The applicants, BHR and BHS, are authorised carers under Chapter 8 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). In May 2014, the applicants made an application seeking review of a decision of the respondent to remove a four year old Aboriginal boy from their care. The boy had been in the applicants' care since he was eight months of age and he was removed in December 2013.
On 25 February 2015, we determined to affirm the decision of the respondent: see BHR and BHS v Biripi Aboriginal Children's Services [2015] NSWCATAD 25 (our decision).
As the applicants had made an application for costs at the conclusion of the hearing, in our decision we also made orders for the filing and serving of submissions by the parties in regard to that application. Submissions were filed and we have set out the respective arguments of the parties in more detail below.
[2]
The Tribunal's power to award costs
The Tribunal's power to award costs is set out in section 60 of the Civil and Administrative Tribunal Act 2013 (the Act). That section is in the following terms:
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 Division 11 of Part 3.2 of the Legal Profession Act 2004 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.
As can be seen from the above, the ordinary rule is that each party to proceedings before the Tribunal pay their own costs. Subsection 60(2) gives the Tribunal a wide discretion to award costs where it is satisfied that there are 'special circumstances' that warrant an award of costs. That is, the Tribunal must be satisfied there are 'special circumstances' and these warrant an award of costs.
What constitutes 'special circumstances' is one or more of the matters set out in subsection 60(3) of the Act.
Section 36(1) of the Act sets out the "guiding principle" for the Act and the procedural rules, in their application to proceedings in the Tribunal. These are to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
Subsection 36(3) of the Act sets out the persons who are to co-operate with the Tribunal to give effect to the above guiding principles. That subsection is in the following term:
(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.
[3]
The applicants' submissions
The essence of the applicants' submissions is that the respondent should be ordered to pay their costs due to its considerable delays in providing its decision to the remove the boy from their care and in providing relevant material in these proceedings. The delays the applicants assert to have caused them considerable prejudice and costs in these proceedings.
The costs which are sought are those of their solicitor, Mr Hagan, their agent, Mr Raison and other costs associated with these proceedings. Mr Raison had appeared on behalf of the applicants initially and provided ongoing assistance, on behalf of the applicants, to Mr Hagan.
In regard to the respondent's delays, the applicants noted that the respondent had failed to appear, on 29 May 2014, at the hearing of the applicant's interim order application at the first directions date. This resulted in a further hearing on the interim order application 3 June 2014. In the absence of a satisfactory explanation having been given as to why there was no appearance on 29 May, the applicant's seek costs thrown away for that day.
The next delay relied on by the applicants was the respondent's failure to comply with consent orders that were made on 3 June 2014. These orders included filing and serving the section 58 documents, by 13 June 2014 and an expert's report in regard to attachment, by 20 June 2014. The matter was also set down for hearing, by consent, on 4 July 2014 at Port Macquarie. In the absence of the respondent having complied with the orders made, the appellants relisted the matter for directions prior to the hearing date. At this directions hearing (26 June 2014), the hearing date was confirmed and the respondent was given additional time within which to file and serve its evidence (including the attachment report) and material on which it relied (e.g. the section 58 documents).
Accordingly, the applicants' seek their costs in regard to this directions date and the subsequent directions date on 2 July 2014.
The applicants' noted that the respondent only provided the agreed and ordered attachment assessment report shortly before the further adjourned hearing on 22 September 2014, which was the third day of hearing.
The applicants also contended that on the first day of hearing, their evidence had been succinctly given within half a day, however during the cross examination of Ms Wood it became apparent that she had been incomplete and selective in the documents she provided. As a result, her cross-examination was lengthy and the respondent's evidence could not be concluded that day.
The applicants' contend that the adjourned hearing date of 11 August 2014 was also inadequate due to the respondent's failure to have the agreed attachment assessment undertaken. The applicants contend that they had agreed to the adjourned hearing being convened in Sydney so that there were no further delays. Notwithstanding this agreement, the matter could not be finalised on this day. Accordingly, the applicants seek their costs of the hearing on 4 July and 11 August.
The applicants also noted that following the initial hearing on 4 July 2014, in Port Macquarie, they had proposed a settlement of the proceedings to the respondent. No reply to that settlement was ever provided.
At the final adjourned hearing on 22 September 2014, an assessment report was provided. The applicants also assert that there had been a lack of disclosure as to the briefing notes provided to the psychologist undertaking the attachment assessment prior to the 22 September hearing. The applicants also expressed concern about the relatively few hours, on a single visit the psychologist was able to assess the child's attachment to the applicants, especially where there had been a separation of about 8 months.
It is the applicants' contention that their legal costs and out-of-pocket expenses were avoidable had the respondent acted appropriately and reasonably from the time the child was removed from their care. They assert they did as much as they could by themselves and only engaged a lawyer when there were delays and non-compliance by the respondent. These delays were prejudicial to their application to have the child restored to them.
The applicants also provided the Tribunal with a schedule of the total costs in regard to the preparation and conduct of these proceedings.
[4]
Respondent's submissions
In its submissions the respondent addressed each of the areas of delay raised by the applicants.
In regard to the applicants' application for costs thrown away in the respondent failing to appear at the stay application hearing and directions on 29 May 2014, the respondent contended an order for costs could not be made as the applicants had not instructed a solicitor at that time.
In regard to the late submission of the section 58 documents, the respondent noted that the documents were in fact provided on 1 July 2014 which was in advance of the first hearing day on 4 July 2014. It was submitted that the first day of hearing went ahead successfully.
In regard to the second day of hearing, the respondent contended that an additional day of hearing would have been required in any event given the respondent's lengthy cross examination of Ms Lambert. Accordingly, there is no basis, on which the applicants could make a claim for costs incurred in regard to the second day of hearing.
In regard to the delays associated with the assessment attachment report, the respondent contended that at the second day of hearing, in Sydney, the applicants argued that the psychologist had not been fairly instructed and briefed. On this basis, the applicants' were given (and took) the opportunity to provide additional material to the expert psychologist. The respondent noted that the psychologist's enquiries ultimately involved arranging meetings between the expert and the child with the respective families (i.e. the applicants and their children and the current carers and their family). The respondent submitted that this was all facilitated during the second day of hearing. These additional efforts, the respondent argued were undertaken so that the expert was briefed in a fair and impartial manner and hence, no time was wasted.
In regard to the applicants' offer of settlement of 25 July 2014, the respondent contended that the decision of the Tribunal vindicated the respondent's rejection of the offer, as contained in the applicants' correspondence of 25 July 2014. Accordingly, the rejection was reasonable and does not form a basis for awarding costs.
The respondent submitted that while the Tribunal found the respondent's handling of the decision making process could have been better, this was not a basis on which costs should be awarded which are intended to be compensatory and not punitive in nature. It was noted that none of the matters raised by the applicants with respect to the manner in which the proceedings took place, once proceedings had commenced amount to a basis to depart from the usual order that each party pay their own costs.
The respondent also argued that the proceedings were strongly contested and were both factually and logistically complex and it was for these reasons they were heard over three days in both Port Macquarie and Sydney, not any conduct on behalf of the respondent.
[5]
Consideration
As we have noted above, subsection 36(3) of the Act provides that a party to proceedings before the Tribunal has a duty to co-operate so as to give effect to the guiding principle in that section. This duty expressly includes a duty to comply with the directions and orders of the Tribunal: see Karina Boscolo (applicant) v Acxiom Australia Pty Limited (respondent) [2015] NSWCATAD 28 at [15].
The applicants' application in this case was an application for external administrative review of a decision the respondent had originally made and implemented in January 2014. It was also a decision involving a young child who had been in the applicants' care since he was very young. While we affirmed the respondent's decision, this does not mean that the respondent's conduct in the course of these proceedings cannot give rise to special circumstances warranting an award of costs to the applicants. Subsection 60(2) clearly provides that where the conduct of either party to proceedings is such that it unnecessarily disadvantaged the other party to the proceedings this may constitute special circumstances warranting an award of costs in favour of the other party.
In our view this application was neither factually or logistically complex and should not have taken more than one to two days, had the respondent filed and served its evidence and relevant documentation as ordered by the Tribunal, which it clearly failed to do. It was the respondent, who held all the relevant information on which the decision the subject of review had been made and who consented to a one day hearing of the matter.
While the initial orders were made by consent, it became apparent during the course of the hearing that the respondent did not have in place adequate decision making processes and procedures, which contributed to delays in providing the applicants and the Tribunal with the evidence and documentation relevant to its decision. As a consequence, the proceedings became protracted, causing an unnecessary disadvantage to the applicants who were at all times ready to proceed, having filed and served their evidence as ordered by the Tribunal. This does not mean that an award for costs in favour of the applicants should be made in regard to the entire proceedings. It can only be warranted, if at all, to the extent the applicants were disadvantaged by the respondent's conduct.
In our view, the only occasions where the respondent's delay constituted special circumstances in warranting an order for costs are as follows:
1. the respondent's failure to appear on 29 May 2014 when the matter first became before the Tribunal. As noted in paragraphs 20 and 21 of our decision, Ms Wood of the respondent was aware of the hearing of the applicants' stay hearing that day and provided her contact telephone number. However, she was not contactable and no satisfactory explanation was ever provided;
2. the directions hearing on 26 June 2014. As noted in paragraph 24 of our decision, the matter was re-listed for directions on this day due to the respondent's failure to comply with the consent orders made on 3 June 2014. As we have noted, it was agreed at the 3 June 2014 directions hearing that the matter should be listed as a matter of urgency and by reason of this urgency it was essential that the respondent file and serve the section 58 documents (i.e. section 58(1)(b) and (4) of the Administrative Decisions Review Act), as these were the documents to be relied on by the respondent in support of its decision; and
3. the adjourned hearing on 22 September 2014 in Port Macquarie. The respondent was on notice from 3 June 2014 that an assessment report was required given the length of time that the child had been in the day to day care of the applicants. Furthermore, the respondent was at all times on notice and had agreed to provide an independent report from a suitably qualified professional in this regard. That it took the respondent until sometime after the second hearing day (11 August) to make such arrangements clearly disadvantaged the applicants. The disadvantage arose because the matter had to be set down for a further day, when, had this expert evidence been sought in early June 2014 after the initial consent orders were made, an additional day of hearing would have been unnecessary.
Accordingly, we are satisfied that there are special circumstances warranting an award of costs in favour of the applicants in regard to:
1. their costs in respect of Mr Raison's attendance at the interim order hearing on 29 May 2014;
2. their costs in respect of Mr Raison having the matter relisted for directions on 26 June 2014 and his attendance on that day;
3. their costs in respect of Mr Raison's attendance at the directions hearing on 2 July 2014; and
4. their costs in respect of the hearing on 22 September 2014.
As we have noted, Mr Raison was at no time the applicants' legal representative. However, he was their appointed agent and a Notice of Representation to this effect was filed at the time the applicant's filed their application for review. Section 45(1)(b) of the Act provides that a party may be represented by another person only if the tribunal grants leave for the person to represent the party. The Tribunal is given a wide discretion to appoint, refuse, or revoke leave to appoint a person to represent a party in subsection 45(3) of the Act. In this application leave was granted to Mr Raison to represent the applicants - that leave was superseded when Mr Hagan, solicitor, was granted leave to appear on behalf of the applicants.
As the Act makes provision for representation by an agent, it has been accepted that the costs of that representation fall within section 60 of the Act: see The Law Society of New South Wales v Stephen Gary Spring & Anor [2007] NSWSC 1273, at [74] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 6) (RD) [2012] NSWADTAP 26.
Accordingly, we order the respondent to pay the applicants' costs, as assessed or agreed, in accordance with the findings set out in paragraph [34] of these reasons for decision.
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
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Decision last updated: 27 May 2015