ZIV v ZIZ

Grounds of appeal

1. The Notice of Appeal, filed on 30 August 2018, and the submissions made in support of the appeal, filed 25 October 2018, identify a single ground of appeal, namely that the finding made by the Tribunal that the subject person lacked capacity to make the 2015 enduring guardianship instrument was against the weight of evidence. A finding of fact said to be against the weight of evidence does not raise a question of law. Therefore, to appeal the decision to revoke the 2015 enduring guardian appointment, the appellant required leave of the Appeal Panel: s 80(2)(b) of the NCAT Act.
2. In support of the appeal, the appellant relied upon the following contentions 1. "That the Enduring Guardian document had been successful in operation prior to it being revoked by the Tribunal. 2. When [the subject person] met with her solicitor of the time on 25 November 2015 a letter was drafted by her solicitor indicating that there was no cohesion and that the requisite capacity was held. 3. A Registrar of the Local Court reached a view on 9 December 2015 that [the subject person] had capacity to execute the Enduring Guardian document. 4. The Tribunal failed to consider the draft Enduring Guardian document prepared following [the subject person's] meeting with her solicitor on 25 November 2015. 5. The Tribunal erred by failing to reach its decision based on moral grounds."

Power to award costs

1. Section 60 of the NCAT Act creates the general rule that each party to proceedings is to pay their own costs: s 60(1). An Appeal Panel may only order costs "if satisfied that there are special circumstances warranting an award of costs (emphasis added)": s 60(2). Section 60(3) sets out a non-exhaustive list of factors that may be taken into account in deciding whether there are special circumstances warranting an award of costs: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
2. The term "special circumstances" is not defined by the NCAT Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16])

Submissions in respect of costs

1. The costs applicant urges the Appeal Panel to order the appellant to pay her costs of the appeal, asserting that special circumstances are established because there were no reasonable prospects that the appeal would succeed. She considers it relevant that no new evidence "came to light" between the filing of the Notice of Appeal and the decision to withdraw the appeal. She points out that she was put to the expense of instructing solicitors to prepare a response to the appeal, only to discover that a week before the hearing of the appeal, when significant preparatory work had been undertaken, that the appellant had decided to withdraw the appeal.
2. Not surprisingly, the appellant opposes the application for costs. She refutes the appellant's assertion that there were no reasonable prospects of the appeal succeeding. In support, she points to the following contentions, which she asserts establish that the impugned finding was against the weight of evidence: 1. The letter written by the subject person's solicitor on 26 November 2015 inviting the solicitor for the costs applicant to comment on the proposed amendment to the 2012 enduring guardian instrument to add the appellant as enduring guardian. In that letter the solicitor stated that the proposed amendment was drafted after he had met with the subject person alone and obtained advice from the subject person's general practitioner confirming that she had capacity to make the proposed amendments. The solicitor wrote: "Given the considerable disharmony between your client and [the costs applicant], we were careful to ensure that there was no persuasion or coercion.." 1. A short report dated 25 November 2015 prepared by the subject person's general practitioner, stating that in his opinion the subject person has capacity to make a decision about "her enduring guardianship" and wants to include the costs applicant as one of her enduring guardians. 2. A certificate dated 12 March 2016 prepared by the subject person's solicitor pursuant to s 19(1) of the Powers of Attorney Act 2003 (NSW), in which he stated that he had explained the effect of the enduring power of attorney made in March 2016 to the subject person and she seemed to understand the effect of that instrument.
3. The Tribunal considered in its reasons for decision at [63]-[75] the competing evidence about whether in December 2015 the subject person had capacity to amend the 2012 enduring guardian appointment. After considering that material the Tribunal, the Tribunal concluded at [77]: The Tribunal was not satisfied that [the subject person] was capable of understanding the implications of the new instrument that she was executing. Instead the Tribunal considers that the evidence indicates that the change to the enduring guardianship appointment was largely a matter which occupied [the third daughter] and [the appellant's] minds, and that it was under their influence that [the subject person] sought to make the change that she did.
4. To succeed in the appeal, the appellant was required to establish that the impugned finding was against the weight of evidence. While for the purpose of this costs application it is unnecessary to determine the issue, it is difficult to see on what basis the Appeal Panel could have concluded that the finding was against the weight of evidence in circumstances where the finding was supported by ample medical evidence.
5. But in any event, even if it were satisfied that the finding was against the weight it would not necessarily follow that we would have exercised the discretion to grant leave. The principles which govern the granting of leave to appeal under s 80(2)(b) of the NCAT Act were considered in Collins v Urban [2014] NSWCATAP 17 at [82]. In that decision, the Appeal Panel referred to the decision of SAB v SEM [2013] NSWSC 253 (White J) in which his Honour at [9] emphasised the need to exercise restraint in exercising the discretion to grant leave to appeal: Underlying these constraints is the need to recognise that Parliament has entrusted to the Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal has gone about that fact finding process in a way which is so unorthodox as to be likely to produce an unfair result. It is not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal.
6. While it is neither possible nor appropriate to predict what decision would have been made had the appeal proceeded, the inescapable conclusion is that the appellant's case was not strong. However, while close to the line in our view the appeal could not be described as hopeless or having no tenable basis in fact or law. Had there been evidence of other factors supportive of a finding of special circumstances, such as the appellant conducting the proceedings in a way that unnecessarily disadvantaged other parties or for some collateral purpose, we probably would have concluded that special circumstances are established.
7. While the considerations are finely balanced we are not satisfied that special circumstances warrant an order for costs.

Orders 1. The application for costs is dismissed. 2. A hearing on the application for costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

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 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: 04 April 2019