FWY v Biripi Aboriginal Corporation Medical Centre

NCAT Administrative and Equal Opportunity|2024-07-26

REASONS FOR DECISION

This is an application for administrative review of a decision dated 12 July 2023 of the first respondent, Biripi Aboriginal Corporation Medical Centre ("Biripi"), a designated agency under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act"), to remove two children from the care of the applicant (FWY) ("the removal decision").
The removal decision was supported by the second respondent, the Secretary, Department of Communities and Justice ("DCJ"). DCJ had the ministerial responsibility for the care of the two children.
FWY did not agree with the removal decision. She asked the Tribunal to set aside that decision. This would mean that the daily care and control of the children would remain with her.
In our decision FWY v Biripi Aboriginal Corporation Medical Centre [2024] NSWCATAD 70, we set aside Biripi's decision and made a restoration order for the daily care and control of the children to remain with FWY. We made orders for the parties to file any costs application and submissions. FWY filed her application for costs and submissions late. Biripi opposes any extension of time to allowing the costs application and the costs application generally. DCJ did not file any submissions.
FWY has applied for her costs of proceedings for review of the decisions to remove the children her care.
We have decided that there are no special circumstances in this case warranting an award of costs.

Determination of matter on the papers

We contemplated in our orders for the parties to indicate whether the costs application could be determined on the papers without the need for an oral hearing. The parties contend that there was no requirement for an oral hearing.
We are satisfied, for the purposes of s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("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.

Late filing of costs application and submissions

The Tribunal ordered for FWY to file any application for costs and submissions by 19 March 2024. FWY did not file her application and submission for costs until 16 April 2024. Biripi contends that the costs application should be dismissed on the basis that FWY failed to comply with the Tribunal's orders.
By application filed on 15 April 2024, FWY sought from the Tribunal an extension of time for her filing the costs application and submissions. The main reason appears to be that FWY was attempting, without success, to resolve costs with Biripi without involving the Tribunal.
Biripi has not demonstrated any prejudice in the Tribunal granting leave to extend time for FWY to make the costs application. Leave is granted to extend time.

Does the Tribunal have jurisdiction to determine the costs application?

The Tribunal has 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. In exercising that power, the Tribunal must find there are 'special circumstances' that warrant an order for costs. This is not in dispute.
Clause 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) states that, despite s 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. We are satisfied that the applicant must establish special circumstances to warrant a costs order being made in her 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.
FWY seeks costs against Biripi, in fixed amounts, for legal fees incurred. FWY seeks a fixed cost order for: a. Legal costs to the Legal Aid Commission for the legal costs incurred during the substantive proceedings totalling the funded amount of $3,327.50. b. Costs incidental to the substantive, including travel and accommodation costs, totalling $1,031.54. c. Legal costs associated with this costs application that are not funded by the Legal Aid Commission totalling to $1,280.00.

Are there special circumstances warranting an award of costs?

The usual rule in the Tribunal is that each party pays their own costs: s 60(1) of the NCAT Act. However, the Tribunal may award costs if it is satisfied that there are special circumstances warranting an award of costs s 60(2) of the NCAT Act. The following is applicable to our consideration of 'special circumstances'. 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]."
In Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249, at [9], the Appeal Panel said: "Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary. These principles are well established and have been consistently applied in this Tribunal: 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]."
The Tribunal's discretion to award costs must be exercised judicially, and not arbitrarily, capriciously or so as to frustrate the legislative intent: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [22].
A costs order is compensatory and not punitive: Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22].
FWY submits that there are special circumstances warranting an award of costs in the proceedings. FWY relies on the following matters to which the Tribunal may have regard when determining whether there are special circumstances warranting an award of costs.

Whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings: s 60(3)(a) of NCAT Act

FWY contends that she devotes her time to caring for the children and is not in paid employment. FWY was eligible for Legal Aid funding for the substantive administrative review proceedings. Any costs incidental to these proceedings that she personally incurred and impacts directly on her and the children in her care. FWY submits that the designated agency would usually fund an authorised carer's accommodation and travel costs for legal proceedings.
Biripi's position was primarily informed by an assessment, to which we gave no weight for the reasons set out in [101] - [116] of the decision. These reasons included: 1. The cultural competency of the assessment process did not include the Aboriginal Assessor being present for interviews and she also did not make herself available for cross-examination. 2. Concerns about the independence of the assessment. 3. Concerns about the reasonableness of the assessors' initial recommendations. 4. The lack of a proper and accepted carer assessment framework. 5. The lack of a proper and accepted carer assessment framework for Aboriginal carers and children. 6. Biripi not providing the assessor with all relevant historical and current information.
FWY contends that Biripi did not fully comply with a summons for the production of records, which was served in time and returnable on 25 October 2023. Biripi produced documents in the middle of the 2-day hearing, which FWY says placed her at a disadvantage. Biripi contends that the scope of the summons was in issue on the first day of the hearing. To avoid further argument, documents were produced. FWY was given the opportunity to make an application for an adjournment if any prejudice arose. No such application was made. Biripi submits no inference of any prejudice or disadvantage should be made.
The CEO of Biripi made some concerning comments about the children's cultural identity and needs and the Applicant exercising her review rights. At paragraph [129] we found: "The CEO, who is also an Aboriginal woman, said she had no concerns that the assessment was not conducted from a cultural perspective. We find this extraordinary given that the allocated Aboriginal assessor was only partly involved in the assessment and no specific cultural assessment tool was used. Also of concern, the CEO of an Aboriginal designated agency was unable to recall the s 12A principles of the Care Act." We further found at paragraph [131] that while the CEO was honest as a witness, her evidence was not reliable.
FWY contends: The decision that BACS made appears not to be based on relevant evidence that focused on what is in the children's best interests. Rather, the decision that BACS made and that it stuck to throughout the proceedings, appears to have been motivated by views of the Applicant and her care of the children that were not supported by relevant and reliable evidence. Under cross examination, the CEO of BACS agreed that there were no safety concerns for the Children remaining in the care of the Applicant, apart from those outlined in the comparative assessment (which as noted above, was flawed and unreliable).
FWY also contends that the CEO's views differed from the evidence given by the Biripi's Caseworker for the children. This is not in dispute.
FWY submits that Biripi "conducted the proceedings in a way that unnecessarily disadvantaged the Applicant since deciding that the Children should be placed in an alternative placement with family members interstate". During the proceedings Biripi was not amendable to altering its position, even during the hearing when it was obvious that the evidence it was primarily relying on was fundamentally flawed.
Biripi contends that it did not run its case in a manner which disadvantaged FWY. Biripi relied upon independent expert evidence and the Tribunal, when the evidence was tested, made findings which did not accept this advice, setting aside the decision under review. In having the evidence tested, the Tribunal undertook its task of administrative review and found against Biripi. Biripi contends that even when the Tribunal did not accept, or give weight to, part of Biripi's expert and lay evidence, those findings do not lead to a conclusion that Biripi conducted the litigation in a manner which disadvantaged FWY. In these circumstances, Biripi submits there are no special circumstances warranting a costs order.

Findings

After reviewing the evidence, we find there are no special circumstances that warrant the Tribunal considering whether to exercise a discretion to make a costs order.
Each party had the opportunity to put before the Tribunal evidence to be tested. We do not agree with the contention that where a party's evidence is not reliable, or is not given weight, this amounts to conducting the proceedings in a manner which disadvantages the other party. While we did not accept the evidence of CEO of Biripi as being reliable, that is not, in our view, a matter which amounts to Biripi conducting the proceedings in a way which disadvantaged FWY. Biripi was entitled to test the evidence before the Tribunal.
We do not accept FWY's submissions that attempt to include a failure of Biripi in the decision making process, which occurred before the filing of these proceedings, as a relevant consideration for 'special circumstances'.
Accordingly, we find that no special circumstances exist that warrant the Tribunal to consider whether to exercise its discretion as an award of costs.

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

FWY relies upon the following authorities: Spuds Surf Chatswood Pty Ltd v P T Ltd (No.3) PT Ltd v Spuds Surf Chatswood Pty Ltd (No.2) [2011] NSWADT 186 at [27] when considering the concept of a claim lacking 'a tenable basis in fact or law': "when an assertion of baselessness is put up in respect of a claim, there are brought to mind the epithets used by Barwick CJ in General Steel Industries Inc. v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, at 128-9 in respect of a pleading warranting the exercise of the Court's power of summary dismissal: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow (the pleading) to stand would involve useless expense".
FWY contends that Biripi relied upon a flawed report of the expert who carried out the comparative assessment and that "serious concerns relating to the continuing suitability of the Applicant for long-term care" of the children was not supported by the relevant evidence.
We are not satisfied FWY's submissions concerning the state of the evidence meets the high threshold set out in the above authorities. This is because the Tribunal undertook the task of assessing the evidence of each party. In doing so, we rejected part - but not all - of Biripi's evidence. There were some aspects of its decision that required the Tribunal to undertake an assessment as to its veracity. This included the allegations made against FWY that she smacked the children. This evidence was properly put before the Tribunal and tested. After doing so, the Tribunal set aside the decision of Biripi.
This is not a ground for special circumstances.

The nature and complexity of the proceedings

FWY contends that the proceedings involved "complex issues such as the Children's cultural and identity needs, case management issues, attachment and trauma".
FWY contends that a significant amount of relevant material should have been filed by Biripi as the administrator, however it was FWY who had to obtain this information through summons and calls for evidence. It was FWY that filed the bulk of relevant material in the proceedings. FWY also contends that the issues raised were complex and that she was required to consider a large volume of evidence. In this regard, special circumstances exist warranting an order for costs.
We are not satisfied that these proceedings involved matters which were overly complex or outside of the usual matters the Tribunal is called upon to determine. There was a large volume of material in the proceedings and many allegations had been made against FWY. Volume does not necessarily equate to complexity. The proceedings were fairly straightforward in terms of legal issues.
This is not a special circumstance.

Whether a party has refused or failed to comply with the duty imposed by section 36

FWY contends that there was no genuine attempt by Biripi "to consider the evidence and negotiate or resolve the matter without a hearing". We are not persuaded by this submission. This is because Biripi relied upon the comparative assessment report and held a genuine belief that it was material to the decision under review. Ultimately, after FWY tested that evidence, we found the report to be unreliable. This is not a basis for special circumstances.
FWY contends that the two-day hearing may not have been necessary if Biripi had complied with the summons before the commencement of the hearing. This submission is, however, speculative. We consider that it is likely that FWY's cross-examination of the CEO of Biripi would have occurred irrespective of when the documents were produced. While we consider that the hearing time was greatly affected by the late production of the documents, we do not accept that cross-examination of the Biripi CEO would have been avoided by more timely production of the documents.
This is not a special circumstance.

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

We do not consider that there are, in the proceedings which are the subject of the costs application, special circumstances warranting an award of costs.
The matters supporting such an award include the volume of material, the amount of disputed evidence, and the findings that the expert report was given no weight. Whilst we have some concerns about these matters, especially the last matter, our findings about this were not unequivocal.
Even if we had found "special circumstances", an order for costs is not considered to be warranted in this case, because (1) the starting point in Tribunal proceedings is that each party bears their own costs, (2) FWY was legally represented with the result that she was able to reasonably run her case and make any application during the proceedings if she was disadvantaged by the conduct of Biripi, and (3) this proceeding was of a kind commonly brought before the Tribunal.
Having considered all of the matters raised by FWY, for the reasons given above we do not consider that these matters amount to 'special circumstances' warranting an award of costs. The ordinary rule as to costs should, therefore, apply.

Orders 1. Leave for time to file the costs application is extended to 16 April 2024. 2. The application for costs is refused.

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

Amendments 26 July 2024 - Typos corrected. 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: 26 July 2024

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