CXB v Biripi Aboriginal Corporation Medical Centre

Determination of matter on the papers

1. Biripi indicated, in its costs application, that it did not require an oral hearing. The applicants were directed to make submissions about whether the matter was suitable to be determined on the papers. The applicants did not address this matter in their submissions.
2. We are satisfied, for the purposes of s 50(2) of the Civil and Administrative Tribunal Act 2013 ("NCAT Act") that the issues for determination can be adequately determined in the absence of the parties by considering the parties' written submissions. Accordingly, we have made an order dispensing with a hearing.

Does the Tribunal have jurisdiction to determine the costs application?

1. The applicants submitted that the Tribunal does not have power to award costs because, pursuant to s 60(2) of the NCAT Act, the Tribunal's power is to award costs in relation to proceedings before it. The applicants say that the relevant proceedings were no longer "before it" because final orders had been made in each, prior to Biripi's costs application. They submit that, as it has made final orders in each proceeding, the Tribunal is now functus.
2. We are not satisfied that the words "before it" in s 60(2) of the NCAT Act limit the Tribunal's power in the way contended for by the applicants. This position is not supported by authority, nor does it promote the purpose of the provision or the NCAT Act (see Interpretation Act 1987, s 33).
3. In Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23, the Court of Appeal considered a similar argument, to the effect that the former Consumer, Trader and Tenancy Tribunal ("CTTT") had no power to award costs, after it had dismissed an appeal from an order of an adjudicator under the Strata Schemes Management Act 1996. Section 192 of the Strata Schemes Management Act provided, relevantly, that the CTTT may not make any order for the payment of costs except as specifically authorised by that Act or in relation to an order dismissing an application or appeal because the application or appeal is frivolous, vexatious, misconceived or lacking in substance. Ipp JA, with whom Beazley and Bryson JJA agreed, said at [28]-[29]: [28] Section 192 does not require an order for the payment of costs to be made contemporaneously with the dismissal of the appeal. The power is to make an order for the payment of costs "in relation to" an order dismissing an appeal. Logically, such an order can only be made after an order has been made dismissing the appeal. [29]Section 192 does not provide expressly that a costs order may only be made "when" (that is, on Ms Zouk's argument, immediately after) the appeal is dismissed. Counsel for Ms Zouk submitted that s 192, itself, is an indication that the legislature's policy was to limit the Tribunal's power to order payment of costs. That may be accepted; s 192 circumscribes the Tribunal's power to order costs. But neither such a policy nor the words of s 192 supports a construction that limits the time at which the Tribunal is empowered to make costs orders. Moreover, there is no practical reason or policy that is derived from the general interests of justice to limit the Tribunal's power in this regard."
4. The provision considered by the Court of Appeal in the Zouk case did not contain the words "before it." However, the Court's comments that "there is no practical reason or policy that is derived from the general interests of justice to limit the Tribunal's power in" the way proposed, apply with equal force to the construction of s 60(2) of the NCAT Act.
5. In Paras v Legal Services Commissioner (No 4) [2007] NSWADTAP 39, the Appeal Panel of the former Administrative Decisions Tribunal ("ADT") considered an argument that, because the costs applicant had not applied for costs within 28 days of an interlocutory decision, the Panel was functus officio and no longer had the power to award costs in relation to that decision. The ADT Appeal Panel also had power to award costs "in relation to proceedings before it," under s 88 of (what was then) the Administrative Decisions Tribunal Act 1997. The Panel said (at [23]), in relation to the functus argument: "This argument is also misconceived. Courts and tribunals regularly, though not invariably, defer decisions on the costs of interlocutory proceedings until after the proceedings as a whole have concluded. There is no rule of law or practice to the effect that if the costs of interlocutory proceedings have not been expressly reserved, they cannot be dealt with in a later order for costs."
6. The Paras case is slightly different from the present, because this involves an application for costs made after a final decision rather than an interlocutory one. However, the same principle applies in relation to a final order. In Perry Properties Pty Ltd v Chief Commissioner of State Revenue [2011] NSWADTAP 1, the ADT Appeal Panel dealt with the argument that it was functus after determining an appeal, with no power to award costs in a similar way. It rejected that argument (at [20]-[22]) as follows: "…It is appropriate in most cases to make an application for costs within the context of the Appeal Panel (or Tribunal) hearing, based on assumptions as to the outcome; otherwise, the Appeal Panel may determine any such application after the receipt of the reasons for decision. Both sides contend that applications for costs were made before the Appeal Panel (although there is an issue about whether an application was made, or merely foreshadowed). There is no note in the submissions or in the decision of any such application, but in our view the jurisdiction of the Tribunal does not depend on whether such an application was made at the time. While it is preferable to have the costs issue argued at the same time as the main proceedings, it does not mean that a failure to do so renders the Appeal Panel functus in relation to costs. Nor, if such an application was made, was a decision "implicitly" made to refuse it. The question of costs has not yet been determined; s 88 provides for an application for costs to be made to the Appeal Panel, and such an application has been made. Accordingly, the Appeal Panel has jurisdiction to hear the argument as to costs."
7. In our view, this Tribunal's power to award costs under s 60 of the NCAT Act is not distinguishable (in a temporal respect) from the ADT's former power under the Administrative Decisions Tribunal Act 1997. Both allow the award of costs in relation to proceedings "before" the relevant tribunal; in both cases, that means, in our view, that they must be proceedings commenced in the Tribunal and the costs must be "in relation to" those proceedings. The words do not impose a temporal limitation on the Tribunal's power to hear a costs application.

Are there special circumstances warranting an award of costs?

1. The usual rule is that each party pays the party's own costs: NCAT Act, s 60(1). However, the Tribunal may award costs if it is satisfied that there are special circumstances warranting an award of costs (NCAT Act, s 60(2)). As the Appeal Panel said in Komadina trading as We Paint Pools v Kelleher [2018] NSWCATAP 56 at [17]: "The term 'special circumstances' is not defined in the Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]."
2. Biripi submits that there are special circumstances warranting an award of costs in the three proceedings referred to above. It relies on the following matters to which the Tribunal may have regard when determining whether there are special circumstances warranting an award of costs: 1. the relative strengths of the parties' claims (NCAT Act, s 60(3)(c)); 2. the nature and complexity of the proceedings (NCAT Act, s 60(3)(d)); 3. failure to comply with the duty in s 36(3) of the NCAT Act (NCAT Act, s 60(3)(f)); 4. other relevant matters (NCAT Act, s 60(3)(g)).

Proceedings which were withdrawn

1. Biripi did not make any submissions specifically dealing with the award of costs in circumstances where proceedings are withdrawn (2017/00014339). The Tribunal did not have an opportunity to consider the strength of the parties' claims in the proceedings for review of the decision to remove the boy, because the matter did not proceed. We do not consider that the other considerations, advanced by Biripi, constitute special circumstances warranting an order for costs in these proceedings.
2. The applicants had little choice but to withdraw their proceedings in 2017/00014339 when the case management of the boy, who had been removed from their care, was transferred to Family and Community Services. Ostensibly, Biripi no longer had power to restore him to their care, even if it had wished to do so. There may be issues about the validity of the exercise of the power to transfer the case management of the boy in the circumstances of this case, but these were not raised and we did not consider them.
3. We dismiss the costs application insofar as it relates to proceedings 2017/00014339.

Relative strength of parties' claims (NCAT Act, s 60(3)(c))

1. Biripi relies on the circumstance that it was wholly successful in the proceedings and that the Tribunal made adverse credit findings against the applicants.
2. The applicants say, in response, that an independent assessment of allegations against them, which was commissioned by Biripi and occurred prior to the hearing, substantiated only one of the allegations and identified that the relationship between the applicants and Biripi had a fraught history. They also submitted that at no time did Biripi make an application to strike out the proceedings.
3. We do not consider that the applicants' submissions advance their case very far on this point. It is true that the independent assessment to which they refer found only one allegation against the foster father to be substantiated. However, the assessor made some very critical comments about the applicants. The assessor commented, for example, that although the children's disclosures were "not enough to reach sustained findings," they were "enough to raise serious concerns about carer competencies". Further, the issue is not what the assessor found, but the relative strength of the parties' cases in the Tribunal. It is not to the point that Biripi did not apply to strike the proceedings out; in a case which was heavily dependent upon evidence, such an application would have been very likely to fail. Nor is it relevant that the relationship between Biripi and the applicants was poor.
4. The circumstance that Biripi was wholly successful in the proceedings does not mean, necessarily, that there was a large disparity in the strength of the parties' claims, such as would constitute special circumstances. It will often be the case that one party is wholly successful in proceedings, yet both parties may have reasonable claims.
5. Biripi's claims in the proceedings concerning cancellation of the applicants' authorisation as authorised carer were stronger in relation to the foster father than they were in relation to the foster mother. We found that the foster father poses an unacceptable risk of harm to children, which is a serious finding against him (Primary Decision at [106]). In relation to the foster mother, we considered whether the correct and preferable decision would be for her to be given a conditional authorisation, limiting her to looking after one child at once (Primary Decision, [111]). Ultimately, we decided that she was not a suitable person to be an authorised carer (at [112]), but the fact that we considered a conditional authorisation indicates that she had advanced some reasonable claims.
6. The proceedings concerning the removal of the three girls from the applicants' care became futile, given our decision that the cancellation of their status as authorised carers should stand. However, Biripi did not cancel their authorisation as authorised carers until many months after they had applied for review of Biripi's decision to remove the girls from their care. During the hearing, the applicants did not know what the Tribunal's decision on review of the authorised carer decision would be. The evidence relevant to each proceeding was the same, or substantially the same.
7. Biripi's claims were stronger than those of the applicants, as evidenced by the outcome of the case. Until the applicants had given evidence, however, it was not clear how much stronger those claims were, or even that they were stronger.
8. We do not consider that the relative strengths of the parties' claims is a circumstance constituting special circumstances in this case, either alone or taken with other factors. It is not a situation in which one party had overwhelmingly strong claims and the other party's claims were hopeless, or where it was apparent from the outset that one party's case was much stronger than the other's.
9. The findings against the applicants which Biripi describes as "adverse credit findings" are perhaps best understood as a "relevant matter" within s 60(3)(g), rather than a matter going to the strength of the parties' claims. It is discussed under that heading.

Nature and complexity of the proceedings (NCAT Act, s 60(3)(d))

1. Biripi submits that the proceedings were factually complex, involving consideration of a large volume of evidence. Biripi also submitted that the proceedings raised some significant legal issues, some of which were the subject of further written submissions following the hearing. It says it would not have been possible for Biripi to conduct the proceedings without proper legal representation.
2. There was a large volume of material in the proceedings and many allegations had been made against the applicants. Volume does not necessarily equate to complexity. The proceedings were fairly straightforward in terms of legal issues, with the exception of a legal issue which arose at the end, which it was ultimately not necessary to resolve (see Primary Decision at [112]). The proceedings involved a lot of disputed evidence, but are not properly described as being complex.
3. We accept that the Tribunal was assisted by Biripi's legal representatives and that the case was presented much more effectively with their assistance than it may otherwise have been. However, we do not agree that it "would not have been possible" for Biripi to conduct the proceedings without legal assistance. The Tribunal frequently has self-represented parties appearing before it and has a duty to ensure that the parties to the proceedings before it understand the nature of the proceedings and, if requested, to explain procedural matters (NCAT Act, s 38(5)).
4. We take into account the nature of the proceedings, in the sense that there was a lot of disputed evidence and a need to cross-examine witnesses, when considering whether special circumstances exist in this case. We accept that Biripi would have had difficulty conducting its case without legal representation, due to the large number of factual disputes between the parties and the large amount of material.

Failure to comply with s 36(3) duty (NCAT Act, s 60(3)(f))

1. Biripi contends that the applicants' evidence did not fully address the matters contained in its material and says this was contrary to the duty imposed by s 36(3) of the NCAT Act. Section 36(3) provides, relevantly, that a party has a duty to cooperate 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. The guiding principle is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (NCAT Act, s 36(1)).
2. Biripi submits that the absence of affidavit evidence was in some part explained by the difficult history of the matter. However, it also submits that, during cross-examination of the applicants, it became apparent that they had not considered Biripi's material themselves, and this extended the time it took to cross-examine them.
3. The applicants did file affidavit evidence in the matter. The foster father's affidavit was 117 paragraphs long, which is substantial. Without any criticism of Biripi, we note that it filed voluminous material. Whilst it would have been better if the applicants were familiar with all of this material, we do not consider that they breached their duty to co-operate with the Tribunal to give effect to the guiding principle by not fully addressing the matters contained in that material. Nor do we consider that the hearing time was greatly affected by them not being fully cognisant of the matters raised in Biripi's material.
4. We do not consider that s 60(3)(f) of the NCAT Act supports Biripi's application for costs.

Other relevant matters (NCAT Act, s 60(3)(g))

1. The Tribunal may consider any other matter that it considers relevant, when determining whether there are special circumstances warranting an award of costs (NCAT Act, s 60(3)(g)).
2. Biripi submits that it is relevant to consider that it has incurred over $40,000 in costs in conducting these proceedings. It says it is a non-government organisation providing services to Aboriginal Australians. It says that defending the proceedings has the capacity to impose a significant financial burden on the organisation in circumstances where it has finite resources.
3. There is no evidence of the amount of costs which Biripi incurred in conducting the proceedings, and we note that some of the amount claimed may relate to the proceedings which were withdrawn. In any event, we do not consider that Biripi's status as a non-government organisation providing services to Aboriginal Australians constitutes special circumstances warranting an order for costs. In Macdonald v Macdonald (No 2) [2018] NSWSC 296, Adamson J considered an argument that each party should pay that party's own costs because the plaintiff was impecunious and obtained pro bono assistance from her solicitors to conduct the hearing. His Honour rejected this argument, observing (at [4]): "While the plaintiff's impecuniosity may make it unlikely that an order requiring her to pay the defendant's costs will be complied with, it is not a reason for not making the order. The oft-cited maxim that poverty is no bar to a litigant, while relevant in the context of an application for security for costs, is not relevant to whether a costs order ought be made."
4. This is not a costs jurisdiction like the Supreme Court. Nevertheless, the principle referred to by Adamson J is relevant. The applicants were entitled to apply for review of Biripi's decision. Prospective applicants should not be deterred from applying for the review of the decision of a non-government organisation by the fear that they may have to pay its costs if unsuccessful because the agency is established for a public purpose and has limited funding.
5. As indicated above, Biripi considers that "adverse credit findings" made against the applicants are relevant to costs.
6. We commented at [88] of the Primary Decision that we considered that the foster father "gave evidence which he thought would best advance his case, even where this did not accurately reflect the true situation." We acknowledged the possibility, in that paragraph, that we were wrong about this and that, if we were wrong, he had demonstrated "a complete lack of understanding of the children's needs and feelings and those of his wife." We also commented that the foster mother's denial of allegations made against the foster father was "unpersuasive" and that her evidence about other matters was "at times, reasonably candid and, at others, less so" (at [92]-[93]).
7. We did not find that all of the evidence the applicants gave was untrue, nor did we reject all of their evidence. The "adverse credit findings" we made were qualified in the ways set out above. Nevertheless, the findings that the applicants were, to some extent, manipulating their evidence to suit their own purposes, is a matter supporting an award of costs (see Young v Smith (No 2) [2015] NSWSC 1267).

Conclusion: Are there special circumstances warranting an award of costs?

1. We do not consider that there are, in the proceedings the subject of the costs application, special circumstances warranting an award of costs.
2. The matters supporting such an award include the volume of material, the amount of disputed evidence, and the findings that the applicants were not entirely candid. Whilst we have some concerns about the last of these matters, our findings about this were not unequivocal.
3. Having considered all of the matters raised by Biripi, we do not consider that there are special circumstances in any of the proceedings, warranting an award of costs. The ordinary rule should therefore apply.

Orders

1. For the above reasons, we make the following orders: 1. A hearing of the respondent's costs application is dispensed with. 2. The respondent's costs application is dismissed.

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: 30 May 2018