GKZ v Department for Child Protection & Anor [2022] SACAT 76 | Case summary

GKZ v Department for Child Protection & Anor

[2022] SACAT 76

SA Civil and Administrative Tribunal|2022-08-30|Before: Ms P

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General information, not legal advice.

Judgment (7 paragraphs)

[1]

The applicant submitted that costs should be awarded pursuant to s 57(2)(d), which provides that the Tribunal can consider any relevant matter in making an order for costs. It was submitted that the provision is broad and unfettered in its grant of discretion and ought be exercised in a manner that ensures justice is achieved. The applicant contended that the making of a decision without power was a relevant matter that the Tribunal ought to consider in making an order for costs.
It was submitted by the Department that the success of an applicant in establishing procedural error, without more, should not provide a basis for an order for costs against the decision-maker and that to conclude otherwise would undermine the default position in s 51(7).
I find that the fact of an error in an administrative decision-making process is not, by itself, a relevant factor for the purpose of s 57(2)(d). The manner and circumstances in which the decision was wrongly made may be relevant, but nothing in these proceedings indicated that there was a relevant factor to take into consideration in this case.

[2]

As the present matter is within the Tribunal's review jurisdiction, the Tribunal is also required to have regard to the factors outlined in s 58(2). These are whether a party genuinely attempted to assist the decision-maker, and whether the decision-maker genuinely attempted to make a decision on the merits.

It was suggested by the applicant that, in making a decision beyond the scope of the delegation, the Department failed to comply with s 84 of the CYPS Act, which provides that certain placement decisions must be made by the Chief Executive. The applicant contends that the circumstances of this matter are that the decision-maker failed to comply with the Act in that the decision was not made in accordance with the legislation.
I do not accept that the provision is appropriately invoked where a decision-maker has been found to have acted beyond power because of a misapprehension as to the presence of authority to make a decision. The provision applies where the Tribunal believes a party is conducting the proceedings in a way that causes unnecessary disadvantage. Section 49(1)(b) is only relevant where a party breaches the SACAT Act or another act in the way it conducts proceedings. That is clearly not the case here.
Whilst it may be that the Department breached the CYPS Act in making the decision, that is not a relevant factor in the exercise of the powers under s 49. Even if it was, the mere presence of a factor under s 49(1) is not, in and of itself, sufficient to warrant an order for costs being made.
The success of the applicant in her challenge to the validity of the decision in these proceedings does not justify a costs order. The error made by the Department was procedural. There was no suggestion that it was intentional. The instrument of delegation was required to be examined carefully to reach the conclusion that it did not confer the power that the decision-maker apparently thought it did.
I am not satisfied that the starting position that each party bears their own costs has been displaced.

GKZ v Department for Child Protection & Anor

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Judgment (7 paragraphs)

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Legislation Cited (4)

Cases Cited (3)

GKZ v Department for Child Protection & Anor (No 3) [2022] SACAT 76 (30 August 2022)