DZU v Foundations Care

NCAT Administrative and Equal Opportunity|2021-05-31

Background

It is necessary to briefly set out the relevant background to the applicant's external review application.
The Child the subject of the applicant's application is a girl, born in early 2018. Eleven weeks after she was born, the Child was removed from her mother and placed into the care of the applicant, an authorised carer under s 137 of the Care Act, Family and Community Services (FACS), a designated agency (see ss 138 and 139 of the Care Act as it applied in 2018).
On 19 March 2018, the Children's Court made an interim order allocating parental responsibility for the Child to the Minister. On 20 April 2018, FACS determined that the Child's placement with the applicant was a long-term placement. On 8 May 2018, case management for the Child was transferred from FACS to the respondent.
The Child has two older siblings (born in 2014 and 2017) who had already been removed from the care of their mother and placed into the care of other authorised carers. The oldest child, also a girl, has special needs and was initially moved through several placements. In May 2018, the two older siblings were placed, on an emergency (respite) basis, into the care of the authorised carers who are now their current carers.
On 17 September 2018, the Children's Court made a final order granting parental responsibility for the Child to the Minister until she turns 18 years of age.
We understand that in early 2019, the placement of the Child's older siblings became a permanent placement. At the time, management and supervision of this placement was the responsibility of the respondent. However, subsequently the responsibility for the placement of the older siblings was moved to another designated agency. Hence, the authorised carers of the older siblings ceased being carers of the respondent and became authorised carers of the other designated agency. Nevertheless, the designated agencies have facilitated ongoing contact between the Child and her older siblings.

The proceedings before the Tribunal

As we have already noted, the applicant lodged her application for external review and application for a stay on 11 September 2019. On the following day, 12 September 2019, the Tribunal made an order granting a stay of the decision of the respondent. The Tribunal adjourned the proceedings for further directions on 26 September 2019 and noted that the authorised carers of the Child's older two siblings may seek to be joined as a party to the applicant's proceedings.
On 26 September 2019, the Tribunal refused the request of the authorised carers of the Child's older two siblings. The Tribunal also made an order appointing a guardian ad litem for the Child and that the respondent was to file and serve its evidence on or before 17 October 2019. The proceedings were listed for further directions on 7 November 2019.
On 7 November 2019, the Tribunal made an order that, by 14 November 2019, the respondent was to file serve its evidence and documents (in an indexed bundle) pursuant to s 58 of the ADR Act. The Tribunal also listed the proceedings for further directions on 12 December 2019.
On 13 November 2019, the respondent filed and served its s 58 documents, which included the report of Mr Tredinnick, the assessment of Dr Piercy, minutes of a meeting held on 21 May 2019 and 2 July 2019 between officers of the respondent and the officers from the Department of Communities and Justice (see paragraph 24 above), the respondent's decision of 5 July 2019, Ms Nixon's comments and the decision of 10 September 2019. Numerous redactions were made to these documents which appear to be the names of persons other than the applicant. The basis on which those redactions were made was not explained. Nor had the respondent sought an order from the Tribunal seeking to have this information redacted (see ADR Act, s 59).
On 11 December 2019, the applicant forwarded to the Tribunal a Notice of Representation by her lawyer - Karen Hazan of Trenches McKenzie Cox.
On 12 December 2019, the Tribunal adjourned the proceedings for further directions on 16 January 2020.
On 16 January 2020, the Tribunal made orders for the filing and serving of evidence and written submissions by the respondent, the applicant and the guardian ad litem. The Tribunal also listed the matter for a three-day hearing, during April 2020, at a courthouse within regional NSW and on a date that was to be confirmed by the Registry.
Following the directions hearing, the Registry approached the parties seeking their available dates for a hearing in April 2020. When an agreed date could not be found the matter was relisted for directions on 30 January 2020. At this directions hearing, the proceedings were listed for a 3 day hearing, commencing on 11 May 2020.
On 18 March 2020, the applicant filed and served her statement of evidence dated 9 March 2020.
On 20 March 2020, the respondent filed and served its evidence which included: 1. an affidavit of Ms Nixon, sworn on12 March 2020; 2. an affidavit of Dr Piercy, sworn on 13 March 2020; 3. an affidavit of Melissa Roe, Casework Specialist of the Department of Communities and Justice, affirmed on 12 March 2020. Attached to the affidavit of Ms Melissa Roe, is a review she conducted, at the request of the respondent, about the respondent's decision, the subject of review in these proceedings, concerning the placement of the Child with her older siblings; and 4. an affidavit of Michelle Middlebosch (Ms Middlebosch), General Manager of the respondent, sworn on 16 March 2020.
On the application of the applicant, on 9 April 2020, the Tribunal vacated the May hearing and listed the matter for further directions on 4 June 2020. In the Notes to the orders made that day, the Tribunal noted that: 'One of the principal reasons for vacation of those dates was the applicant's concerns about her health.' For the record we note that due to COVID -19 restrictions at that time, the Tribunal had ceased any regional sittings or in person hearings. We note that the respondent opposed the adjournment application and also made an application that the stay order be lifted.
On 9 April 2020, the Tribunal also made an order for the applicant to file and serve her expert evidence on or before 7 May 2020. We note that on this day, the applicant had filed and served an affidavit, sworn that day, by her solicitor, Lauren Edwards (Ms Edwards). In that affidavit, Ms Edwards set out the requests that had been made, on behalf of the applicant, to the respondent, since 13 January 2020, seeking agreement for a further, jointly agreed expert assessment of the placement/removal of the Child.
On 4 June 2020, the Tribunal listed the matter for a three-day hearing commencing on 26 August 2020. The Tribunal also noted that the hearing would be conducted by audio visual link.
On 10 July 2020, the applicant filed and served further evidence and submissions. The further evidence included : 1. a further affidavit sworn by the applicant on 3 July 2020; 2. a further affidavit sworn by Ms Edwards, sworn on 2 July 2020; 3. an affidavit of Sarah Armstrong, an independent adoption assessor, sworn on 25 June 2020. Sarah Armstrong gave evidence about her involvement in assessing the applicant as a person suitable to adopt the Child and her involvement in the July 2019 decision of the respondent that the Child remain in the applicant's care; 4. an affidavit of Sharon Power, Regional Adoption caseworker of the Department of Communities and Justice, sworn on 2 July 2020. Sharon Power also gave evidence of her involvement in the July 2019 decision of the respondent that the Child remain in the applicant's care; and 5. an affidavit of Dr Julie Casey, Psychologist, sworn on 3 June 2020.
On 17 August 2020, the respondent filed and served further evidence which included: 1. an unexecuted affidavit of Ms Middlebosch; 2. a report of Dr Piercy dated 16 April 2020; and 3. a further report of Dr Piercy dated July 2020.
At the commencement of the first day of hearing (i.e. 26 August 2020), the applicant and the respondent identified the material on which they relied. Counsel for the respondent advised that the respondent did not take any issue with the applicant's care for the Child, or her ability to provide ongoing care. That is, the only issue for determination for the Tribunal was whether it was in the Child's best interest that she be placed, on a permanent basis with her older two siblings. It was the contention of the respondent that, on the material before the Tribunal, this was the correct and preferred decision.
At the commencement of the hearing we also considered the applicant's objections to the written evidence of the respondent's expert Dr Piercy. Of particular concern to the applicant were the assumptions on which Dr Piercy's opinions were based. These assumptions included remarks made in reports by caseworkers and on which Dr Piercy had relied as being true. In the absence of the caseworker being made available for cross-examination, the applicant submitted that these remarks and the opinions of Dr Piercy that were based on these remarks should not be before the Tribunal. We noted the objections made by counsel for the applicant, but in light of Dr Piercy being available for cross-examination, we accepted the written evidence of Dr Piercy, subject to weight.
The evidence filed and served by both parties was otherwise not objected to.
On the first day of hearing, the applicant gave oral evidence and was cross-examined by counsel for the respondent. Ms Sheree James was also called for cross-examination in regard to a file note she had written in October 2019, a copy of which was Annexure D to the applicant's initial affidavit. The respondent did not otherwise seek to cross-examine any of the other witnesses of the applicant.
On the second day of hearing Ms Middlebosch and Dr Piercy gave oral evidence and were cross-examined by counsel for the applicant.
As we have noted, at the commencement of the final day of hearing when other witnesses of the respondent were to be made available for cross-examination, they advised that the matter had settled.

The applicant's submissions

In support of her application for costs, the applicant relied on: 1. the material that was before the Tribunal at the hearing; 2. her application for an interim order, together with her written submissions and those of the respondent in regard to that application; 3. her application for adjournment of the hearing, together with her written submissions and those of the respondent in regard to that application; 4. the oral evidence given at the hearing; 5. an affidavit sworn by the applicant on 7 September 2020; 6. affidavits sworn by Lauren Edwards (solicitor of Trenches McKenzie Cox) on 9 April 2020 and 2 July 2020; and 7. written submissions filed and served on 17 September 2020 and written submissions in reply filed and served on 21 October 2020.
In summary, the applicant submitted that the respondent's approach to the proceedings 'was overall unreasonable' and did not; … [satisfy] its obligations to facilitate just, quick and cheap resolution of the matter or to prioritise the safety, welfare and well-being of [the Child] and caused disadvantage to the Applicant. All of this caused the Applicant to incur significant legal costs.
In her submissions, the applicant relies on three grounds that she asserts to demonstrate where the respondent had caused her to incur unnecessary costs and thereby disadvantage. These grounds were: 1. A failure to provide relevant documents; 2. ongoing reliance on the report of Dr Piercy which to the knowledge of the respondent was based on assumptions that were factually false; and 3. the refusal of the respondent to agree to a further jointly commissioned expert report.
The applicant also relied on an offer of settlement made on her behalf by her solicitor, to the respondent's solicitor, on 11 August 2020. The offer was made after the applicant had filed and served all her evidence.
In the offer of settlement the applicant's solicitor advised that, on the basis of the evidence filed and the information provided under summons from Family and Community Services of the Department of Communities and Justice, the applicant had been advised that her application for review was likely to succeed and that orders along the lines of those set out in her 3 July 2020 written submissions would be made. The applicant's solicitor went on to confirm the applicant's intention to seek indemnity costs and 'also perhaps aggravated damages for the trauma caused to her by your client's actions in these proceedings which are clearly set out in the evidence produced under Summons and filed on her behalf.'
The applicant's offer of settlement was that the respondent consent to the orders set out in her written submissions of 3 July 2020 (i.e. setting aside the decision of the respondent and substituting it with a decision that the Child remain in her day-to-day care), and that the respondent pay her legal costs incurred which were stated to be $77,000.00.
In regard to a failure to provide relevant documents the applicant submitted: 1. the section 58 documents filed by the respondent 'were the bare minimum and arguably did not satisfy the requirements of that section to provide all documents the decision-maker considers relevant'. Furthermore, the information that was provided was provided with some information being redacted which required the applicant to make ongoing enquiries and costs to have that information disclosed; and 2. the respondent's failed to provide all documents relevant to its decision the subject of review. This included information for which the Tribunal had issued a summons, at the request of the applicant. For example, on 17 March 2020, the solicitor for the applicant wrote to the solicitor for the respondent seeking a copy of the information the respondent had provided to Dr Piercy, Kim Nixon and Melissa Roe for the purpose of making their report or comment. Despite follow-up requests in May and June 2020, the respondent failed to provide a copy of the requested information. Yet, at the hearing, when cross-examining Dr Piercy, counsel for the applicant called on the production of that information, Dr Piercy was able to arrange for that information to be produced almost immediately.
In regard to Dr Piercy's May 2019 report, the applicant submitted that the respondent had at all times been aware the report contained numerous factual errors and underlying assumptions on which Dr Piercy had based her opinions, hence to the knowledge of the respondent Dr Piercy's 'opinions would ultimately hold no or little weight' in the proceedings. The applicant went on to submit that, as the report of Ms Nixon and the subsequent reports of Dr Piercy had relied on the same factual errors and underlying assumptions, it should have been obvious to the respondent that the opinions of Ms Nixon in her comments and the subsequent review of Dr Piercy could not be sustained. The applicant pointed to the errors in the underlying assumptions of Dr Piercy's report and the contrary information known to the respondent, yet not provided to Dr Piercy for the purpose of her reports. The applicant contended that during her cross-examination, Dr Piercy acknowledged the relevance of this information and had she been provided with the correct information her conclusion would have differed.
In regard to the respondent's refusal to agree to a jointly commissioned further expert report, the applicant noted that the respondent had failed to respond for six weeks. When the respondent did respond, it said it did not wish to introduce yet another clinician to the Child and her older siblings, yet when the applicant suggested Mr Treddinnik as an alternative, this was rejected by the respondent, who decided to nevertheless engage Dr Piercy to conduct a further review, without any involvement by the applicant or her legal representatives.
The applicant submitted that in light of the respondent's failure to agree to a jointly commissioned report of an expert other than Dr Piercy, she had no alternative but to engage her own expert Dr Julie Casey, an expert in attachment.
The applicant also noted that in her oral evidence at the hearing, Dr Piercy had acknowledged that her updated review was limited due to the applicant's unwillingness to partake in that review. Dr Piercy's evidence was that she had communicated this to the respondent and she had recommended that another expert be sought, which the respondent had told her it did not wish to do.

The respondent's submissions

The respondent opposes the making of a cost order and contends that the usual rule of each party paying its own costs applies.
In this regard the respondent submitted that its conduct in the proceedings did not give rise to special circumstances. Even if there were special circumstances, there was no basis for any finding that costs should be awarded on an indemnity basis.
The respondent contended that the applicant did not identify the specific factors set out in s 60(3) of the NCAT Act on which she relied, or the precise facts or circumstances relevant to such factors. Nevertheless, the respondent responded to the applicant's submissions as follows: 1. to the extent the applicant contended that it, the respondent, had unreasonably prolonged the time taken to complete the proceedings should be rejected. In this regard the respondent noted that the proceedings had been resolved at the end of the second day of hearing. The respondent also noted that it had made clear concessions at the outset of the hearing and in light of these concessions it would be difficult to make a finding of special circumstances. In addition to this the respondent noted that with no determination on the merits of the matters in issue, 'a finding of 'unreasonableness'' would be hard for the Tribunal to make without a full re-litigation of the issues; 2. the applicant's contention that the respondent failed to facilitate a 'just, quick and cheap resolution of the matter' should also be rejected. In this regard the respondent said: 1. it sought to contain the issues in dispute at the final hearing by only cross-examining the applicant on discrete issues and not requiring her 'numerous' witnesses to give evidence; and 2. the applicant's allegations concerning the failure to provide documents did not amount to special circumstances; 1. the applicant's contention that she was disadvantaged because the respondent had failed to agree to a joint expert, the respondent noted that s 60(3)(a) of the NCAT Act refers to conduct creating 'unnecessary' disadvantage to another party. In this regard the respondent submitted that a failure to agree to a joint expert did not cause unnecessary disadvantage in that she was at all times entitled to engage her own expert. The respondent also submitted that its failure to agree to a joint expert report was entirely reasonable in the circumstances and invited us to consider the paramount principle in s 9(1) of the Care Act.
The respondent went on to submit the following: 1. as the nature of the proceedings fell within the Tribunal's welfare and protective jurisdiction this militated against the making of a cost order. In support of this submission the respondent relied on the decision of the Supreme Court in P v NSW Trustee and Guardian (No 2) [2015] NSWSC 676, at [10] (P v NSW Trustee and Guardian); 2. in regard to the applicant's submission that, based on its offer of compromise (i.e. a Calderbank offer), costs should be awarded on an indemnity basis, the respondent noted that in support of that submission, the applicant relied on the decision of the Tribunal in Edward v CohenHandler Pty Ltd (No 2) [2017] NSWCATAP 81. That decision, the respondent noted concerned a matter which had an element of commerciality about it, yet in these proceedings: 24 There is no commerciality in these proceedings. It should not be considered inappropriate for the respondent to fail to respond to a "Calderbank offer' in regard to the decisions surrounding the placement of a child with an authorised carer, especially where the Minister holds parental responsibility for the child and the respondent has certain delegated responsibility for the case management and care of that child. This context further supports the importance of consideration that the Tribunal should consider the nature of the jurisdiction as a welfare jurisdiction before making a costs order. 1. in considering the applicant's submissions concerning the relative strengths of the claims on each party (i.e. s 60(3)(c) of the NCAT Act), we should be guided by the approach taken by the Tribunal in Fitzpatrick Investments, at [35] and [55], namely, where there has been no hearing on the merits, the Tribunal is not able to have regard to the relative strengths of the respective parties.
The applicant's written submissions in reply addressed these issues. We have dealt with these in the context of our consideration of the matters in issue.

Consideration

As we have already noted, the external review proceedings brought by the applicant were brought under the provisions of the Care Act and were protective in nature.
We note that a cost order under s 60 of the NCAT Act is seldom sought or made in matters brought under s 245 of the Care Act. However, each application, if made, must be considered on its merits and in the relevant context. While the general rule under s 60(1) of the NCAT Act differs to that contained in rule 42.1 of the Civil Procedure Rules 2005 (NSW), we accept that the following approach of his Honour Justice Lindsay, in P v NSW Trustee and Guardian, at [9] and [10] equally applies to administrative review proceedings of administratively reviewable decisions made under the Care Act: 9 The "ordinary" rule in protective proceedings (explained by Powell J in CCR v PS (No 2) (1986) 6 NSWLR 622 at 640) is that the Court may exercise its discretion as to costs (for which section 98 of the Civil Procedure Act 2005 provides) not by reference to the rule (embodied in the Uniform Civil Procedure Rules 2005 NSW, rule 42.1) that costs follow the event, but by reference to "what, in all the circumstances, seems proper". 10 This approach gives due recognition to the following factors, amongst others: (a) the protective jurisdiction of the Court is generally governed by the "welfare principle" (that the welfare and interests of each person in need of protection, here the plaintiff, are the paramount consideration) and an associated concern to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the particular person in need of protection. (b) the Court needs to be alive to the possibility that private individuals who would otherwise be concerned to act to protect a person in need of protection might be deterred from acting if bound to submit to a costs order on an unsuccessful application made by them to the Court, even though reasonably made.
The circumstances in P v NSW Trustee and Guardian, P differed to those in the current circumstances in that P was the protected person, whose appeal was dismissed. It was the second respondent, a son of P, who made an application for the protected person to pay his costs of the appeal. That application was also dismissed.
In this case, the Child is the protected person, whose safety, welfare and well-being is paramount. The respondent is the person who is given the statutory task of managing and supervising the placement of the Child and it was the decision of the respondent that was the subject of review in this application. At no time was it disputed that the applicant, as the authorised carer of the Child, had a 'genuine concern in the subject-matter' of the respondent's decision to remove the Child from her day-to-day care: Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 29(1). That is, in these proceedings the applicant was an individual concerned to protect the Child, a person in need of protection. Hence, the question remains as to whether the applicant has established that there are special circumstances warranting an order for costs in her favour.
In her written submissions in reply the applicant identified s 60(3)(c), (d), (e), (f) and (g) as being the grounds on which she relied in support of her costs application. Each ground was also cross-referenced to the applicant's original written submissions.

S 60(3)(c) - relative strengths of the claims

In regard to the relative strengths of the claim made by each party (s 60(3)(c)), we note that the circumstances in which an application for costs was made in Fitzpatrick Investments also differs substantially to those that apply in these proceedings. In Fitzpatrick Investments, unlike these proceedings, there was no hearing of the evidence, instead the applicant withdrew its application for administrative review on the Friday before a two week hearing that was due to commence on the following Monday.
In this case, there was a hearing in which the parties tendered the statements and documents on which they relied. We also had the benefit of observing the applicant, Dr Piercy and Ms Middlebosch give oral evidence and being cross-examined. In this regard we note that the respondent has not disputed the applicant's account of concessions that were made by Dr Piercy during her cross-examination.
Hence, in our opinion we are not prevented from making findings about the relative strengths of the applicant's case, especially where the evidence on which the respondent had made its decision was in fact tested.
In our view, for the reasons set out below, the applicant's case was very strong. There was no dispute that the Child had formed a strong attachment to the applicant and her family. Nor was there any issue about the applicant's care of the Child. In addition to this, two months prior to making its decision the subject of review, the respondent had made a fully considered decision that the Child was to remain in the day-to-day care of the applicant. This was the original decision and it was made after receipt of Dr Piercy's May 2019, 'Sibling Placement Assessment' report. Yet two months later, without any further assessment having been made, the respondent made a new decision based on Dr Piercy's recommendations.
Throughout these proceedings, the respondent has continued to rely on the recommendations of Dr Piercy, even after the applicant had filed her evidence in July 2020, which included the affidavit of her expert, Dr J Casey and the affidavits of Ms Armstrong and Ms Power who had been involved in the original decision of the respondent that the Child remain in the applicant's care.
Yet, as became evident during the cross-examination of Dr Piercy, the instructions she received from the respondent was limited to assessing the viability of the Child being placed together with her older siblings, rather than assessing the long term effect of disrupting the Child's attachment to the applicant and her family. It also became evident that the information provided to Dr Piercy for the purpose of her assessment was limited and in some case incorrect. On being made aware of the circumstances of the placement of the Child's older siblings and information that had not been provided to her, Dr Piercy acknowledged that if she had been fully aware of the relevant circumstances and been provided with all relevant material her conclusions and recommendations may well have differed.
As we have noted, this was not the first time that the respondent had failed to provide all relevant information to the expert.
During cross-examination Dr Piercy acknowledged that her follow-up assessment in April 2020 was limited because the applicant failed to participate. She said she had explained this to the respondent who instructed her to proceed nevertheless. Dr Piercy also explained that had she been informed that the applicant did in fact seek contact between the Child and her older siblings this would amount to a stronger argument that the Child should remain in the applicant's care.

S 60(3)(d) - nature and complexity of the proceedings

We agree that the proceedings by their nature were complex. However, the issue for determination were narrow, namely having regard to the paramount principle in s 9(1) of the Care Act and the undisputed fact that the Child had a secure attachment to the applicant and there was no issue about the applicant's care of the Child: 1. whether the removal of the Child from her current placement will cause a significant attachment disruption; and 2. if so, whether growing up in the same placement with her siblings will outweigh the long term effects of her significant attachment disruption.
We note the principles set out in s 9(2)(e), (f) and (g) of the Care Act in regard to children and young people placed in out-of home care, including the need for early decisions to be made in relation to permanent placement and the need for the retention of relationships by a child or young person with siblings and other significant persons. These principles, as we have noted, are subject to the paramount principle in s 9(1) of that Act.

S 60(3)(f) - failure to comply with the duty imposed by s 36(3)

In our view, for the reasons we have given above, the respondent's ongoing reliance on the recommendations of Dr Piercy in these proceedings was unreasonable as it required the applicant to put on evidence to prove that the assumptions on which Dr Piercy's report was based and the conclusions she reached were wrong or limited. Given the nature of these proceedings and the issues for determination, the respondent's ongoing reliance on the recommendations of Dr Piercy and its reluctance to provide the applicant with relevant documents was inconsistent with the NSW Model Litigant Policy to which the respondent is bound. It was also inconsistent with the guiding principles in s 36(1) of the NCAT Act.
We do not find, nor did the applicant allege, that the respondent had failed to comply with orders made by the Tribunal. However, given the respondent's adversarial approach to these proceedings, they were arguably more protracted than they should have been. In this regard, we note that the respondent did not comply with the 28 days prescribed in s 58 of the ADR Act for the filing and serving of its statement of reasons and every document it considered to be relevant to the determination of the applicant's application for review. Instead, they were filed 28 days late and it is questionable that all relevant documents were filed and served on that day. Furthermore, the respondent did not approach the Tribunal for orders under s 59 of the ADR Act to permit the redaction of the information in the s 58 documents.
We accept that it was always open to the applicant to put on her own expert evidence. However, in this case, the applicant did not necessarily seek her own expert report. Instead, to the knowledge of the respondent, the applicant had at all times questioned the basis on which Dr Piercy had made her recommendations. Accordingly, in the circumstance, it is understandable that she did not agree to Dr Piercy undertaking yet a further assessment.
The evidence is that a further assessment was undertaken, and it is difficult to understand why the respondent could not have agreed to an assessment of that kind subsequently made by the applicant's expert, Dr Casy, rather than persist with an update of a report which was being questioned by the applicant.

S 60(3)(g) - any other matter

Finally, in regard to the applicant's 11 August 2020 offer of settlement, we accept that this is a factor that can be taken into account, under s 60(3)(g), in determining whether there are special circumstances. In this case, the offer was made after the applicant had filed and served all her evidence, including her expert report of Dr Julie Casey, and her outline of argument. While the agreed consent orders we made on 28 August 2020, reflect the orders sought by the applicant, her offer of settlement was not limited to such. As we have already noted, the offer of settlement was also conditional on the respondent paying her legal costs for the amount specified.
In our view, the applicant's offer of settlement does not of itself amount to special circumstances and we have dealt with it below in the context of the applicant's application for an order for costs on an indemnity basis.

Are there special circumstances warranting an order for costs

In our opinion, for the reasons set out above, we are satisfied that the applicant has established special circumstances warranting an award of costs. However, we do not accept that an award for costs of the entire period is warranted. In our view it is only warranted in respect of the applicant's costs in regard to the assessment of Dr Casey and her costs of and incidental to the proceedings after 10 July 2020 when her evidence and outline of argument were filed and served. As we have noted, in our opinion it was unreasonable for the respondent to continue to rely on the recommendations of Dr Piercy, which left the applicant with no alternative but to obtain her own expert evidence, which did in fact address the matters in issue at the time of the hearing.
On being served with the applicant's evidence and outline of submissions, it should have been evident to the respondent that, at the time of hearing, it would be difficult to support its case that its decision, made almost 10 months earlier, remained the correct and preferable decision. Yet, it persisted on putting on further evidence of Dr Piercy.
However, we are not satisfied that the applicant's costs should be paid on an indemnity basis. As noted by the Appeal Panel in SHH v City of Parramatta Council (No 2) [2019] NSWCATAP 231, at [47] and [48], an award of costs is not punitive and it should be exercised so as to give effect to the guiding s 36(21) principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
In this case, we have some difficulty in accepting the contentions of the applicant that the 11 August 2020 offer of settlement was made in terms of what is known as a Calderbank offer as it is not described as such, nor does it set out in detail why the respondent's case cannot succeed or how the specified costs had been arrived at. Even if we are wrong, in our view, in the absence of this information, it was not unreasonable for the respondent to respond to an offer that was made subject to the payment of costs, especially in an environment where costs do not follow the event as is usual in commercial matters.
Nor in our view, is the conduct of the respondent such to warrant an order for indemnity costs.

Decision and order

For the reasons set out above, we are satisfied that there are special circumstances warranting an award of costs in favour of the applicant in regard to in regard to her costs of and incidental to: 1. the assessment of Dr Casey; and 2. the proceedings after 10 July 2020 when her evidence and outline of argument were filed and served.
For the reasons set out above, we are also satisfied that the abovementioned costs should be paid as agreed or assessed on the basis set out in s 60(4)(b) of the NCAT Act. In this regard we encourage the parties to seek agreement as to these costs.
Hence we order: 1. A hearing of the applicant's application for costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The respondent is to pay the applicant's costs of and incidental to: 1. the assessment by its expert Dr Casey; and 2. the proceedings after 10 July 2020. 1. The abovementioned costs are to be paid as agreed or assessed on the basis set out in s 60(4)(b) of the NCAT Act.

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: 31 May 2021

(ADR Act), Children and Young Persons (Care and Protection) Act 1998(NSW)

Civil Procedure Rules 2005(NSW)

Legal principles

In relation to the question whether special circumstances exist, it is accepted that 'it suffices that the circumstances are out of the ordinary' and they do not have to be 'extraordinary or exceptional': Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32] and Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81,at [60].
Section 60(3)(d) of the NCAT Act provides that the Tribunal may have regard to the 'nature' of the proceedings in determining whether there are special circumstances. In this case, the proceedings were in the nature of administrative review. They are also proceedings of a protective nature where the objects and principles in ss 8 and 9 of the Care Act applied. In that regard, s 9 relevantly provides: 9 Principles for administration of Act (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. (2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows - (a) … … (e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. (g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person
The permanent placement principles are set out in s 10A of the Care Act.
The fact that a party is successful or unsuccessful in his or her claim/proceedings does not of itself give rise to special circumstances: Jubian v Clark (No 2): Clark v Jubian (No2) [2016] NSWCATAP 153, at [29].
A finding of "serious unfairness" is not a prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.
If satisfied that there are special circumstances, the Tribunal must further be satisfied that they are circumstances 'warranting an award of costs': Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 (Fitzpatrick Investments), at [21]. The exercise of the discretion requires the Tribunal 'to weigh whether those circumstances are sufficient to amount to "special" circumstances that justify departing from the general rule that each party bear their own costs': BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87at [9].

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