These proceedings related to administrative review of two decisions made under the Children and Young Persons (Care and Protection) Act 1998 (NSW), removing daily care and control of children from the applicant and cancelling the applicant's carer authorisation.
At a hearing on 20 July 2023, orders were made dismissing the proceedings because the applicant withdrew the application. The respondent sought the costs of the proceedings. Orders were also made for the parties to provide written submissions and material in relation to the costs applications. The parties were also provided with the opportunity to make submissions in relation to dispensing with the hearing, as is required by s 50 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). An order was b made dispensing with a hearing pursuant to s 50(1)(c) of the NCAT Act
Having considered that material and written submissions provided by the parties, I don't not find that there are special circumstances which warrant the making of a costs order in these proceedings.
[2]
Consideration
Section 60 (1) of the NCAT Act, requires that each party bears their own costs. However, pursuant to s 60 (2) of the NCAT Act, a cost order can be made if "special circumstances" are established.
Clause 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) states that, despite section 60 of the NCAT Act, the Tribunal may award costs in proceedings in the absence of special circumstances warranting such an award if the amount claimed or in dispute in the proceedings is more than $30,000. There was no amount in dispute in this application and no party disputes that s 60(2) is the applicable costs regime that applies to these proceedings. The applicants must establish special circumstances to warrant a costs order being made in their favour.
Pursuant to s 60(3) of the NCAT Act, 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.
The respondent contends that there are special circumstances which warrant the awarding of costs because the proceedings were frivolous, vexatious, misconceived, lacking in substance and an abuse of process and the applicant prolonged the proceedings, creating unnecessary significant expense for the respondent and causing trauma to the children involved.
Having considered the submissions and material of the parties, I am not satisfied that there are special circumstances in these proceedings which warrant the awarding of costs to the respondent.
In P v NSW Trustee and Guardian P v NSW Trustee and Guardian (No 2) [2015] NSWSC 676, the Supreme Court considered a costs application in circumstances where an appeal had been made by the plaintiff from orders of the Guardianship Division of the NSW Civil and Administrative Tribunal for the appointment of the NSW Trustee as financial manager. The appellant was the protected person for whom the order had been made. The cost's applicant was the appellant's son, who was the second respondent in the proceedings. I note the comments made by Lindsay J at [9] - [10]:
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.
These proceedings involved children in care and the relevant legislation is also governed by welfare principles. Section 8 of the Children and Young Persons (Care and Protection) Act sets out the objects of the Act as:
(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and
(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and
(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.
I am alive to the possibility that a foster carer should not be deterred from acting regarding children's welfare and wellbeing if they are concerned that they may be bound to submit to a costs order on an application for review of a decision by the Tribunal. An award of costs should not act as a deterrent for applications for the care and protection of the children. However, each cost application must be considered on its own merits.
On 26 August 2022, the applicant lodged the application for administrative review of a decision, made by the respondent on 24 June 2022, to remove responsibility for the daily care and control of three children from the care of the applicant. The decision had been affirmed by internal review on 2 August 2022.
On 18 October 2022, the respondent made an administratively reviewable decision to cancel the applicant's carer authorisation. On 13 December 2022, the applicant lodged an amended administrative review application to include review of the decision to cancel the applicant's carer authorisation. The application was subsequently amended to also include review of that decision.
On 5 June 2023, the applicant informed the Tribunal that, she did not press her application in relation to two of the three children.
On 18 July 2023, the respondent lodged a form seeking an order for summary dismissal of the proceedings pursuant to section 55, Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The respondent also sought an order that the applicant pay the costs of the proceedings of the respondent. The summary dismissal application was made on the basis that the applicant was no longer seeking the return of the subject child to her care. As her carer authorisation was specific to caring for that child, the respondent submitted that there was no utility in the Tribunal determining the matter.
The respondent submits that the applicant has unreasonably prolonged the time taken to complete the proceedings because she took six months to lodge her evidence and made an application to vacate the hearing dates on 25 May 2023, about nine after the administrative review application has been lodged. A review of the file does not indicate that the applicant has prolonged or delayed the proceedings.
The first listing of the matter was for direction on 29 September 2022. Orders were made for the respondent to provide their documents and for the matter to be relisted for directions on 27 October 2022. There is also a note on the order which informs the parties:
The proceedings have been listed for a direction hearing on 27 October 2022 to allow the applicant to review and consider the s 58 material before committing to further directions concerning the evidence
At the request of the respondent, the directions hearing listed for 27 October 2023 was subsequently adjourned to 10 November 2023. That was because the respondent had not provided the documents as required by the directions made on 29 September 2023. The time was extended for the respondent to file the documents until 3 November 2023. On 9 November 2022, the respondent wrote to the Tribunal again requesting an adjournment of the directions hearing. The request was by consent of the parties because the respondent's documents had been served late "due to logistical issues and staff sickness". I note from the file that the documents were not lodged until 10 November 2023.
In correspondence to the Registry dated 13 December 2023, the respondent again sought an adjournment of a directions hearing on the basis that the applicant was still considering the documents which amounted to 1,386 pages. The respondent did not object to the adjournment request. At the directions hearing on 15 December 2023 the matter was adjourned to 16 February 2023 to allow the applicant to consider the material which the Tribunal noted was 1600 pages. The Tribunal also noted that the applicant had filed an application for review a further decision made by the respondent to cancel her authorisation as a carer.
At the directions hearing on 16 February 2023, the Tribunal made orders listing the proceedings for mediation and listed the matter for a further direction hearing on 13 April 2023.
The mediation subsequently occurred on 24 March 2023 and was unsuccessful.
At the directions hearing on 13 April 2023, the Tribunal made orders for the exchange of material. The applicant's material was due on 29 May 2023. That was in effect the first time that the applicant had been directed by the Tribunal to file her material. The proceedings were listed for final hearing on 24 and 25 July 2023. While I accept that the applicant subsequently sought a relisting of the matter for directions to deal with interlocutory matters and to adjournment the final hearing date, on 25 May 2023 the Tribunal refused the adjournment.
Having considered the procedural history of the proceedings, I do not find that the applicant unreasonably prolonged the proceedings. The first time the Tribunal ordered the applicant to lodge her material was not until 29 May 2023 and the first time the matter was listed for final hearing was for 24 and 25 July 2023. The adjournment request made by the applicant also does not amount to special circumstances.
The respondent submits that the applicant did not have a working with children check as of 16 May 2023 and therefore the applicants case had no tenable basis in law or in fact. I do not find on that basis that the review application did not have a tenable basis in law or in fact. The administrative review application was made prior to the expiry of the working with children check and the applicant did subsequently withdraw the proceedings on 20 July 2023.
The applicant submits that she withdrew the proceedings after the respondent alerted the applicant's legal representatives that her working with children check had expired on 16 May 2023. The applicant submits she is 71 years old and has been under enormous emotional pressure due to these three children being taken from her care and that she was also been attending to the sale of a property during the proceedings. The applicant submits that with all those events occurring simultaneously she forgot to make an application to renew her working with children's check, which raised the technical point agitated by the respondent on 19 July 2023 which was 5 days before the hearing.
In those circumstances I do not find that the applicant wilfully continued the proceedings knowing her working with children check had expired. The applicant withdrew the proceedings on becoming aware of the expiration of the working with children check.
The respondent also submits that the applicant's case was weak as she had no contact with the children since they were removed from her care in June 2022 and two of the children expressed that they did not want to see the applicant. However, not seeing the children was not a matter within the applicants control and was not a reason for her case to be weak. The fact she had not seen the children did not amount to a reason to have to withdraw the application.
The respondent submits that the applicant was essentially seeking for the Tribunal to review reportable conduct investigation findings which is not the role of the Tribunal and that she refused to withdraw her application when invited to so by the respondent. I am mindful that this is a matter where there was no final determination by the Tribunal of the matter on the merits. However, I do not find from the material before me that the applicant was simply seeking review of the reportable conduct investigation. The circumstances of the case that one of the children attained the age of 18 after the proceedings were commenced but before a final hearing and therefore, was no longer subject to the Tribunal's jurisdiction. The applicant properly conceded that did not press the application in relation to that child and notified the Tribunal on 5 June 2023.
In relation to the child for which the applicant pressed administrative review, the applicant submits that she did not receive written confirmation of the child's wishes until 13 July 2023. The applicant submits that given the nature of and substance of the proceedings, it was inappropriate for the applicant or the to accept verbal assertions about a position and act upon the same, especially as the separate representatives processes needed to be properly completed before this position was finalised.
The children's wishes, while important to consider, are not determinative of whether they should be in the care of the applicant or not. Even if the children were expressing such views, that is not a basis on its own for an applicant to abandon proceedings. I do not find that the proceedings were vexatious, frivolous or misconceived.
The respondent also submits that the applicants representatives adopted an overly adversarial approach by seeking an order that one of the children be assessed by an expert and be present in the reportable conduct investigation interview with the applicant where they advised her against answering questions and providing context. Those matters do not amount to special circumstances to warrant the costs of the proceedings. Leave was never given for the child to be cross examined and there is no connection between the solicitor being present with his client at the reportable conduct investigation and the running of these proceedings.
Finally, the respondent submits that the applicant filed a 2,307-page bundle which included much of what had already been filed by them. The applicant submits that the documents were a collation of all the material which had been provided by the respondent in three tranches over numerous dates. The applicant submits that the material created a de facto 'court book' for the convenience of the Tribunal. I am not satisfied that reproducing the documents in that way prolonged the proceedings and the cost was to the applicant, not to the respondent.
[3]
Conclusion
Having considered the submissions and material of the parties, I find no special circumstances arise which warrant the making of a costs order in these proceedings. The respondent's cost application is dismissed.
[4]
Orders
I make the following orders:
1. The application for costs is dismissed.
[5]
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: 02 November 2023
Parties
Applicant/Plaintiff:
FMV
Respondent/Defendant:
Wandiyali
Legislation Cited (4)
Children and Young Persons Care and Protection Regulations 2012(NSW)