TPJ [2015] NSWCATGD 15

NCAT Guardianship|2015-03-12

What the Tribunal decided

The Tribunal decided to dismiss the costs application.

The proceedings by Mr QNJ and the principal family members

This costs application, made by Mr IBJ, arose from proceedings in the Guardianship Division of this Tribunal commenced by his son Mr QNJ. On 2 October 2014 the Tribunal received from Mr QNJ an application seeking the appointment of a guardian for his mother, Mrs TPJ. The hearing of that application was conducted at Balmain, for a full day, on 29 November 2014.
Mrs TPJ was 93 years of age at the time of the hearing. She is of Jewish heritage and culture. She is married to Mr IBJ. Mr and Mrs TPJ's two children are Mrs ORT and Mr QNJ. Mrs ORT is a qualified and admitted lawyer. Mr QNJ is a senior anaesthetist in private practice at Sydney and a Visiting Medical Officer at a public hospital, although he has not worked at that hospital in a clinical capacity since April 2012.Mrs ORT's daughter and Mrs TPJ's grand-daughter is Ms MVT. She is also a qualified and admitted lawyer.

Mrs TPJ's medical condition and hospital admissions

It has been reported that Mrs TPJ has a hearing impediment and also has indications of brain damage, apparently resulting from a left internal capsule/basal ganglia infarct relating to a cerebrovascular accident (that is, a stroke).
Mrs TPJ's recent medical history is reported to be as follows:

Mrs TPJ was admitted to a specialist medical and rehabilitation hospital at East Sydney in July 2014 following a fall a few days earlier. She was treated for a fractured shoulder but tests at the hospital indicated that she also had a urinary tract infection. She was discharged from hospital on 8 August 2014. Since her discharge Mrs TPJ has lived with Mrs ORT and Ms MVT, with the exception of her time at a public hospital as noted below.
On 27 August 2014 Mrs TPJ was taken to public hospital X in Sydney because of observed excessive drowsiness, but was discharged from that hospital on the same day at the request of Mrs ORT.
On or about 30 August 2014 Mrs TPJ had a stroke. She was admitted as an inpatient at public hospital Y and she remained there until 28 October 2014. It was reported that during that period Mrs TPJ had fluctuating levels of consciousness. However whilst at public hospital Y there was no formal or complete assessment of her cognitive capacity undertaken.
Mrs TPJ was discharged from public hospital Y on 28 October 2014. She returned to reside and be cared for at the home of her daughter Mrs ORT and granddaughter Ms MVT.

The guardianship application

On 2 October 2014 the Tribunal received from Mr QNJ an application seeking the appointment of a guardian for Mrs TPJ. The application was subsequently amended and the amended application lodged with the Tribunal. Mr QNJ's amended application and its annexures indicated that he was seeking a plenary guardianship order for Mrs TPJ. Mr QNJ's amended application was the subject of the Tribunal's hearing on 20 November 2014 and its order on 24 November 2014, which was an order dismissing the guardianship application.

The costs application

On the day before the hearing the Tribunal received from lawyers representing Mr IBJ an application for costs. Payment of Mr IBJ's costs was sought on an indemnity basis or alternatively "on the ordinary basis" from Mr QNJ as the applicant in the guardianship proceedings. At the conclusion of the hearing the Tribunal decided to adjourn the hearing of the costs application and to make certain directions to the parties concerning the lodgement and delivery of their submissions on costs. It was indicated that the costs application would be decided on the papers (unless there was a successful application for a hearing of the costs issues, and no such application was made). Accordingly the costs application was determined on the papers, in accordance with paragraph 19 of the Tribunal's Procedural Direction on Costs in this Division.

Parties to the costs application

At the end of these Reasons for Decision are lists of the parties to the costs application [appendix removed for publication]. In these Reasons "Costs Applicant" means Mr QNJ and "Costs Respondent" means Mr IBJ.

The hearing of the substantive application

Mr QNJ's application for a guardianship order will be referred to in these Reasons as "the substantive application" and the proceedings heard by the Tribunal on 20 November 2014 are referred to as "the substantive proceedings." The parties to the substantive application were:

Mrs TPJ, the subject person.
Mr QNJ, the applicant.
Mr IBJ, husband of Mrs TPJ.
Mrs ORT, carer.
Ms MVT, party joined by order of the Tribunal.
The Public Guardian, party by operation of s 3F of the Guardianship Act 1987 (NSW).

The following people attended that hearing and gave evidence to the Tribunal:

Mr QNJ, the applicant, son of Mrs TPJ.
Mr IBJ, husband of Mrs TPJ.
Mrs ORT, carer, daughter of Mrs TPJ.
Ms MVT, carer and party joined by the Tribunal, granddaughter of Mrs TPJ.
Mrs SPJ, daughter in law of Mrs TPJ (wife of Mr QNJ) (Attended but did not give evidence).
a Principal Guardian of the Office of the Public Guardian.

Dr Z, General Practitioner, gave evidence by telephone.
The following lawyers attended the hearing. However, only Mr NAC (appearing for Mr QNJ) and Mr HFK (appearing for Mr IBJ and Mrs ORT) were recognised by the Tribunal as the Legal Representatives of their respective clients.

For Mr QNJ

Mr NAC, barrister (Legal Representative).
Solicitor A.
Solicitor B.

For Mr IBJ and Mrs ORT

Mr HFK, barrister (Legal Representative).
a barrister (Junior counsel).
Solicitor C.
Solicitor D.
a graduate lawyer.

The Tribunal's Reasons for Decision in the substantive application

The Tribunal provided extensive written reasons for its decision to dismiss Mr QNJ's application for a guardianship order.
In summary, the Reasons for Decision:

confirmed the Tribunal's finding that Mr QNJ had standing to bring his application on the basis that he did have a genuine concern for the welfare of his mother Mrs TPJ;
explained the reasons for the Tribunal's finding that, on the basis of the evidence, Mrs TPJ is someone who is in need of a guardian within the meaning of the Guardianship Act and someone for whom the Tribunal could make a guardianship order because she has disabilities which prevent her from making some important life decisions;
explained the reasons for the Tribunal's finding that, on the basis of the evidence and on its analysis and application of the necessary statutory factors, particularly the principles and considerations set out in sections 4 and 14 (2) of the Guardianship Act, it should not make a guardianship order;
confirmed that the Tribunal's conclusion on this point involved a detailed analysis of the evidence which had been brought by Mr QNJ and involved in an analysis of the contentions put on his behalf that Mrs TPJ's existing family relationships could only be preserved only by making a guardianship order. In particular, the Tribunal analysed the proper scope of its obligation under subsection 14 (2) of the Guardianship Act to have regard to "the importance of preserving the person's existing family relationships." It gave reasons for rejecting the contentions made on behalf of Mr QNJ. It found that in applying this factor the Tribunal is required to take into account the existing relationships of Mrs TPJ, not those which might have existed earlier and not a relationship with her son which although apparently genuinely desired by him, is apparently based on his affection for his mother which is not reciprocated. The Tribunal was satisfied that its consideration of Mrs TPJ's existing family relationships as a whole did not justify the making of a guardianship order. The Tribunal, as part of the above conclusion, found that the proposal made on behalf of Mr QNJ for his ongoing periodic access to his mother was unworkable; and
explained the Tribunal's conclusion that the making of a guardianship order for the sole purpose of facilitating the provision of information to Mr QNJ about his mother would not be justified. The Tribunal found that the provision of such information to Mr QNJ was something which could be arranged between family members and should not be the subject of an order.

The issues between the parties in the substantive proceedings

Although the parties were in agreement that Mrs TPJ was incapable of participating in the hearing and that she was someone for whom the Tribunal could make a guardianship order because she had disabilities which prevented her from being able to make some important life decisions, the parties were in dispute as to most other substantial issues in the proceedings. In particular the following issues were in dispute.

There was a substantial dispute as to the preliminary issue of whether Mr QNJ had standing to bring his application. In particular it was asserted on behalf of Mr IBJ, Mrs ORT and Ms MVT that Mr QNJ did not have a genuine concern for the welfare of his mother Mrs TPJ. Evidence and submissions on this preliminary issue occupied over one hour of the hearing time.
There was a dispute as to whether the making of a guardianship order would be the only way of preserving Mrs TPJ's family relationships and the exact nature of those relationships, particularly her relationship with her son Mr QNJ, the applicant. This involved the consideration by the Tribunal of detailed evidence and contentions put by the parties representing both sides of the argument.
There was a dispute on the related issue of whether the maintenance of the existing arrangements for Mrs TPJ's care and services at the home of Mrs ORT and Ms MVT to the exclusion of Mr QNJ, were arrangements which best preserved her welfare and interests. Again this involved consideration of substantial evidence and submissions from both sides.
There was a dispute as to the relative weight to be given to various items of medical and related clinical evidence, including in particular the evidence of Mrs TPJ's general practitioner.
There was a dispute as to the identity of any potential guardian.

Costs: statutory provisions and the Procedural Direction

The Tribunal's jurisdiction to consider costs applications and its power to make costs orders are set out in section 60 of the Civil and Administrative Tribunal Act 2013, ("the CAT Act"). It is important to remember that, as was confirmed in the recent case of OLL [2014] NSWCATGD 40 (27 October 2014) ("the OLL Case"), the starting point of the statutory framework for the costs jurisdiction is that each party must pay his or her own costs. Subsection (1) of section 60 specifically provides: "Each party to proceedings in the Tribunal is to pay the party's own costs."
Subsection (2) allows the Tribunal to award costs in relation to proceedings before it but: "only if it is satisfied that there are special circumstances warranting an award of costs."
Subsection (3) sets out particular factors which the Tribunal may have regard to in determining whether there are special circumstances. The factors listed in that subsection are as follows 1. whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, 2. whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, 3. 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, 4. the nature and complexity of the proceedings, 5. whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, 6. whether a party has refused or failed to comply with the duty imposed by section 36 (3), 7. any other matter that they Tribunal considers relevant.
There are four important points to be made about the structure and construction of section 60.
Firstly, the proper reading of the section must be that an award of costs is an exception from the general rule as set out in subsection (1), namely that in proceedings in the Tribunal each party is to pay its own costs.
Secondly, the existence or otherwise of "special circumstances" sufficient to displace that general rule is to be determined by the Tribunal in its discretion.
The third point is that it is not sufficient, for the making of a costs order, for circumstances which match the description in one or more of the paragraphs of subsection (3) to be found to exist. The circumstances must also be found to be "special circumstances" which warrant an award of costs in the particular case. The subsection is suggestive of factors which may warrant a finding of "special circumstances." It does not mandate that a finding must be made simply because facts matching one or more of the subsection's paragraphs are found to exist.
For example, the Tribunal in a particular case may find that the respondent to the costs claim has been responsible for prolonging unreasonably the time taken to complete the proceedings. But it may also find that the applicant for a costs order has been equally (or perhaps to a greater extent) responsible for the same thing. In those circumstances it must, of course, be open to the Tribunal to find that the facts, although they align with paragraph (b) of s 60(3), do not amount to "special circumstances warranting an award of costs".
The fourth point is that the class of circumstances which may give rise to a finding of "special circumstances" is not limited to those listed in paragraphs (a) to (f). Paragraph (g) allows the Tribunal to have regard to any other matter that the Tribunal considers relevant.
In considering the jurisdiction of the Guardianship Division to make costs orders regard must also be had to the Procedural Direction governing costs in this Division, issued on 2 January 2014. The Procedural Direction sets out factors which will impact upon the determination of such costs applications. These include:

the fact that the Division exercises a protective jurisdiction in relation to people with decision making disabilities (paragraph 5 of the Procedural Direction);
the principle that: "applications for costs in protective jurisdiction applications are uncommon and the Guardianship Division does not make costs orders as a matter of course, nor do costs necessarily 'follow the event'; (Paragraph 18 of the Procedural Direction);
the fact that the Tribunal conducts its proceedings in an investigative or inquisitorial manner rather than an adversarial manner. (Paragraph 8 of the Procedural Direction and s 38 (4) of the CAT Act);
the requirement that in exercising any of their functions under the CAT Act, including their power to make costs orders, Tribunal panels in this Division must have regard to the principles set out in section 4 of the Guardianship Act, including the requirement to give paramount consideration to the welfare and interests of persons who have disabilities. (Paragraph 5 of the Procedural Direction);
the guiding principles set out in s 36 (1) of the CAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the fact that all parties to proceedings as well as each Australian legal practitioner involved must give effect to this guiding principle (Paragraphs 6 and 7 of the Procedural Direction);
the requirement that the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the costs of the parties and the Tribunal is proportionate to the importance and complexity of the subject application of the proceedings (Paragraph 6 of the Procedural Direction and s 36 (4) of the CAT Act).

The parties' written submissions as to costs

The Costs Applicant Mr IBJ and the Costs Respondent Mr QNJ, through their lawyers, each made written submissions to the Tribunal in respect of costs. There were five submissions in all, as follows: 1. the initial costs claim and accompanying submissions, the by way of a letter from the solicitors for the Costs Applicant, dated 19 November 2014; 2. submissions from Counsel for the Costs Respondent dated 9 December 2014; 3. further submissions by the Costs Applicant dated 12 January 2015; 4. a further letter from the solicitors for the Costs Applicant dated 22 January 2015; and 5. further submissions from Counsel for the Costs Respondent dated 9 February 2015.
The directions made by the Tribunal with its orders of 24 November 2014 reflect that in addition to the initial submissions setting out the costs claim (that is the submissions referred to in (1) above) there should be only one set of written submissions from each of these parties. The Costs Respondent was directed to lodge with the Tribunal "any written submissions" (emphasis added) he wished to make on costs by a particular date, being 28 days from the effective date of the directions and the Costs Applicant was directed to lodged with the Tribunal "any written submissions" (emphasis added) which he wished to make in reply within a further 21 days.
The further letter from the Costs Applicant of 22 January 2015 (item (4) above) merely provides further particulars as to the composition of the costs incurred by the Costs Applicant and clarifies the nature of the costs order which is sought. Whether or not it was lodged within time, a sensible approach is that it should be considered as an adjunct to the first submission outlining the nature of the costs claim. However, the Costs Respondent's further submissions of 9 February 2015 are clearly out of time. The Tribunal is satisfied that the fair and proper course is for it to take no account of those submissions.
Each of the written submissions addresses in some detail particular factors under section 60. The Tribunal's analysis and determination of these applications is set out below. However, it should be added that the Costs Applicant's submissions of 19 November 2014 were apparently prepared on the day prior to the hearing of the substantive application (which was 20 November 2014).
They appear to have been prepared in contemplation of oral arguments as to costs being taken at the conclusion of the hearing. Whilst that approach may be regarded as reasonable in the circumstances, the result of that is that the submissions in several instances wrongly assume either that particular contentions would be pressed by the Costs Applicant or his Legal Representative at the hearing or, in some instances, that the Tribunal would decide issues in a particular way. We accept that in the circumstances of those submissions by the Costs Applicant were properly made. However the fact that they contain wrongful assumptions reduces the weight which this Tribunal Panel can give to them. Particular instances where these assumptions have proven to be incorrect are noted in the discussion which follows.

Four particular issues

In considering whether costs should be awarded in this matter there are four particular aspects of the case and of the hearing which are relevant.

(i) The standing of Mr QNJ

The first of these is the standing of the Costs Respondent Mr QNJ to bring the proceedings. As noted on page 5 above the Tribunal in the substantive proceedings found that Mr QNJ did have a genuine concern for the welfare of his mother Mrs TPJ and on that basis he had standing to bring his application. Unfortunately in their written submissions of 19 November 2014 the solicitors for the Costs Applicant appear to assume that Mr QNJ lacked proper standing. This incorrect assumption underlies their contention that Mr QNJ's claims lacked strength within the meaning of paragraph (d) of section 60 of the CAT Act. This is one area where an incorrect assumption must result in the lawyers' contention being of reduced persuasive force. In the substantive proceedings the Tribunal spent considerable time hearing the evidence and submissions as to this preliminary issue of "standing." In the Reasons for Decision the evidence and submissions are analysed in considerable detail and the Tribunal's findings explained in similar detail. (See pages 6 to 9 of the Reasons for the substantive proceedings).

(ii) The contention that the substantive application was misconceived or lacking in substance

In many cases a contention that the applicant lacks standing is linked to or accompanied by a contention that his or her application is frivolous or vexatious or is misconceived or lacking in substance. There was no express linking of these two issues in the present case but there were significant submissions on behalf of the Costs Applicant and other members of his family that the substantive application was misconceived or lacking in substance. Significantly however, although the written submissions by the solicitors for the Costs Applicant and the written submissions by his Senior Counsel, both dated 19 November 2014, did make such contentions, the "misconceived and lacking in substance" ground was not specifically pursued by oral submissions at the hearing and there was no submission at the hearing that the application should be dismissed on the ground either that it was frivolous or vexatious or that it was misconceived or lacking in substance.

(iii) The scope of the substantive application and its amendment

An annexure to Mr QNJ's application in the substantive proceedings stated that it sought a plenary guardianship order. A plenary order gives the guardian custody of the person to the exclusion of any other person: s 21(1) Guardianship Act. A guardian appointed under a plenary guardianship order has all the functions that a guardian has at law or in equity. Plenary orders are potentially limitless and have not been exhaustively defined by the Supreme Court or the Guardianship Tribunal. Under s 15(4) of the Guardianship Act, the Tribunal must not make a plenary guardianship order when making a limited guardianship order would suffice
In practice, it is extremely rare for the Tribunal to make a plenary guardianship order.
That annexure to the application also included, in a section headed "Draft Orders" conditions that would have imposed a specific code of conduct on the relevant parties and the guardian, with a view to providing access to Mrs TPJ by her son Mr QNJ.
In argument at the hearing and in the written submissions made on behalf of the Costs Applicant it was suggested that the framing of the substantive application in this way was improper and that it was inconsistent with the obligation of the Costs Respondent to facilitate the just, quick and cheap resolution of the real issues. In argument at the hearing Mr HFK on behalf of Mr IBJ contended that any attempt by the Tribunal to make orders in accordance with the specific code of conduct included in the draft orders would be beyond the jurisdiction of the Tribunal. Although it was unnecessary to decide that point, there was a clear implication in the submissions made on behalf of Mr IBJ (and other members of his family) that the framing of the substantive application in this way substantially added to their costs of the proceedings.
In considering this aspect the Tribunal has taken note of the fact that at the opening of the hearing Mr NAC of Counsel, the Legal Representative for Mr QNJ, abandoned any claim for a plenary guardianship order and confirmed that only a limited guardianship order would be sought. Subsequently, at a relatively early stage of the hearing Mr NAC confirmed that Mr QNJ would not seek a detailed prescriptive type of order containing the code of conduct are contemplated by the draft orders in the application, but would rather be seeking the appointment of a guardian with "access and information" functions.
This Tribunal Panel accepts that some additional costs may have been incurred by the Costs Applicant by reason of the inclusion in the substantive application of a request for a plenary guardianship order and the proposal for a detailed order (possibly going beyond the jurisdiction of the Tribunal) which incorporated a code of conduct for the guardian and the relevant parties. However in assessing whether these facts warrant the making of a costs order we have also given substantial weight to the following factors:

The fact that any Tribunal Panel hearing an application is in no sense bound or directed or in most cases even inclined to make a particular form of guardianship order simply because that is suggested in material accompanying the application. In that sense each application is "at large" when being considered by the Tribunal. By that we mean that there can be nothing in the form of any application for a guardianship order which binds or directs the Tribunal to make any particular order.
The fact that it would be highly unlikely that on these facts the Tribunal would give consideration to the making of a plenary guardianship order. Indeed s 15(4), cited above, would be a strong inducement not to do so.
The fact that these difficulties were removed at an early stage of the hearing.

(iv) The OLL Case

There have been few published decisions as to the proper application of the costs provisions of the CAT Act since that Act came into force on 1 January 2014. However the case of OLL [2014] NSWCATGD 40 (27 October 2014) is a substantial decision on those provisions. In that case list Division of the Tribunal examined in some detail whether there were special circumstances which, in the circumstances of that case, would justify a costs order. In that case, following its detailed analysis of the facts and the law, the Tribunal decided that a costs order should be made on the basis that "special circumstances" within the meaning of section 60 of the CAT Act had been established.
The OLL Case was relied upon extensively by the Costs Applicant in his solicitor's submissions dated 12 January 2015 as justifying an award of costs in the present case. However in the view of the current Tribunal Panel, although the OLL Case is a valuable and authoritative guide to the operation of the costs provisions of the CAT Act and in particular to section 60, that case can be distinguished on the facts from the present costs application. The principal grounds of distinction are summarised as follows. 1. In the OLL Case it appears that the costs respondent produced, over time, a very large volume of documentary information, evidence and submissions to the Tribunal and that these were found to be of very little evidentiary value by the Tribunal and clearly to have occupied an unnecessary amount of the Tribunal's time and that of the other parties. In its Reasons for Decision in the OLL Case the Tribunal described the applicant's documentary material in the following terms: "A large volume of documents…containing reference to incidents which have taken place over years- supported in turn by notes claimed to have been made by (the applicant) contemporaneously in relation to these incidents…These documents are all of his own manufacture and the Tribunal found them on the whole to be self-serving. (The applicant) constructed from these "observations" and evidentiary evidence-which had no foundations other than his own wishes or beliefs, many of which were based in misperceptions...(The applicant's) claims are not supported by a single witness or any independent evidence.": [2014] NSWCATGD 40 at paragraphs 81 and 83. 1. The evidence brought by Mr QNJ in this case is of a different character. There was a substantial volume of documentary material produced by Mr QNJ, but equally there was a correspondingly large volume of documentary material produced by Mr IBJ and the other members of his family opposed to the application. 2. In the written submissions made by the solicitors for the Costs Applicant in the present case dated 12 January 2015 there are a number of misstatements of the position and the findings of the Tribunal. These include, at paragraph 87, a statement that the Tribunal had: "rejected as not credible (within the meaning of OLL) all evidence which [Mr QNJ] placed before it" 1. That is not the case. Although some of Mr QNJ's evidence was found to be of limited value and some of it was self-serving, much of his evidence at the hearing, particularly that as to the nature of his relationship with his parents, was accepted as credible. His lawyers' written submissions were cogent and in many instances persuasive. The Tribunal found that Mr QNJ had a genuine concern for the welfare of his mother and in its Reasons the Decision, at page 9, the Tribunal said: "We found [Mr QNJ]'s descriptions of his concern for his mother… to be genuine and we accepted his contentions that his primary motivation in bringing this application was to maintain his relationship with her." 1. In the OLL Case the applicant, having burdened the Tribunal and the other parties with his voluminous documentary material, then proceeded by indicating at the opening of the hearing indicate that he wished to withdraw his applications. There was no withdrawal in this case, although there was admittedly a change to the form of guardianship order sought and the terms of the order (which, as discussed above are matters "at large" before the Tribunal). We do not believe that it is reasonable or proper to compare these changes at the opening of the substantive proceedings in this case with the peremptory withdrawal of all applications by the applicant in the OLL Case. 2. In the OLL Case the Tribunal found that the proceedings were not "reasonably commenced," citing the words of His Honour Justice McHugh in the High Court Case of Lai Quin (1997) 186 CLR 622. In the present case the initial written submissions to the effect that Mr QNJ's application was misguided or otherwise lacking in substance appear not to have been pursued at the hearing. Whilst the present Tribunal Panel cannot decide that particular issue after the event, it is a reasonable conclusion from the reading of the Reasons for Decision of the Tribunal in the substantive proceedings that it would not have been prepared to make a finding that the proceedings were not reasonably commenced.
As the Tribunal in the OLL Case noted (at paragraph 74 of its Reasons), in most of the matters in which the Tribunal has previously awarded costs, the application has been dismissed on the basis that the applicant lacked standing: see for example ACJ (No.2) [2007] NSWGT 24; SWN [2011] NSWGT 5 and DCN [2011] NSWGT 26. Significantly, in the present case the Tribunal in the substantive proceedings dismissed an application that the applicant Mr QNJ lacked standing.

Are there special circumstances in this case warranting an award of costs?

We have analysed below each of the paragraphs of s 60(3) to determine whether, separately or collectively, they give rise to "special circumstances which warrant an award of costs" within the meaning of that subsection.

(a) Conduct of the proceedings in a way that unnecessary disadvantaged another party.

The Tribunal is satisfied that although Mr IBJ the Costs Respondent, may have disadvantaged the other parties by making a claim for a plenary guardianship order and in framing a particular code of conduct as the basis for a suggested guardianship order, in his application, the degree of disadvantage to the other parties was minimised by the factors set out in the bullet points on page 15 above. The Tribunal does not accept that any unnecessary disadvantage to another party which might have arisen was such as to warrant the making of a costs order and to that extent it would not constitute, in the circumstances of this case, "special circumstances warranting an award of costs" within the meaning of s 60(3) of the CAT Act. In reaching this decision the Tribunal notes that there were particular actions of the other parties, in particular their late filing of voluminous evidence, which substantially disadvantaged Mr QNJ.
For the avoidance of doubt we find that the actions of the Costs Respondent in this regard do not, either individually or collectively with the other factors considered below, amount to special circumstances warranting an award of costs.

(b) Conduct which unreasonably prolonged the time taken to complete the proceedings.

The Tribunal cannot be satisfied that any actions of Mr QNJ the Costs Respondent unreasonably prolonged the time taken to complete the proceedings. The Tribunal takes into account that Mr QNJ attempted on at least one occasion prior to the hearing to arrange a mediation or conciliation meeting. The Tribunal accepts the account given by Mr QNJ's Counsel that some attempt was made in the course of the hearing day to settle or at least to narrow the issues in dispute between the parties. To the extent that it might be contended that the broad scope of the application by Mr QNJ and his initial request for a plenary guardianship order prolonged the time necessary for the other parties to prepare their case, the Tribunal cannot be satisfied on the basis of the evidence that such conduct unreasonably prolonged the completion of the proceedings, or that either individually or collectively with the other s 60(3) factors it was such as to amount to a special circumstances warranting an award of costs.

(c) The relative strengths of the claims, including whether a party has made a claim that has no tenable basis in fact or law.

The Costs Applicant, Mr QNJ, through his solicitors in their written submissions of 12 January 2015, (issued well after the publication of the Tribunal's Reasons for Decision), submitted that Mr QNJ's application had no tenable basis in fact or law and was not soundly based and that it was not supported by any credible evidence.
This Tribunal Panel is surprised by the absolute terms in which these contentions are made. They are simply not accurate.
The Tribunal (contrary to the early submissions on behalf of Mr IBJ) found that Mrs TPJ was a "person in need of a guardian" and that she was someone for whom it could make a guardianship order because she had disabilities which prevented her from making some important life decisions.
The Tribunal, based partly on acceptance of Mr QNJ's evidence, made a specific finding that Mr QNJ had a genuine concern for his mother's welfare. Mr QNJ's claim for a guardianship order with access and information functions had a tenable basis in law. It was this reduced scope of application which was pursued at the hearing. Evidence was put by and on behalf of Mr QNJ to that end. That was not unreasonable or unexpected. Guardianship orders of this sort, particularly those with an access function, are common.
Ultimately the Tribunal could not be satisfied that it should make such a guardianship order in this case. Central that to that conclusion was the finding that Mrs TPJ's current relationships with her husband her daughter and her granddaughter were vital to the continuation of her current pattern of care and medical attention, and that based on its consideration of these existing family relationships there was no justification for the making of an order. But in the circumstances of this case that result does not justify the making of a costs order on the basis put by the lawyers for Mr IBJ. This ground is not established as a special circumstance warranting an award of costs
One view of the result in the substantive proceedings might be that the claims of Mr IBJ and the other family members opposing Mr QNJ was the stronger of the two claims. However, in the Tribunal's view, given the importance of the basic principle confirmed in s 60(1) that each party to proceeding should pay its own costs, it would be unlikely to be a sufficient or proper basis for the making of a costs order that one claim was stronger than the other and had prevailed. It might be otherwise if the respondent to the costs claim had a palpably weak case or one which had no tenable basis in law or fact. That was not the case here.

(d) Nature and complexity of the proceedings.

The Tribunal cannot be satisfied that the substantive proceedings were particularly complex, even though they involved what might be regarded as a difficult decision to refuse a guardianship order and so to maintain Mr QNJ's isolation from his mother (at least subject to any subsequent arrangements being made privately between the parties).
It is accepted that the proceedings, or at least the hearing, would have been far more complex if the claim for a plenary guardianship order had not been abandoned, or if the jurisdictional issue (that is, the extent of the Tribunal's jurisdiction to make orders incorporating the "code of conduct" provisions included in the guardianship application) had been pursued. But that issue was not pursued at the hearing, principally of course because there was an early indication from Mr QNJ's lawyers that his claim for an order of that type would not be pressed. Even if it could be maintained that the existence of the guardianship application in its original form was the cause of additional costs borne by Mr IBJ and the family members aligned with him, the Tribunal cannot be satisfied that that of itself, or in conjunction with our findings on any of the other elements of s 60(3), is sufficient basis for a finding that there are "special circumstances" which warrant the making of a costs order.

(e) Were the proceedings frivolous or vexatious or otherwise misconceived or lacking in substance?

As noted above, although the written submissions made on behalf of Mr IBJ prior to the hearing strongly suggest that Mr QNJ's claim was misconceived and lacking in substance, at the hearing there was no motion seeking dismissal of his application on the basis that it was frivolous or vexatious and the "jurisdictional issue" as explained and noted above was not expressly pursued at the hearing and was not the basis for any motion for dismissal of the claim.
The Tribunal cannot be satisfied that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance to an extent which would justify, either separately or in conjunction with any other factor under s 60(3), a finding that there are special circumstances which warrant the making of a costs order.

(f) Has there been a refusal or failure to comply with the guiding principle in s 36 (3) of the CAT Act?

The Tribunal accepts that the substantive proceedings, including in particular the way in which the guardianship application was framed, could have been approached and undertaken in a different way and one which would have more clearly facilitated the just, quick and cheap resolution of the real issues. The fault on the side of the applicant Mr QNJ lies most clearly in the way in which his guardianship application was framed, but the Tribunal can find no proper basis upon which can be said that Mr QNJ, in his conduct of the proceedings generally, failed to comply with the guiding principle.
But there was also fault in this regard on the part of Mr IBJ and the family members aligned with him. There was a very substantial amount of written submissions and statements made available to the Tribunal and many of these, including significant written submissions, were only made available on the day prior to the hearing
The Tribunal also accepts that Mr QNJ's lawyers appear to have been the initiators of attempts to bring about some agreement or reconciliation between the parties or at least to narrow the issues between them.
The Tribunal cannot be satisfied that Mr QNJ refused or failed to comply with the guiding principle in any manner or to any step extent which was of sufficient gravity or magnitude to justify a finding that his actions or omissions constitute "special circumstances" which would warrant an award of costs.

(g) Is there any other matter the Tribunal considers relevant?

The Tribunal has set out on pages 11-15 above its observations and conclusions in relation to four particular issues which may be relevant to its determination. For completeness we confirm that our conclusions as to those issues support the conclusion that there are no "special circumstances" warranting an award of costs in this case.
There is no other matter which the Tribunal considers relevant to its consideration of this issue.

Conclusion

It follows that there are no special circumstances in this case which would warrant an award of costs and accordingly the costs application by Mr IBJ must be dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2015

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Judgment (29 paragraphs)

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