may not be relevant to the proceedings.
It was, however, appropriate for further material to be requested on the basis that it might be relevant to one of the agreed issues in the matter. When Global initially proved unhelpful in the provision of this material, the Public Guardian correctly made enquiries to assist the parties and the Tribunal in this regard. In the circumstances of the case, I am not satisfied that the other parties were unnecessarily disadvantaged by the conduct of the Public Guardian in relation to the provision of the original Global documents.

[29]

Public Guardian's response

The Public Guardian disputes the Guardian ad Litem's contention that there was no tenable factual basis for the Public Guardian's determination that the father's behaviour was such that his proposal was not a viable alternative.
According to the Public Guardian, this submission is at odds with the findings of the Tribunal concerning the father's aggressive behaviour towards care staff. While the Public Guardian concedes that there were also findings about the mother's conduct, in regard to the father's conduct, the Public Guardian notes the following findings by the Tribunal in this decision:

"In relation to the care provided to the son by Global between 2003 and 2008 when Global was caring for the son, I accept, in light of the written evidence of carers in the tender bundle that, on occasions, the father was rude and aggressive to staff, such that one staff member refused to work with the son and another complained of bullying behaviour." (at [403], Reasons for Decision)
"the father's aggressive and intimidator[y] behaviour towards staff resulted in an access order being made by the Public Guardian limiting the father's time with the son and the father's partner's time with the son. I accept on the evidence that the father's aggressive behaviour often arose after he had been drinking." (at [411], Reasons for Decision)
"I accept that an access order was also made by the Public Guardian limiting the father's partner's time with the son and preventing her from having any contact with care staff' (at [412], Reasons for Decision)
"There is no evidence of any access order being made to limit the mother's time with her son." (at [413], Reasons for Decision)
"Whilst his evidence was inadequate in many respects, I accept Mr McDermott's statement that the mother was less aggressive in her behaviour towards care staff'(at [414], Reasons for Decision).
"[T]he father's behaviour towards Global carers was unacceptable and indicative of a man who finds it difficult to control his temper. This does not mean that his complaints about his son's care were unfounded..." (at [421], Reasons for Decision)
"The evidence before me is that the father has a propensity to become aggressive when frustrated by what he perceives to be inadequate care for his son and when he feels excluded from his son's care management." (at [425], Reasons for Decision)
"The behaviour of the father and his partner towards the mother is both disappointing and inappropriate. The mother has undertaken many trips to Australia to visit the son and to be made to feel unwelcome and subject to abuse is unacceptable. It is clear that the mother and the father should have nothing to do with each other...." (at [440], Reasons for Decision).

[39]

Public Guardian response

The Public Guardian denies that it failed to fulfil its model litigant responsibilities in these proceedings.
In particular, the Public Guardian denies that it had an obligation to inform the Tribunal and the other parties of the status of the Global summons, given that the Tribunal was aware that the documents had not been provided, as the registry and the sitting member stood the summons over on several occasions, and any party could have ascertained the status of the summons by attending the return of summons or by inquiring with the registry.
The Public Guardian denies delaying the provision of the Global material to the parties.
The Public Guardian denies a breach of its duty as model litigant by failing to enter into mediation with the father, despite the refusal of the mother to enter into mediation. It is the Public Guardian's position that mediation would have been pointless without the involvement of the mother, as the agreement of all parties was required for the matter to be resolved by mediation.
The Public Guardian submits that the differences between the mother's position and the father's position meant that this matter required resolution by the Tribunal and was not capable of being resolved between the parties in a consensual manner.
In the Public Guardian's submission, it would not be fair in the circumstances to award costs against the Public Guardian given that the Public Guardian assisted the Tribunal (and the other parties) by ensuring that relevant material was before it in these proceedings, including:

the provision of, at its own expense, an expert report from Baker & McKenzie regarding the US tax consequences;
the facilitating and funding of a further expert report by Mr David Pollan, following a request by the other parties and the Tribunal to address a series of further questions raised by the other parties in the course of cross-examination;
the provision of material to other parties in fairness, including material by Global in relation to complaints about the mother;
the provision of updated calculations to the Tribunal by the NSW Trustee and Guardian in relation to the viability of the mother's proposal, following a request from the father;
the provision of a hard copy of the exhibits filed in the proceedings, as well as additional documents, to the Guardian ad Litem's solicitor;
the provision, at the Tribunal's request, of copies of the USB evidence of the Guardian ad Litem to be distributed to all parties.

[41]

conclusion

For the reasons set out above and as summarised below, I am not satisfied that it would be fair to award costs against the Public Guardian either in favour of the father or the Guardian ad Litem. In reaching this decision, I have had regard to the following considerations: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.
In reaching my decision, I have also considered the principles set out in section 4 of the Guardianship Act.
I accept that the proceedings in this case were long and complex and that costs were correspondingly incurred by parties to the proceedings.
I do not, however, accept that it would be fair to make a orders order against the Public Guardian. A summary of my reasons for reaching this conclusion is set out below:

the legal representatives for the Public Guardian adhered to their responsibilities as model litigant and were helpful and organised and efficient. They complied with the relevant legislation and were neither deceptive nor vexatious in their conduct;
the fact that the Public Guardian did not provide the electronic file in relation to Global at the outset does not, in my view, warrant a costs order being made against the Public Guardian. The summary of the Global documents as considered in the Public Guardian's decision was provided as part of the s58 documents and when Global proved initially non-responsive to summons requests, the Public Guardian undertook further investigations to locate relevant documents, which were then provided. Provision of the documents at the outset would have been helpful, as it transpired, but, in the circumstances of the case, it would not be fair to award costs against the Public Guardian for this reason;
on the evidence before me, I am not satisfied that the Public Guardian was responsible for prolonging unreasonably the time taken to complete the proceedings. To the contrary, the Public Guardian was well-prepared and efficient in the conduct of the proceedings;
in my view, the Public Guardian cannot be held responsible for the repeated failure of Global to reply to the Tribunal's summons. The Public Guardian did not have the power to require Global to produce the requested material.
I find that, following the repeated failures of Global to answer the Tribunal summons, the Public Guardian undertook further investigations to locate any material that might be relevant to the proceedings and obviate the need to delay proceedings while waiting for Global to produce the requested material. The investigations undertaken by the Public Guardian were fruitful in that electronic documents pertaining to Global were located and subsequently distributed to all parties. This was an immense administrative task undertaken by the Public Guardian. I do not agree that these documents should have been located and produced by the Public Guardian at the outset. The accommodation decision of the Public Guardian relied upon an executive summary of Global Health material and that summary was made available to all parties as part of the s58 material. The failure to also provide the primary documents did not make the Public Guardian remiss in its duties as model litigant. Indeed, once the request was made by the Guardian ad Litem to view these documents, the Public Guardian took steps to ensure this was done.
issues of the son's wishes were correctly raised by the Public Guardian to enable the Tribunal to consider them in accordance with its obligations under s4 of the Guardianship Act.
it was appropriate for Public Guardian to present evidence about the financial viability of the mother's proposal. The fact that I found that the father's proposal was more financially viable does not mean that the claim in relation to the mother's proposal had no tenable basis in fact or law nor that it should be used to support an application for costs against the Public Guardian;
I do not agree that it was inappropriate for the Public Guardian to continue to contend that the son should be accommodated with the mother on the basis that the father's poor behaviour resulted in Global Health being unable to provide appropriate care to the son. There was evidence before the Tribunal of the father's poor behaviour towards care providers and also towards the mother. This was relevant to any accommodation decision and something I had to consider in reaching my final decision. The Global documents, when they were provided, confirmed the father's inappropriate behaviour towards care providers and towards the mother. It was appropriate for the Public Guardian to continue to press its concerns in relation to the father's behaviour towards Global Health
I am not satisfied on the evidence that the complexity of the case was exacerbated by the conduct of the Public Guardian. To the contrary, the efficiency of the Public Guardian ensured that documents were well-compiled and indexed and thereby easier to access and source by all parties. In the circumstances of the case, the Tribunal is not satisfied that it would be fair to award costs against the Public Guardian having regard to the nature and complexity of the proceedings.
No additional matter raised by the parties satisfies me that it would be fair to award costs against the Public Guardian. In light of the mother's refusal to take part in mediation, the Public Guardian cannot be held responsible for the failure of mediation to take place. The Public Guardian ensured relevant and updated material was before the Tribunal and provided to the other parties as required.

BDO v Public Guardian

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Judgment (42 paragraphs)

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Legislation Cited (4)

Cases Cited (9)