Administrative Review - Nature of decisions under review - Whether decision made within power - Delegation of power - Decision maker not delegated power to make decision - Where decision set aside and remitted

Administrative tribunals - Procedure - Statutory Powers - Order for costs - Ordinary position that parties are to bear their own costs - Entitlement to costs - Effect of party conduct on entitlement to costs

South Australian Civil and Administrative Tribunal Act 2013 ss 37, 38, 57, 60

South Australian Civil and Administrative Tribunal Rules 2014

Mr K Tredrea with Ms A Jordan appeared for the applicant

Mr C Pager with Ms T Toubanaks, Crown Solicitor's Office, appeared for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of the parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Set aside and refer decision for reconsideration

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(c)(ii)

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 60

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 57

1. On 10 June 2025, I set aside the respondent's purported decision dated on or about 24 October 2023.
2. The proceedings were called back on for consideration of further orders.
3. The parties made submissions in respect of the Tribunal's powers pursuant to ss 37 and 38 of the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act').
4. The substantive merits of the application for review have not been ventilated. Further, significant time has now elapsed since the purported decision was made and implemented, and events relevant to what would now be the correct or preferable decision have occurred. The Tribunal is not in a suitable position to make a substituted order without commencing afresh.
5. In the circumstances, the Tribunal considers it appropriate to remit the purported decision to the respondent for reconsideration. In so doing, I make no finding and express no legal conclusion as to whether the respondent is entitled to delegate the decision-making on a remittal.
6. The Tribunal declines to issue directions or recommendations, as they are not apt where the decision failed due to having been made beyond power in circumstances that are fully described in the Tribunal's decision of 10 June 2025.
7. I decline to make ancillary orders, if I am empowered to do so, as to where the child is placed before a further decision is made. Such a decision would inevitably entail receiving contested evidence. Given that the Department is in a position to make a reconsidered decision within 21 days, it would not be expedient to embark on a course of taking evidence for an interim decision.
8. The applicant applied for an award of costs. It was opposed on the basis that the error was not deliberate and the Department's case was not unarguable. There being no relevant provision governing costs in respect of this particular type of review, the parties bear their own costs unless the Tribunal orders otherwise.[1] To make an order, the Tribunal is obliged to take into account certain matters listed in s 57(2). The list includes matter considered relevant by the Tribunal.
9. The circumstances of the impugned decision being made beyond power were circumstances within the control and knowledge of the Department. The date on which the decision was purported to have been made was the subject of differing evidence by the decision-maker. The manner in which the decision was documented obscured the decision. The decision-making process did not comply with the Department's own policy guidelines. These are relevant to the question of whether the applicant should bear the cost of having had to undertake a contested hearing to establish what the decision was, when it occurred, and whether it was within power. It is appropriate to award the applicant her costs of the proceedings, on the standard basis, to be agreed or taxed. Costs are to be calculated in accordance with r 101 of the South Australian Civil and Administrative Tribunal Rules 2014 as amended.
10. In advance of today's hearing, the respondent filed an application for confidentiality orders in respect of an affidavit of today's date. The affidavit was filed in anticipation of its use in today's hearing. I have considered the affidavit and I will make the confidentiality orders as sought in paragraphs 1 and 2 of the interlocutory application, but I do not consider that the affidavit contributes to the orders and directions I have arrived at.

1. Pursuant to s 37(1)(c)(ii) of the SACAT Act, the Tribunal sets aside the decision under review and refers the decision back to the respondent for reconsideration within 21 days.
2. The respondent is to pay the applicant's costs to be agreed or taxed.
3. Pursuant to s 60(2)(h) of the SACAT Act, the disclosure of the closed Affidavit of Konstantina Toubanakis affirmed on 18 June 2025 and the annexure KT1 to any person other than the presiding member of the Tribunal is prohibited.
4. Pursuant to s 60(2)(g) of the SACAT Act, the publication of the closed Affidavit of Konstantina Toubanakis affirmed on 18 June 2025 and the annexure KT1 is prohibited.