//
[2022] SACAT 29
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-03-30
Original judgment source is linked above.
GKZ v Department for Child Protection [2022] SACAT 29
The Applicant applied to the Tribunal for a review of a child placement decision made by the Chief Executive of the Department for Child Protection ('Department') under s 84 of the Children and Young People Safety Act ('CYPS Act').
Whilst the review was still progressing at a hearing, and after the Tribunal had directed that a psychological report be prepared, the Department made a further placement decision equivalent to that sought by the Applicant (essentially reversing the placement decision under review). The Applicant subsequently withdrew the review application.
Pursuant to s 57(2) of the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act'), the Applicant made an application for costs. This application was made on the basis that the Department's initial decision had (in effect) been set aside as a result of the review proceedings (because of the Department's inadequate assessment of the proposed placement), the applicant had genuinely attempted to assist the decision-maker, and legal costs had consequently been incurred unnecessarily. The respondent opposed an order for costs.
Administrative Tribunals - Procedure - Statutory Powers - Merit review - Order for costs - Default position that parties are to bear their own costs - Circumstances in which it is appropriate to depart from default position
Administrative Tribunals - Procedure - Entitlement to costs -- Further decision of respondent leading to no utility in proceedings - Costs order where proceedings are withdrawn by applicant after decision 'reversed'
Administrative Tribunals - Procedure - State as model litigant - duty of government decision-maker to use best endeavours to assist Tribunal
Administrative Tribunals - Procedure - Circumstances in which an expert referral will be made under s 42 of the SACAT Act
South Australian Civil and Administrative Tribunal Rules 2014, rules 4 and 27
Children and Young People Safety Act 2017 ss 5, 7, 8, 9, 10, 11, 12, 77, 84, 157, 158
Administrative Appeals Tribunal Act 1975 (AAT Act) s 33(1AA)
WWZ & Anor v DCP [2020] SACAT 111
RHN & Anor v DCP [2021] SACAT 75
South Australian Housing Trust v Brady and Milera [2018] SACAT 2
Tronnolone v Edwards & Bryan [2016] SACAT 27
Re HWS [2018] SACAT 39
Hoare v Registrar of Firearms [2021] SACAT 65
Hanna v City of Marion & Anor [2020] SACAT 21
Clarke v Registrar of the Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100
Colgate-Palmolive & Colgate Palmolive Pty Ltd v Cussins Pty Ltd [1993] FCA 536
Thomas Foods international Pty Ltd v Adelaide Hills Council & Anor [2015] ERDC 40
Oshlack v Richmond River Council (1988) 193 LCR 72
Merc Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 2298
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. 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.
1. This is the Applicant's application for costs following the determination of a review under s 34 of the South Australian Civil and Administrative Tribunal Act (SACAT Act)[1] of a 'child placement' decision made by the Chief Executive of the Department for Child Protection under s 84 of the Children and Young People Safety Act (CYPS Act).
2. The Tribunal was constituted of all members to hear the costs argument. Whilst the Senior Member sitting alone can hear and consider costs arguments (an ancillary issue in the proceedings), this decision has been prepared by the Tribunal constituted of all members as the matter did not proceed to a final determination on the review. We have made findings in this decision relevant to the discretion to issue costs.
3. The review proceedings concerned a 'placement decision' regarding a child who is under the guardianship of the Chief Executive. She is an Aboriginal child, and the proceedings considered, amongst other things, the application of the Aboriginal and Torres Strait Islander Child Placement Principle (the ATSICP Principle) under s 12 of the CYPS Act.
4. When the proceedings commenced in SACAT the child was 16 months of age (born in 2019). She was first placed under the interim guardianship of the Chief Executive at the age of one month as a result of significant care concerns. Until that time the child had been in the care of her mother and her mother's partner, ZZG. ZZG is the son of the Applicant, GKZ.
5. Upon being removed from the care of her mother and ZZG, the child had a number of very short-term family-based placements (three in total) over three weeks. This was followed by a five-month family-based placement with a temporary carer, before she was placed, on 27 September 2019, in a temporary family-based placement in Adelaide with the Applicant (then thought to be her paternal grandmother) when she was seven months old. The Applicant's son, the Applicant and her partner are not Aboriginal or Torres Strait Islander people.
6. When the child was eventually placed with the Applicant and her partner (at only seven months of age) it was the child's fifth placement and her sixth set of caregivers, including the period she had lived with her mother and the Applicant's son.
7. The placement decision under review occurred on 29 January 2020 after it was revealed that the Applicant's son was not the biological father of the child. The decision, made in recognition of the important ATSICP Principle in s 12 of the CYPS Act, was to move the child as soon as possible from her placement in Adelaide to a new placement to reside with her maternal great-aunt who resides in Port Lincoln, with a transition to the new placement recommended to occur over a period of 7-10 days. The decision-maker had determined that there would be no psychological input into that decision, or into the plan for the child's transition to the new placement.
8. An internal review brought by the Applicant under s 157 of the CYPS Act upheld the placement decision but varied the recommendations about the arrangements for the child's transition to the new placement; the proposal being that the new transition process should take place over 4-6 weeks instead of 7-10 days and be designed and overseen by a psychologist. The internal reviewer also recommended that 'an assessment of the suitability of [the maternal great-aunt's] home be conducted, specifically to identify if there was sufficient space for [the child] and if any practical supports were required (for example furniture)'.[2] Further, it was suggested that the possibility of the child remaining connected with the Applicant and her partner should be explored to 'help support her attachment needs'.
9. The Applicant had been positively assessed as a suitable temporary placement provider for an Aboriginal child following an assessment by the Aboriginal Family Support Service (AFSS). However, at the time she filed her review with SACAT the Applicant was still only a temporary carer with DCP. Prior to the proceedings being filed with SACAT the Applicant had sought approval to be a long-term carer (which approval was subsequently granted to her by the time the proceedings were eventually finalised in SACAT).
10. Some time elapsed before the review was filed in SACAT because of the need for an internal review to be conducted and finalised under s 157 of the CYPS Act. When the review proceedings were filed in SACAT, the child's placement with the Applicant and her partner had been ongoing for seven months.
11. The decision-maker's documents under s 35 of the SACAT Act were filed by the Respondent on 20 May 2020. The matter was listed for full hearing on 3 and 5 August 2020 by which time the child had been in a temporary placement with the Applicant for over 10 months (the Department had extended the temporary placement on two occasions.) [3]
12. Prior to the full hearing of the review there were three lengthy directions hearings in the matter (1 June 2020, 10 June 2020, and 2 July 2020).
13. At the first directions hearing on 1 June 2020, the decision under review was stayed by the Tribunal.
14. When making a placement decision under the Act the decision maker and the Tribunal must consider and weigh up any competing harm considerations.[4]
15. At the first directions hearing, the Applicant's solicitors and subsequently the Tribunal Member raised concerns with the Respondent's counsel about the apparent lack of any psychological evidence or opinion in the s 35 book of documents (BoD) regarding the assessment of the attachment of the child to the current foster carers, or about the psychological and emotional impact or harm that might be experienced by the child as a result of moving her to the proposed new placement. The Tribunal also noted that the BoD did not contain a statement of reasons, or sufficient material to enable the Tribunal to assess the benefits or harm (culturally and psychologically) that would be afforded to the child by transitioning her, or not transitioning her, to an Aboriginal kinship placement to reflect the s 12 Principles in the CYPS Act.
16. The issue about the lack of psychological evidence regarding the competing harm considerations was raised with the Respondent by the Tribunal again on 10 June and 2 July 2020. The Respondent was ordered to provide a more detailed statement of reasons for the initial reviewable decision. The Tribunal sought submissions from the parties about whether it should make an expert referral to a psychologist under s 42 of the SACAT Act.
17. In accordance with directions issued on 2 July 2020, submissions were made in writing by both parties about whether the Tribunal should refer a question arising in the proceedings to a psychologist under s 42 of the SACAT Act. The Applicant supported referral to a psychologist, but the Respondent opposed the referral for an expert report raising concerns mostly about the possibility of delay. The Respondent also indicated that a psychologist (Ms Cook) would be called at the full hearing and articles about attachment theory would be filed to assist the Tribunal. Directions were issued by the Presiding Member on the papers on 29 July 2020 deferring further consideration of this issue to the full hearing.
18. The s 34 review proceeded to a hearing over two full days; this involved extensive oral submissions, and witnesses being called by both parties. During the course of proceedings two important issues became clear on the evidence.
19. One was that the Departmental decision-maker, and those with whom he had consulted, had essentially reversed the priority of the s 11 and s 12 placement principles, or had failed to give proper consideration to the s 11 placement principles. This became very clear on the evidence of the Principal Aboriginal Consultant ('PAC'), who had been instrumental in recommending to the decision-maker that the child should transition to the kinship placement with the maternal great-aunt, and who conceded in evidence that he was unaware of the existence of (or perhaps simply was unable to articulate) the placement principles set out in s 11 of the CYPS Act.
20. The Applicant invited the Tribunal to infer that this fact alone had infected the correctness of the decision-making process under the Act. This evidence was said to provide support for the submission that the Applicant's counsel had made in his outline of argument that the material in the BoD revealed that the Respondent had incorrectly prioritised the s 12 principles over the s 11 principles in the Act.[5]
21. The other issue, which is said to be most relevant to the question of the application for costs, is that the evidence at the hearing revealed that a placement of the child with the maternal great-aunt was not 'reasonably practicable' and was accordingly not in the best interests of the child. Of significance, s 12(3)(a) of the CYPS Act prefaces an Aboriginal placement decision upon satisfaction that it be 'reasonably practicable'.
22. The Tribunal heard in evidence from the maternal great-aunt [6] (the proposed kinship carer) that she was facing significant challenges as a result of her carer responsibilities to two other children in her full-time care (one an adopted 10-year-old daughter with high support needs and the other a younger child under the guardianship of the Chief Executive with very high complex care needs due to diagnosed cognitive and developmental disabilities). The evidence also established that the maternal great-aunt had some significant health issues that might impact on her ability to provide care to the child.
23. As a result of this evidence, and the evidence relating to the child's need for highly focused and individual care following a disruption of her attachment with the Applicant and her partner should she be removed from her current placement,[7] the Tribunal adjourned the matter and ordered the Respondent to provide an expert psychological report under s 42 of the SACAT Act to assist the Tribunal with its decision-making.[8] The Tribunal indicated that the purpose of the report was to enable the Departmental psychologist, Ms L Cook, to conduct a full 'placement capacity' assessment in order to provide an opinion to the Tribunal as to what was in the child's 'best interests' [9] regarding her future care arrangements.
24. The hearing was adjourned for three weeks to enable the report from the psychologist to be prepared. The Respondent filed and served the expert report (the Cook report) on 11 September 2020.[10] The final recommendation made by Ms Cook was that the child should remain in her current placement (with the Applicant) with active supports in place to enable her to form meaningful connections with her Aboriginal family and culture.
25. It is clear from the psychological report that Ms Cook considered that there were finely balanced, competing harm considerations for the child by either leaving her in a placement with the Applicant and her partner, or moving the child to live with her maternal aunt. On the one hand, if she stayed with the Applicant, the child would not have the benefit of a lived connection with her kin and her cultural heritage resulting in a potential loss of significant protective factors necessary for her long-term mental health (including resilience, identity, and a sense of 'belonging'), which factors are available to Aboriginal people when they are provided with those strong family or kin connections. On the other hand, moving the child to a new placement would necessitate severing the attachment relationship (described by Ms Cook as a 'traumatic severing of her established attachment') with her long-term caregivers, which might lead to future psychological and relationship difficulties for the child.
26. Ms Cook opined that the placement move would require careful planning and support given that the child had already experienced several placement transitions and accordingly 'her caregiving needs will increase significantly'.[11]
27. However, in the Tribunal's view it is clear that Ms Cook's conclusion that the child should remain in her current placement was based upon the fact that the placement of the child with the maternal great-aunt was not 'reasonably practicable' (although she did not use that particular phrase) and was not in the child's best interests. The lack of practicability was due to the significant pressure of the maternal great-aunt's caregiving responsibilities to two other children and the difficulties that she would have 'meeting the complex needs of all three children simultaneously'. Ms Cook's conclusion was that 'the likelihood of overwhelming [the maternal great-aunt] and placing the stability of all three children's care at risk is considered a significant possibility'.[12]
28. Clearly, the only inference that can be drawn from the report is that it was not reasonably practicable, or in the child's best interests, to place her with her maternal great-aunt. We accept Mr Tredrea's submission in that respect.
29. The hearing was listed to resume on 14 and 15 September 2020. On the morning of 14 September, the Applicant tendered the Cook report and sought a lengthy adjournment to consider Ms Cook's recommendations and to investigate other ways to potentially support the maternal great-aunt with her future care of the child. The adjournment application was opposed by the Respondent and was not granted by the Tribunal.
30. After considering the recommendations of the Departmental psychologist in the Cook report, and at the conclusion of submissions on 14 September 2020, the Respondent made a further decision setting aside the initial placement decision (later evidenced in writing by the delegate of the Chief Executive).[13] An undertaking was provided that the child would remain in the placement with the Applicant and her partner (who had still not been approved as a long-term carer).
31. Counsel for the Department, Mr Ambrose, whilst declining to indicate that his client conceded that any decision-making errors had been made, advised the Tribunal on 14 and 15 September 2020 that his instructions were that the Respondent accepted the opinion and recommendations of the Departmental psychologist. Whilst the Respondent's counsel did not make any concessions, the Respondent's acceptance of the Cook report, its contents and recommendations lead to the overwhelming conclusion that there was an acceptance by the Respondent that the placement was not, at that time, reasonably practicable.
32. The matter was adjourned to 21 and 25 September 2020 when final orders were eventually made. On 25 September 2020, the Respondent made a further placement decision pursuant to s 84(1) of the CYPS Act, placing the child in the long term care of the Applicant. By decision of the Respondent made on 25 September 2020, the Applicant was also approved as an approved carer pursuant to s 72 of the CYPS Act.
33. As a consequence of the above developments, the Applicant sought leave to withdraw the proceedings on the basis that the Respondent had made a further placement decision for the child, which superseded the reviewable decision the subject of these proceedings.
34. The application for costs before the Tribunal is therefore unusual because the application for review was not 'finally determined' by the Tribunal under s 37(1) of the SACAT Act, no findings were made by the Tribunal, no statement of reasons was produced, and the review was eventually withdrawn. The eventual order was that the proceedings were dismissed under s 47 of the SACAT Act on leave being granted to the Applicant to withdraw the proceedings.
35. Nevertheless, the Applicant (who was legally represented by solicitor and counsel at all stages of the proceedings) seeks an order for her costs in the matter up until 15 September 2020 when the Department made a decision to set aside the decision under review.
General principles concerning the award of costs by the Tribunal
37. There are no provisions in the CYPS Act empowering the Tribunal to award costs in relation to proceedings taken pursuant to that Act. Therefore, this application must be resolved pursuant to the provisions in the SACAT Act concerning costs, namely ss 57, 58 and 91.
38. It is clear that the usual position regarding costs, namely, that costs follow the event (i.e., that a successful litigant is entitled to recover their costs from the other party), is not the starting point in relation to matters heard and determined by the Tribunal.
39. Section 57 of the SACAT Act provides that parties are to bear their own costs, unless the Tribunal orders otherwise, or there is some other legislative provision governing the award of costs in the particular matter.
40. Section 57(1) of the SACAT Act provides as follows:
Unless otherwise specified in the Act, a relevant Act, or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal.
41. In considering the principles to be applied to this application for costs I have considered earlier decisions of the Tribunal concerning costs, namely: South Australian Housing Trust v Brady and Milera [2018] SACAT 2, Tronnolone v Edwards & Bryan [2016] SACAT 27, Re HWS [2018] SACAT 39, Hoare v Registrar of Firearms [2021] SACAT 65, Hanna v City of Marion & Anor [2020] SACAT 21 and Clarke v Registrar of the Veterinary Surgeons Board of South Australia (No. 2) [2021] SACAT 100.
42. These decisions consider in detail the general principles concerning the award of costs under the SACAT Act in different jurisdictions of SACAT and under different pieces of legislation.
43. It is important to note that there may be a difference in approach to the question of costs depending on the nature of the application before the Tribunal (i.e., whether it is an 'inquiry' in one of the Tribunal's protective jurisdictions, a tenancy matter under the Residential Tenancies Act, or an inter partes dispute such as a disciplinary complaint or a complaint under the Equal Opportunity Act). It is also important to differentiate between matters which fall within the Tribunal's ordinary jurisdiction, its review jurisdiction and its internal review jurisdiction.
44. Section 57(2) of the SACAT Act provides that the Tribunal may make an order for costs against a party if the Tribunal thinks it is appropriate to do so, after taking into account the following factors:
(a) the main objectives of the Act that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings before the Tribunal to a minimum insofar as it is just and appropriate; and
(b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and
(c) provisions made by the rules; and
(d) any other matter considered relevant by the Tribunal.
45. The main objectives of the Tribunal are set out in s 8 of the SACAT Act, and these objectives must inform any order for costs made by the Tribunal. The Tribunal's consideration about costs in this matter must reflect on how any costs order will further these objectives. However, in South Australian Housing Trust v Brady and Milera [2018] SACAT 2 ('SAHT v Brady and Milera'),[14] President Hughes emphasised that the s 57 factors are all subservient to the overarching proposition set out in s 57(1) of the SACAT Act that parties bear their own costs.
46. President Hughes in SAHT v Brady and Milera[15] points out that the need to ensure proceedings are fair and parties are not disadvantaged by proceedings that have little or no merit recognises that legal proceedings can be used as a tool by one party to achieve ends other than to resolve a legal dispute.
47. In Tronnolone v Edwards & Bryan [2016] SACAT 27 Justice Parker (then President of the Tribunal) made the following comment on the operation and application of section 57 of the SACAT Act at [25], :
The clear effect of section 57 of the SACAT Act is that SACAT is generally a no costs jurisdiction, and costs will rarely be awarded. In particular, section 57(2)(b) indicates that costs should only be awarded where a party has been disadvantaged by proceedings that have little or no merit. I do not consider that to be the situation with the present matter. The proceedings were no more or less meritorious than most of the cases that come before the Tribunal. There was clearly a dispute that required adjudication (Emphasis added).
48. Pursuant to s 57(2)(d) of the SACAT Act the Tribunal may also take into account 'any other matter considered relevant', and this gives the Tribunal a very wide discretion to consider a broad range of facts, circumstances and conduct in determining if it is appropriate to make an order for costs. I will return to this issue.
49. Rule 27 of the South Australian Civil and Administrative Tribunal Rules 2014 (the SACAT Rules) addresses the details required in making an application for costs but does not add to the factors the Tribunal needs to consider in relation to an application for costs.
50. Rule 4 of the SACAT Rules requires that 'Tribunal proceedings be conducted efficiently, and in a manner proportionate to the matter in dispute'. Proportionality includes ensuring that legal and other costs incurred are reasonable and proportionate to the importance and complexity of the matter in dispute, and parties, including legal practitioners representing parties must make their best endeavours to facilitate the just, quick, and cheap resolution of the real issues in proceedings before the Tribunal.
51. Section 57(3) of the SACAT Act provides that where the Tribunal dismisses or strikes out an application in 'prescribed circumstances' the Tribunal should make an order for costs against the party against whom the action is directed. This matter was dismissed upon withdrawal of the proceedings by the Applicant, which is not a 'prescribed circumstance', and there was no application for the review to be struck out.[16]
52. The proceedings were withdrawn by the Applicant, but only because the Respondent made a second decision that superseded the first decision.
53. For completeness, s 91 SACAT Act [17] also relates to 'costs of proceedings', but this is defined in that section as 'costs of or incidental to proceedings other than the costs of the party' (emphasis added). Of importance, however, is the emphasis again in that section on the fact that the Tribunal should be loath to award any ancillary costs in its review jurisdiction.
54. Section 58 of the SACAT Act sets out some additional considerations relevant to a costs order in the Tribunal's review jurisdiction. This matter arose in the Tribunal's review jurisdiction, and accordingly s 58(2) should also be considered. This requires the Tribunal in those circumstances to have regard to:
(a) whether the party genuinely attempted to enable and assist the decision-maker to make a decision on its merits; and
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits (emphasis added).
55. This will be a question of fact in the circumstances of each matter.
56. Mr Tredrea for the Applicant observed that the starting point on costs in SACAT is set out in s 57(1) SACAT Act i.e., that each party bears its own costs. He indicated that he accepts the reasoning of President Hughes in South Australian Housing Trust v Brady & Milera.[18] However, he observed that the Tribunal does have a discretion to order that one party pay all or any of the costs of another party if the Tribunal thinks that it is appropriate to do so after taking into account various factors. He acknowledged the wording of s 57(2)(a) - (c) but referred the Tribunal in particular to the consideration set out in s 57(2)(d), namely, 'any other matter considered relevant by the Tribunal'.
57. Mr Tredrea made three main points in support of his argument that it is open and appropriate for the Tribunal to depart from the starting point on costs in s 57(1) and order costs in favour of the Applicant on a review under s 34 of the SACAT Act in certain circumstances, namely:
(a) The costs discretion in s 57(2) is broad and unfettered.
(b) There is no need for the Tribunal to find that there has been 'disqualifying conduct by one of the parties'.[19] So, there is no need to make findings of improper or incompetent conduct by the decision-maker. It is sufficient to enliven the discretion to award costs that, for whatever reason, a party persists with what should, on proper consideration be seen to be a decision without merit.
(c) The considerations about awarding costs to one or the other party on a review under s 34 are somewhat asymmetrical in the sense that it would be unusual to order costs in favour of the State against a private citizen Applicant on a s 34 review (i.e., when a review right is given, citizens should not be discouraged under threat of an adverse costs order from bringing an application for review of an administrative decision to SACAT).
Conversely, he submitted that when considering the interests of justice as a relevant consideration under s 57(2)(d), the Tribunal might award costs in favour of an Applicant. In doing so he submitted that it is relevant to consider whether a private citizen has had to institute proceedings against the State in order to challenge a government decision that is patently wrong, or clearly lacking in merit. Further, he argued that the nature of the decision under review is relevant to the discretion to award costs on a review under s 34. Mr Tredrea submitted that there is a significant public interest in this matter, given the nature of the current review proceedings, which relate to the welfare of a child under the guardianship of the Chief Executive of the Department for Child Protection under the CYPS Act. He submitted that there is a substantial public interest in the correct placement decision being made relating to a vulnerable child in care.
58. Mr Tredrea accepted that costs do not follow the event as a matter of course following an outcome in a s 34 review, however, he observed that whilst success alone on a review is not a proper basis by itself for an award of costs, it is a relevant factor and gets the party somewhere along the track to establishing that there is a proper basis for the Tribunal to exercise the cost discretion in its favour.
59. Mr Tredrea submitted that there are three main reasons why the Tribunal should exercise its discretion and award costs in favour of the Applicant in this case. They are:
(a) The placement decision has been set aside and, accordingly, the Applicant has been successful in persuading the Respondent that it was incorrect to remove the child from her care (not an irrelevant consideration).
(b) The Respondent's failures to perform a proper assessment of the maternal great-aunt's care-giving capacity before making the placement decision was made in January 2020 had resulted in an unnecessary expenditure of costs by the Applicant who had to institute the review proceedings to correct the decision-making error. Thomas Foods international Pty Ltd v Adelaide Hills Council & Anor (No 2) ('Thomas') [20] is authority for the circumstances when a court will order 'costs thrown away' to a party (following an unnecessary adjournment). He submitted that, in exercising its discretion as to costs in this matter, it is relevant to consider, by analogy, whether the Applicant's costs have been 'thrown away' due to the conduct of the Respondent. This is a relevant consideration under s 57.
The reviewable placement decision was only set aside by the Respondent at the end of a long hearing in SACAT when the Chief Executive was faced with detailed evidence contained in the report of a psychologist (Ms Cook) employed within the Department (and directed to be supplied by the Tribunal), which did not support the Chief Executive's placement decision.
Relevant issues came to light in the Cook report dated 11/09/2020 revealing that it was not reasonably practicable to place the child with the maternal great-aunt. The oral evidence before the Tribunal from the maternal great-aunt (and further detailed in the Cook report) established that the pressures facing her did not enable her to provide the necessary level of caregiving to the child (in light of the already high level of care responsibilities which she was facing). This meant that it was not, and never had been, 'reasonably practicable' to place the child with the maternal great-aunt pursuant to s 12 (3) of the CYPS Act.
He submitted that it had never been reasonably practicable to place the child with the maternal great-aunt and the gravamen of the matter is that the evidence established that there was no proper evaluation of those issues by the Department at any stage of the decision-making process until the Tribunal ordered the Respondent to arrange for a psychological assessment of all relevant placement issues on 7 August 2020 (at the conclusion of the second day of evidence).
If those issues had been properly assessed, and legally and correctly evaluated, as they ought to have been before the placement decision was made, the Applicant would not have been placed in the position where she had to bring the proceedings to correct what was clearly an erroneous decision, lacking in merit.
The evidence that was eventually placed before the Tribunal reveals that the decision-maker made an obvious procedural error, or an error of law, in that there was a failure by the decision-maker to consider the relevant matters in s 12(3) of the CYPS Act as to reasonable practicability and the best interests of the child (s 12(4)).
The decision to place the child with her family was assessed by the PAC and promoted by him to the eventual decision-maker (Mr Colin Sparrow), at a time when no suitable maternal family placement had in fact been identified and when placement of the child with the maternal great-aunt had only two months before that decision not been supported by the DCP Port Lincoln office, for the very reasons which were subsequently identified by Ms Cook. The situation regarding the capacity of the proposed caregiver to provide care to the child was not new, was well-known to the social work team at the Port Lincoln DCP office in late 2020, and no proper evaluation of that situation had been made by the decision-maker at any time until the Cook report was directed by the Tribunal and provided to the Applicant part-way through the proceedings. This error was obvious from the Respondent's decision-making documents as revealed at page 11 of the BoD (in the internal review findings).[21]
The Respondent did not conduct a thorough investigation or assessment of the proposed placement, nor did it in fact form the requisite state of satisfaction that the placement with the maternal great-aunt was reasonably practicable before the decision to place the child with her was made.
Mr Tredrea submitted that the Applicant's costs had been effectively 'thrown away' up until the date that the Cook report was produced. The Applicant had no control over that investigation, which was at all times in the hands of the decision-maker.
Had the suitability of the proposed placement been properly evaluated in December 2019 and January 2020, the Applicant would not have been required to initiate the internal review to DCP and the review proceedings and, would not have incurred the considerable costs of pursuing the matter in SACAT.
(c) Mr Tredrea referred the Tribunal to s 58 (2) of the SACAT Act and submitted that the Applicant party had genuinely attempted to enable and assist the decision-maker to make a decision on its merits by raising these issues at an early stage of the proceedings (s 58(2)(a)). As to s 58(2)(b), Mr Tredrea did not go so far as to submit that the Department had not been genuine in its attempt to make a decision on its merits, however, he submitted that objectively, through its failures, it had not made a legally correct decision and had failed to consider the relevant considerations in s 12(3) and s 11 of the CYPS Act.
60. Finally, the Applicant submitted that it was reasonable for his client to have legal representation and engage legal counsel in this matter, which was a complex and significant matter concerning the welfare of a vulnerable child. He submitted that the interests of justice and the nature of these proceedings 'tip the matter over' from the starting position on costs in s 57(1) in favour of the Tribunal ordering the Respondent to pay Applicant's costs on the review.
The Respondent's position on the costs argument
(a) The cost discretion is not 'broad and unfettered'. The discretion needs to be considered in light of the objects of the Act and the default position or overarching principle in s 57(1) that parties bears their own costs.[22]
(b) There is no need to establish 'disqualifying conduct'.
(c) The submission that the 'asymmetrical approach to costs' is applicable (i.e., that costs can be more readily awarded in favour of a citizen as against a public authority or the State) is not accepted. The Tribunal should take the same approach to costs for either party. See [38] of South Australian Housing Trust v Brady & Milera [23] where President Hughes observed that the SACAT Act makes no such distinction.
(d) As to whether there are any relevant considerations to enliven the discretion to order costs in favour of the Applicant in this case:
The Departmental decision-maker should not be criticised for not recording its reasons in written form. The context of the decision is important. The Department makes a very large number of placement and other decisions daily for a very large number of children in its care. There is no statutory obligation requiring reasons to be produced under the CYPS Act. The Tribunal should consider the 'real world decision making' that occurs in the Department on a daily basis and should not be overly critical of the failure to provide reasons in this matter.
The Applicant did not 'succeed' on the review; there was a discontinuance of the proceedings. The proceedings came to an end at an appropriate time. The Department did not persist in litigation when the evidence was against it. As soon as the Cook report was provided the Respondent made an appropriate concession and reversed its decision.
The question of whether the placement with the maternal great-aunt was reasonably practicable was properly considered by the decision-maker. The evidence that it was not actually a reasonably practicable placement did not come to light until 11 September 2020. It should be remembered that this decision was made in the context of many thousands of decisions that are made yearly for a large number of children in care. It is not true to say DCP was not alive to whether it was reasonably practicable in January 2020. In November 2019 social workers from the Department did form that view. Then in January 2020 they decided to re-evaluate that decision. Officers of the department travelled to Port Lincoln to undertake an assessment of the proposed placement. The affidavit of the PAC is relevant (DCP3). That sets out the process that was undertaken. There were meetings with the DCP workers at Port Lincoln and consultation took place during a conversation held with the maternal great-aunt. At that time Colin Sparrow, the decision-maker, did form the view that the placement was a reasonably practicable placement (refer [20] DCP2 at p 4).
The fact that that decision may have been made in error does not mean that the Department did not consider the issue of reasonable practicability. DCP was seized of the question and was aware of the issues relevant to a comparison of the two placements.
DCP should not be criticised for not obtaining a psychological assessment at that time. Mr Sparrow explained why he did not do so. Again, the Tribunal should not be overly critical of DCP as this was just one of many decisions that needed to be made for children in care and a quick decision needed to be made. Mr Sparrow had extensively consulted with PAC as to the relevant s 12 principles. The Department unashamedly strives to support kinship placements for Aboriginal children given the wording of the s 12 principles, the history of racism in Australia and a failure in the past by governments in Australia to recognise the importance of culture and connection to family for Aboriginal children removed from their parents.
There was a genuine attempt to make a decision on its merits. The decision-maker may not have gone through the process with the level of rigour and thoroughness that he should have done but that is different to whether he had made a genuine attempt to make a decision on its merits. There has been no malfeasance (Mr Tredrea did not submit that such had occurred, and we find that it had not).
He distinguished the Thomas decision noting that related to a decision under the Development Act in the ERD court.
In response to questions raised by the Tribunal about the failure to arrange for a psychological assessment at an earlier stage of the proceedings, Mr Ambrose submitted that it cannot be the case that a psychological report is necessarily a requirement before a placement decision is made. It is often the case, given the nature of such decisions, that the Department needs to act quickly and in a timely manner in the best interests of the child. The Department should not be criticised for not seeking a psychological assessment before any placement decision was made.
He submitted that Mr Sparrow did consider ss 7, 8 and 11 of the Act together with the s 12 principles and appropriately weighed up the competing considerations.
The Respondent had acted appropriately and sought to move as quickly as it could to set the decision aside when the Cook report revealed that the decision should be set aside.
In response to issues raised by the Presiding Member of the Tribunal about a perceived failure by the Respondent agency to assist the Tribunal during the course of the proceedings under s 35 of the Act, Mr Ambrose invited the Tribunal to conclude that the Respondent had used its 'best endeavours' under s 35(1) of the SACAT Act.
He submitted that 'best endeavours' to assist the Tribunal does not mean that the Respondent is obliged to adduce evidence which may be averse to the government agency, nor is it required to undertake an investigation. The obligation on the decision-maker in a merits review is not the same as the obligation on the prosecutor in a criminal prosecution. That is too high an obligation and there is no positive obligation on the government to adduce evidence against or contrary to its position.
Mr Ambrose submitted that relevant documents and materials were provided to the Tribunal and there was a legitimate attempt to assist the Tribunal to reach the correct or preferable decision. He noted that the Respondent had filed extensive affidavit evidence and scholarly articles relating to the topic of 'severed attachment' harm. He cautioned the Tribunal about 'hindsight bias' in this matter.
The Respondent formed the view that the need for expeditious decision-making meant that a psychological assessment was not considered appropriate. He said there was nothing improper in the conduct of the Respondent because the Tribunal had deferred further consideration of that issue to the full hearing.
He did not accept that it was wrong for the Respondent to take a position about what the correct or preferable decision was and to pursue that position. In that sense it was not inappropriate for the Department to take a partisan position in order to protect its interests. The Respondent does not apologise for placing significant emphasis on the ATSICP Principle in this case.
62. The Respondent opposed the order for costs and submitted that there was no proper basis to depart from the default position that each party should bear its own costs on a review under s 34 of the Act.
Application of the relevant principles to the present matter
63. Section 57(1) is very clear concerning the default position of the Tribunal that parties bear their own costs in relation to proceedings before the Tribunal. This is especially so in the Tribunal's review jurisdiction and my consideration of the application for costs commences from the default position.[24]
64. However, there is no doubt that s 57 permits the Tribunal to make orders as to costs. We accept the Respondent's argument that it is not appropriate to describe the costs discretion under s 57(2) as broad and unfettered. There must be good reasons to depart from the default position that each party is to bear its own costs.
65. We agree that there is no need for the Tribunal to find that there has been 'disqualifying conduct' by one of the parties before the discretion to order costs is enlivened. However, any order for costs must still be consistent with, and promote the purposes of the SACAT Act.
66. In considering the exercise of the discretion to order costs in this matter we must take into account the considerations in ss 57(2)(a)-(d) and 58(2) and identify any particular features of this matter which remove it from this default position.
67. We shall deal with each of these considerations in turn.
The Applicant was successful: the decision was set aside
68. The starting point in our consideration is that, as a result of the review proceedings being instituted and the Tribunal directing the Respondent to undertake an investigation of the suitability of the proposed placement, amongst other issues, the placement decision was set aside.
69. Accordingly, by bringing the proceedings in SACAT and identifying errors which had infected the decision-making process, the Applicant was successful in eventually persuading the Respondent that the incorrect decision had been made.
70. We agree that the Applicant was eventually 'successful' on the review given that the decision was set aside (and the review discontinued).
71. Success alone is not determinative of costs in this jurisdiction. However, it is relevant that the reason for the about-face by the Respondent was because the Respondent had failed to make a legally correct decision when it ought to have done so, on the information readily available to it, and had objectively failed to consider the relevant considerations in ss s 11 and 12(3) of the CYPS Act.
72. We accept the Applicant's submission in this respect.
Section 8 objectives, accessibility, the nature of the decision, the complexity of the matter and the suitability for counsel
73. Regarding accessibility, as Senior Tribunal Member McEvoy stated in Hanna v City of Marion & Anor [25] (applying the comments of Parker J in Tronnolone v Edwards & Bryan), which was a review under s 34 of the SACAT Act of an FOI decision under the Freedom of Information Act 1991:
[45] However, the central concern with respect to the issue of costs is that of access to the Tribunal. The possible award of costs on an unsuccessful party will always represent a burden to access: the imposition of, or possibility of, a costs order will always operate as a significant issue of access. This is a particular consideration in relation to applications to the Tribunal made under the FOI Act, which permits applications for information to be made by anyone: 'a person' has a right to obtain information from an agency (see s 12 of the FOI Act), and if refused may make an application to the Tribunal for a review of that decision. The possibility of a costs order in relation to an unsuccessful application to the Tribunal subverts the reality of any person being enabled to seek information from an agency. Access to the Tribunal is a primary objective of the SACAT Act, and the Tribunal in considering whether to award costs must take into account the impact the possibility of a costs order may have on the objective of accessibility.
[46] The submissions for Mr Hull focussed principally on the assertion that Mr Hanna's application was comprehensibly dismissed in all aspects by the Tribunal in its decision of 6 March 2020, and as a consequence, it should be seen as particularly meritless, and it followed it was therefore unreasonable to bring the application in the first place. In addition, Mr Campbell argued that he had advised Mr Hanna prior to the Tribunal proceedings that if the matter proceeded and was unsuccessful (as Mr Campbell had suggested to Mr Hanna it would be) Mr Hull would seek indemnity costs, and that Mr Hanna, the Applicant in those proceedings, should have appreciated, as a solicitor himself, the risk that his application might fail, and he might be exposed to costs. Under these circumstances Mr Hanna should pay the costs of the proceedings before the Tribunal. Allied to this submission was the assertion that Mr Hull had no effective choice but to be joined as a party in order to protect his reputation and circumstances should the documents sought by Mr Hanna be publicly disclosed.
[47] I do not accept any of these submissions in this matter.
[48] It is the case that Mr Hanna's application was comprehensively dismissed by the Tribunal. Mr Campbell's submission raises the issue referred to in s 57(2)(b) of the SACAT Act, that the Tribunal must ensure the proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit. However, as Mr Hanna submitted, and I accept, lack of success in terms of the outcome does not necessarily lead to the inevitable conclusion that the initial application was without merit, unreasonable and should not have been made. I refer to President Parker's statement in Tronnolone, that [The] proceedings [in that matter] were no more or less meritorious than most of the cases that come before the Tribunal. There was clearly a dispute that required adjudication. I am satisfied that there was a dispute in the substantive matter which came before the Tribunal that required adjudication.
[49] In addition, to characterise an application which has not been successful before the Tribunal (even 'comprehensively' unsuccessful) as one that should attract a costs order because it must have been of little or no merit and so disadvantaged the other party, is to undermine the fundamental proposition of s 57(1), that the Tribunal is a costs free jurisdiction except in very limited circumstances. To argue that because an application was unsuccessful it had little or no merit and therefore may attract a costs order against the Applicant proposes a back door means of subverting that overarching proposition for the operation of the Tribunal, that parties bear their own costs.
74. However, it is important to note that Hanna v City of Marion & Anor concerned a matter where the Applicant on review was unsuccessful on the merits of his application and where a person joined as a second Respondent was seeking costs against the Applicant.
75. We accept the submission of Mr Tredrea that different considerations may apply in some circumstances regarding whether a costs order should be made in the review jurisdiction in favour of an Applicant against a government agency (Mr Tredrea described this as 'asymmetrical considerations on costs').
76. However, we note the observations of President Hughes in SAHA v Brady & Milera and we agree that the SACAT Act makes no distinction about the approach to costs between private citizens and, public authorities or government agencies.
77. However, we agree with the Applicant that the nature of the review and the issues at stake on the review are relevant to the exercise of the discretion on costs in the event of a successful outcome (and in relation to the question of accessibility). When promoting the SACAT objective of 'accessibility', it is relevant to consider whether a private citizen has had to initiate proceedings in order to correct a decision that was not made on a proper factual foundation, was legally incorrect, and ought not to have been made (or defended). Given the outcome in this review, we find that to be the case in this matter; we consider that this is relevant to the discretion to order costs.
78. Not all review proceedings in SACAT are alike. The issues at stake and the complexity of the subject matter vary depending on the nature of the decision and the objects and purposes of the subject legislation. It is relevant to the exercise of the costs discretion in this matter that the nature of the proceedings under the CYPS Act and the 'subject matter' of child placement reviews have features which remove them from the 'run-of-the-mill' or 'standard' reviews under s 34 of the SACAT Act.
79. The subject of the proceedings in this matter concerned the rights, interests, and welfare of a vulnerable child in State Government care. The only way for the Applicant to challenge the decision of the Department was to bring the review proceedings in SACAT.
80. To enable accessibility, SACAT encourages parties to be self-represented and for proceedings to be conducted in an informal manner, using straightforward language and procedures, and with as little formality and technicality as possible. However, some proceedings in SACAT are more complex than others. We note, however, that the government agency is invariably represented by a solicitor from the Crown Solicitor's Office.
81. We find that the issues were complex in this matter, evidence was taken, witnesses were called and cross-examined and there were issues of statutory interpretation regarding the reviewable decision under a relatively new piece of legislation.[26] In our view, it was entirely appropriate for the Applicant to be represented by a solicitor and experienced counsel at the review hearing.
82. The Applicant has consequently incurred significant legal costs as a result of initiating proceedings against the State in order to promote the rights of a child, in circumstances where the decision was subsequently revealed to be fundamentally flawed.
Simplifying proceedings to keep costs to a minimum and assisting the Tribunal
83. Apart from the accessibility argument is the focus on keeping costs in SACAT proceedings to a minimum. This extends to a government agency involved in a review process ensuring that it keeps an Applicant's costs to a minimum.
84. We are of the view that that obligation extends, in some situations, to the government agency reconsidering the merits of its decision even when a review has been filed with SACAT_._ This is particularly pertinent when the subject matter of the relevant decision relates to fluid or evolving circumstances about a child's welfare.
85. Child placement decisions made by DCP are not decisions that are 'frozen' at a point of time. A child's circumstances and the circumstances of the current or proposed caregivers may change even after the decision has been made and challenged by an aggrieved person. If the justice of the matter requires it do so, the obligations of an administrative decision-maker in such a case may involve taking all or any appropriate steps to set aside or vary its decision at any time prior to, or in the course of, the review proceedings (especially if new evidence comes to light or, an error or oversight in its decision-making has been exposed). In our view, those requirements fall squarely within the obligations of the government as a model litigant.
86. We agree that it is sufficient to enliven the discretion to award costs if, for whatever reason, a government agency persists with defending what should, on proper consideration, be seen to be a decision without merit. This is relevant to the consideration of whether the Applicant's costs have been kept to a minimum.
87. The Applicant's counsel did not go so far as to invite the Tribunal to find that the decision-maker had failed to genuinely attempt to make a decision on its merits (s 58(2)(b)), and the Tribunal does not make that finding, but it is clear that the facts in this matter reveal that the information that led to the decision being set aside (i.e., the maternal great-aunt's practical inability to care for the subject child) ought to have been ascertained, or investigated more thoroughly by the relevant officers either before the decision was made, or at a much earlier stage in the proceedings.
88. Therefore, objectively, there was a failure by the decision-maker to make a correct decision on its merits either at the time the decision was made or at any time leading up to the hearing.
89. We agree with the Applicant's submission that the Respondent persisted with what should, on proper consideration, have been seen to be a decision without merit as it was not, and never had been, 'reasonably practicable' to place the child with the maternal great-aunt. We are satisfied to make that finding on the totality of the evidence that was before us in this matter. It ought not have required a psychological assessment at the eleventh hour to uncover those facts. Those facts were apparent to the Tribunal on the evidence of the maternal great-aunt at the full hearing and ought to have been known to the Respondent and its solicitors.
90. Further, the true extent of the difficulties regarding the proposed placement would likely have been clearly revealed much earlier in the proceedings, had the Respondent acquiesced in agreeing to a psychological evaluation of the harm considerations and placement issues at an earlier stage of the proceedings (as suggested by the Tribunal Member at the initial directions hearing). At that early stage the Respondent's book of documents revealed that the placement decision was complex, the competing harm considerations under the Act had not been evaluated by a relevant professional, and the concerns about the maternal great-aunt's capacity to care for the child had already been identified by the case workers at Port Lincoln.
91. Regarding the Tribunal's request, and eventual direction under s 42 of the SACAT Act, for a psychological assessment in this matter, the Tribunal notes the following comments of President Hughes and Member Gursansky in WWZ & Anor v The Department for Child Protection [27] raising concerns that the parties in that matter had agreed to a psychological assessment to gather evidence (after the decision had been made) that ought to have been obtained prior to the decision at [86- 88]:
[86] it is undesirable for a decision-maker to gather new evidence in support of a decision after a decision has been made. Firstly, it suggests that the decision-maker may have been aware that there was additional evidence available that might assist in the making of a correct decision. If that evidence was available when the decision was made, and required to justify the decision, it is preferable for it to be gathered at that point. Secondly, the decision-maker might be tempted to seek out information that supports the original decision rather than contributes to a correct decision. Thirdly, it requires the challenger to meet a case that is possibly different from that which has been challenged.
[87] Rather, once a review is initiated, the question of whether the decision is properly supported by evidence is one for the Tribunal to make. It can, as stated above, direct the provision by the Department of such evidence within the Department's possession or control as it thinks fit, and direct the obtaining of other evidence if required of its own motion (emphasis added).
[88]...As to whether a party should be permitted to adduce further evidence in support of the challenge to the decision brought under s 34, the discretion should be exercised by reference to a number of factors including the likely relevance of the evidence, whether (in respect of evidence sought to be adduced by the decision-maker) it was available when the original decision was made, and the time it will take to obtain the evidence, bearing in mind the option of remitting the decision to the decision-maker at any time for the decision to be re-made, and the need for expedition.
92. The Tribunal observes that in this matter the request for further evidence was made by the Tribunal, not a party. There were some obvious "red flag" issues about the decision to move the child apparent on the documents from the start, given the age of the child and the number of placements that she had already experienced. It was also apparent that the gradual placement transition process was going to be difficult to put into effect because the proposed placement was in Port Lincoln. The geographical issues and complications caused by COVID-19 (lockdowns were an issue at the time), indicated that the prospect of gradually introducing the child to her maternal great-aunt and the two other foster children might be difficult to achieve.
93. The Tribunal also makes some general observations about placement variation decisions. We suggest that when a change of placement decision for a young child has been made (but not yet brought into effect), and the matter proceeds on internal review and then review to SACAT (with the associated timelines and delay), issues relevant to the assessment of potential harm considerations for the subject child associated with severed attachment to carers will likely become (and continue to be) particularly relevant. Competing harm considerations are especially pertinent in placement decision reviews, and the effect of such decisions on children are fluid and evolving. In some matters, it may be necessary for the Tribunal to seek additional evidence about potential harm relating to attachment disruption.[28]
94. It is the Tribunal's view that the manner in which the proceedings were conducted by the Respondent in this matter was to focus solely on vigorously defending its decision to give effect to the very important ATSICP Principle in s 12 of the CYPS Act.
95. We accept that there are valid psychological studies and literature supporting that important principle in theory[29] (although, we were not impressed by, or assisted to a great extent, by the evidence of Mr Mitchell regarding his understanding of that principle). However, by focussing its attention solely on the ATSICP principle the Respondent, in our view, failed to consider objectively, at all relevant times, the specific circumstances of the subject child, in particular her psychological and care-giving needs (as a result of the proposal to sever the attachment with the Applicant and her partner, against a background of multiple short-term placements) and the practical inadequacies of the proposed placement to meet those needs. In our view the decision-making by the Department in this case was, and remained on review, 'blinkered'.
96. We find that in focusing almost exclusively on the ATSICP Principle and the objects of section s 12(2) the decision-maker failed to properly consider whether it was 'reasonably practicable' and in her 'best interests' to place the child with a member of her maternal family (sub-ss 12(3)(a) and (b)).
97. We agree with the Applicant's counsel that the main facts and circumstances revealed in the Cook report were known to officers of the Department prior to the decision that was made to place the child with the Applicant,[30] and ought to have been explored more thoroughly prior to the placement decision being made, and then at all stages leading up to the Tribunal hearing.
98. It might be suggested that the situation regarding the lack of reasonable practicability of placing the child with the Applicant was always known to the relevant officers of the Department. However, we are unable to find that the relevant decision-maker actually knew of the true extent of the difficulties facing the Applicant until the Cook report was produced. Nevertheless, we agree with Mr Tredrea that the relevant officers ought to have made the proper investigations about the practicability of placing the child with the Applicant at a much earlier time, either before the decision was made to place the child with the Applicant, or at any stage of the matter up until the hearing date. That responsibility rested with the relevant Departmental officers right up until the Cook report was produced in September 2020.
99. In this respect we note that the internal reviewer identified that the DCP social workers in Port Lincoln spoke with the DCP St Mary's office in relation to the Applicant's capacity to provide a placement for the child on 29 October 2019 (only two months before the placement decision was made by Mr Sparrow). The social workers had stated that they 'did not support [the child]'s placement with [the maternal great-aunt] as [the maternal great-aunt] already had a three-year-old with autism and an eight-year-old child in her care. Other concerns identified related to [the maternal great-aunt] studying full-time at university and her age and support needs' (emphasis added).[31] The internal reviewer also identified some care concerns recorded for the maternal great-aunt in relation to her care of a foster child in her care and stated: 'The concerns highlight the critical importance of ensuring [the maternal great-aunt] has access to all the required supports to ensure she is well equipped to respond appropriately to the needs of children in her care' (emphasis added).[32]
100. The reviewer concluded her remarks with the following recommendations: 'a psychologist [should be involved to] design a suitably comprehensive transition process...And an assessment of the suitability of [the maternal great-aunt]'s home should be conducted as soon as possible, specifically to identify that there is sufficient space for [the child] and if any practical supports are required (for example, furniture)' (emphasis added).[33]
101. Further, the Tribunal notes that the relevant officers of the Department involved in the decision-making in this matter had not at any stage suggested that a psychologist be involved in assessing the appropriateness of the placement decision itself. In fact, a deliberate decision was made not to involve a psychologist.[34] The internal reviewer only suggested a psychologist be involved for the purposes of developing the transition process. As discussed above, the Tribunal observes that it is not necessary for a psychologist to be involved in every placement decision. However, given the complexities in this matter and the number of previous placements, the involvement of a relevant professional would have been helpful to advise about the competing harm considerations and the suitability of the child's placement with the maternal great-aunt.
102. It is the Tribunal's view that the costs to the Applicant could have been reduced, or certainly kept to a minimum, by the Respondent agreeing to a psychological report being obtained much earlier in the review proceedings. This issue was repeatedly raised at directions hearings. The Respondent is correct to note that the question of directing that an expert report be obtained was eventually deferred to the full hearing by the Tribunal, [35] but that was in part because the Respondent strongly opposed that course being taken and advised that relevant evidence would be adduced at the hearing.
103. Given that the eventual involvement of a psychologist uncovered the true extent of the difficulties faced by the maternal great-aunt and properly analysed the competing harm considerations, the position taken by the Respondent about this issue prior to, and during the hearing, has a bearing on the manner in which the government agency chose to conduct the proceedings and, in turn, on the disposition of the matter.
104. We agree with the Applicant's submission that the reviewable placement decision was only set aside by the Respondent at the end of a two-day hearing, following an adjournment to enable an expert report to be obtained (pursuant to a direction under s 42 of the SACAT Act) and after the Department was faced with the detailed evidence contained in the report of a psychologist employed within the Department. That report did not support the Department's placement decision and provided additional evidence to support the obvious errors in the decision-making process.
105. For the above reasons, the Tribunal is of the view that the Respondent's failure to conduct a thorough placement assessment before the decision was made and its failures to conduct the review proceedings in a manner that assisted in keeping the costs to a minimum, or simplifying the proceedings, are relevant considerations regarding the discretion to award costs under s 57(2)(a) and (d) of the SACAT Act. This is analogous to a 'costs thrown away' situation in civil proceedings.[36]
Any other matter considered relevant by the Tribunal - duty to assist the Tribunal
106. The Tribunal must consider the 'no costs' default position against the issues of fairness and the public interest, and the pursuit of the Tribunal's other objectives.
107. In SAHA v Brady & Milera,[37] President Hughes referred to the need to ensure proceedings are fair and parties are not disadvantaged by proceedings that have little or no merit. Costs may be awarded where appropriate to redress such unfairness where it has arisen.
108. In the Tribunal's view the Respondent's decision-making errors and its conduct of the matter on review exposed the Applicant to unfairness in the review proceedings.
109. Lack of merit is not measured in the Tribunal merely by lack of success where there is a legitimate dispute requiring adjudication. However, this matter has raised the additional considerations which we have addressed, including the late concession about the impracticability of the proposed placement, resulting in an 'about-face' after the Respondent finally re-examined the appropriateness of the proposed placement following a number of directions hearings and at the end of a two-day hearing (and only when ordered by the Tribunal to conduct that assessment via a psychologist under s 42 of the SACAT Act).
110. An additional consideration relevant to costs in the review jurisdiction is whether the government agency has conducted the matter with the view to assisting the Tribunal to reach the correct and preferable decision.[38]
111. We note that s 35(1) of the SACAT Act states:
In proceedings for the review of a reviewable decision, the decision-maker for the reviewable decision must use his or her best endeavours to help the Tribunal so that it can make its decision on the review.
112. This obligation to assist the Tribunal echoes s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (AAT Act), which requires government decision makers to 'use their best endeavours to assist the Tribunal to make its decision in relation to the proceeding' (emphasis added). These sections highlight that the role of government decision-makers in review proceedings is to act as model litigants.
113. The crucial point under both s 33(1AA) of the AAT Act and s 35(1) of the SACAT Act is that, rather than seeking to defend their original decision in the Tribunal, agencies need to focus on assisting the Tribunal to arrive at the correct or preferable decision.[39] This recognises the position of the Tribunal in reviewing the decision, namely that it considers the matter afresh, standing in the shoes of the original decision-maker. This is in contrast to court litigation, which is adversarial and is based upon the promotion and defence of the rights and positions of parties to a dispute.
114. As President Hughes and Member Gursansky stated in WWZ & Anor v DPC[40] at [83 - 85]:
[83] In a review under ss 34-38 of the SACAT Act 2013, the decision-maker is required to make the decision according to law after gathering the relevant information, which may involve requiring a statement of the reasons for the original decision or any other document or thing from the original decision-maker. The decision-maker should be clear to the Applicant and the Tribunal as to whether the grounds for defending the decision remain the same as those relied upon to make the decision. It was regrettable that the rationale for the Department's decision was, until the receipt of the Department's outline of argument and fresh evidence, unknown to the Applicants. In hindsight, a requirement by the Tribunal at the commencement of this review that the decision-maker furnish a statement of reasons supplementary to that which the Department advanced as its reasons, being the letter from Ms Blanch to WWZ dated 3 December 2019, may have brought certain issues to the forefront earlier than when they occurred in this matter.
[84] When the Tribunal makes its decision, which may be to affirm, substitute or remit the original decision, the decision made by the Tribunal is to be regarded as the decision of the Department, which is quite different from the orders of the Court which stand separate to and binding on the Department.
[85] Whilst the decision-maker has a legislated role in the review to assist the Tribunal, that role is to be carried out in a manner that reflects the fact that it is not an Applicant (as it is when it appears before the Court) and must act in a manner that is consistent with the pursuit of the correct or preferable decision, rather than a defence of the decision originally made. The Department should approach a defence of the original decision cautiously, in order to avoid an apprehension of bias in any re-making of the decision that may be required on a remittal.[41] To that end, the decision-maker is required not to defend a decision that it realises has been infected by error, but to assist the Tribunal to identify that error and to make submissions as to how the decision is best re-made." (Emphasis added)
115. Regrettably, during the course of the proceedings in this matter, the Presiding Member of the Tribunal needed to remind the Respondent's counsel about this obligation and the nature of the review and emphasised to counsel for both parties that the matter was not an adversarial inter partes dispute but a review of a government decision.
116. At times, during the course of the review proceedings, the matter resembled a custody dispute in the Family Court, with each party (including the Respondent) appearing to promote the rights and qualities of its preferred caregiver. This extended to the Respondent's counsel criticising (via somewhat aggressive cross examination) the qualities of the Applicant as the less preferred caregiver. On one occasion the Tribunal reminded the Respondent's counsel that it was the Respondent that had placed the child with the Applicant in the first place under a temporary placement after assessing her suitability.
117. We refer to the comments of Senior Member Poljak in Merc Training Pty Ltd and Australian Skills Quality Authority [42] at [15]:
I accept that ASQA (the decision-maker) is entitled to act firmly and properly to protect its interests and can take all legitimate steps to pursue and defend claims, however when litigation descends into being unnecessarily obstructive and combative, it is of no assistance to the Tribunal. The role of ASQA is not simply to seek to uphold the existing decision even though that might be the approach which would be taken in ordinary litigation. (Emphasis added)
118. Assisting the Tribunal to arrive at the correct or preferable decision may involve taking steps such as presenting new material where relevant and providing specialist evidence when it may assist. This obligation on a government agency may include reconsidering the original decision at the time of the Tribunal review for the purpose of determining whether it continues to represent the correct or preferable decision and furnishing evidence and submissions to the Tribunal to ensure that the Tribunal is in the best position to make the correct or preferable decision.[43]
119. Responding to requests from the Tribunal for assistance on particular issues in order to reach the correct and preferable decision (such as the request for a psychological opinion regarding the competing harm considerations and the capacity of the maternal great-aunt to look after the child), involves the Respondent acting in a way in which it would have acted had a similar request been made by the original decision-maker.
120. As President Hughes reflected upon in WWC & Anor v DPC (quoted above), it is well accepted that the role of the Respondent in merits review proceedings is not simply to seek to uphold or defend the existing decision, even though that might be the approach which would be taken in ordinary litigation in a court. This is reflected in the wording in s 35 of the SACAT Act.
121. In this matter the Respondent's approach at all times (until forced to change its position as a result of the Cook report) was to doggedly defend the decision under review (i.e., by promoting the ATSICP Principle above all other considerations) in what can only be described as an inflexible and partisan manner.[44]
122. The evidence established that the initial decision-maker placed too much emphasis on the ATSICP Principle and elevated those considerations above all other relevant placement principles and harm considerations for the child, including the s 11 principles and the paramount principle in s 7 of the CYPS Act. The evidence also established that the enthusiasm of senior officers of the Department to promote that approach led to a failure by the decision-maker to properly assess the practicability of the proposed placement and/or to properly consider the harm that would likely be experienced by the child having yet another placement move in her short life.
123. In our view, this inflexible approach to decision-making at the outset became entrenched and the Respondent's initial decision-making error affected the manner in which the proceedings were conducted in the Tribunal. Such an approach does not reflect the correct approach by a government agency in a merits review, particularly when the welfare of a child is at stake.
124. Merits review has a broader, long-term objective of improving the quality and consistency of the decisions of government decision-makers in order to ensure the enhancement of openness and accountability of government decisions.
125. Having considered all of these matters, we are satisfied, in the very unusual and specific circumstances in this matter, that it is appropriate to depart from the default position on costs set out in s 57(1) of the SACAT Act. In the exercise of our discretion under s 57(2) of the SACAT Act we find that there are proper grounds to order that the Respondent should pay the Applicant's reasonable costs of the review in this matter.
1. Pursuant to section 57(2) of the SACAT Act, we order the Respondent Department in the review proceedings to pay the Applicant's costs of the proceedings up until the 11 September 2020 as agreed, or, failing agreement, as determined by the Tribunal.
[1] See also Children and Young People Safety Act 2017 (SA) s 158 ('CYPS Act').
[2] The Applicant's counsel argues that this is a significant recommendation in terms of the cost argument as it indicates that the initial decision-maker had not properly assessed the proposed placement.
[3] A temporary placement under s 77(2) (a) of the CYPS Act must not exceed a period of three months.
[4] CYPS Act (n 1) ss 5 and 7-12; WWZ & Anor v Department for Child Protection [2020] SACAT 111; RHN & Anor v Department for Child Protection [2021] SACAT 75.
[5] Section 12 states that the Aboriginal Child Placement Principle is 'Subject to the placement principles...'. The s 11 placement principles require the decision maker to consider that children should be placed in a safe, nurturing, stable and secure environment; that the preferred option is to place a child with a person with whom they have an existing relationship and; that approved carers are entitled to be involved in decision-making relating to children in their care.
[6] The Tribunal formed a favourable impression of the maternal great-aunt as an honest, caring, and loving person who would readily provide care to any of her kin.
[7] Evidence provided by psychologist Ms L Cook.
[8] This question had been deferred by the Tribunal to the full hearing from a ruling on the papers on 29 July 2020.
[9] Not the ultimate test as the wording in the Act refers to competing harm considerations, but the concept of the child's 'best interests' is referred to in s 12 (3)(b) of the CYPS Act.
[16] South Australian Civil and Administrative Tribunal Regulations 2015 (SA) reg 7 ('SACAT Regulations').
[19] See Colgate-Palmolive & Colgate Palmolive Pty Ltd v Cussins Pty Ltd [1993] FCA 536.
[22] SAHA v Brady & Milera; Oshlack v Richmond River Council (1988) 193 LCR 72 at 107 [92] per McHugh J.
[24] See Tronnolone v Edwards & Bryan [2016] SACAT 27 (24 August 2016) Parker J (then President of the Tribunal) and the comments above about SACAT Act s 91and SACAT Regulations reg 11.
[25] Hanna v City of Marion & Anor [2020] SACAT 21 [45 - 49].
[26] At the time that the proceedings were litigated there were no relevant decisions in SACAT concerning the subject matter of placement reviews under the CYPS Act.
[28] The Tribunal notes that each matter is different on its facts. It is not always necessary to seek a full psychological evaluation of a placement decision. We recognise that the Department needs to make a multitude of decisions in a multitude of different factual scenarios. We appreciate that delay in making placement decisions whilst waiting for expert reports can increase the risk of harm to a child.
[29] WWZ & Anor v The Department for Child Protection (n 27) [206 - 213].
[30] Book of documents, p 6, 8 and 9 Internal Review Report and related case note entries - reference to the caregiving stressors already in existence.
[34] Case note documentation reveals that following a meeting with a supervisor, regarding the decision to move the child on 21 January 2020, the following was recorded: 'According to the recommendations of PAC (Principal Aboriginal Consultant) Dan Mitchell made after the meetings with the related parties, supervisor's opinion is to proceed with [the child]s placement with [the maternal great-aunt] as she is a family member of [the child], fully registered Aboriginal foster carer, supported by AFFS, is willing to look after [the child] for long-term. Transition of placement should happen as quickly as possible. No psychologist consultation is necessary' (emphasis added).
[35] Directions issues on the papers on 29 July 2020.
[36] Thomas Foods international Pty Ltd v Adelaide Hills Council & Anor (n 20).
[37] Ibid, Tronnolone v Edwards & Bryan (n 24).
[38] This overlaps to some extent with the considerations in s 57(1)(a) of the SACAT Act about keeping costs to a minimum.
[39] Merc Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 2298, [14 - 23].
[41] See by analogy, R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35-36 (Gibbs, Stephen, Mason Aickin and Wilson JJ).
[43] Hon Justice Garry Downes, Government Agencies as Respondents in the Administrative Appeals Tribunal, (Administrative Appeals Tribunal,16 June 2005).
[44] We observe that the Respondent's counsel unapologetically defended this partisan approach in his final submissions on costs and agreed that there had been a considered and determined focus by the Department on the important ATSICP Principle in this matter.
GKZ
Department for Child Protection [2022] SACAT 29
(1980) 144 CLR 13