ZQZ v ZRA

Publication of the names of the parties

1. The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Guardianship Division of NCAT, is prohibited under s 65(1) of the NCAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision due to s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided to order, pursuant to ss 65(1) (a),(b)&(c) of the NCAT Act, that the publication of these reasons, or any part of them, either by sound recording or transcript which includes any details that may identify the parties is prohibited.

The submissions of the parties

1. The second respondent says, in brief, that he incurred costs in obtaining legal advice in relation to the appeal in an amount set out in two invoices, delivered to him by his lawyers, in the total sum of $1,030.00. We note, however, that the first invoice in the sum of $420.00 was dated 14 October 2020, and described the period in which advice was obtained as "09/07/20 to 09/10/20," that is, before the appeal was dismissed. The second invoice in the sum of $610.00, dated 10 December 2020, is in respect of advice provided entirely after the appeal was concluded. The second invoice also dealt with advice regarding an earlier costs application the second respondent had made in the Guardianship Division, in respect of the proceedings which were the subject of this appeal.
2. In support of the application, the second respondent points to the lengthy history of proceedings in the Division below in relation to the first respondent. He says that the allegations made by the appellant in the proceedings which led to the decision which was the subject of the appeal were frivolous and vexatious, that the hearing was delayed on one occasion due to late service of documents by the appellant and that the statement of reasons of the Tribunal in the decision made it clear that there was no relevant concern identified in relation to his management of the first respondent's financial affairs.
3. He submits that the appeal was lodged and prosecuted without merit and that, in circumstances where the appellant failed to comply with directions in the appeal or otherwise participate at the hearing of the appeal, it is appropriate that he be awarded his costs.
4. In reply, the appellant refers to s 60(1) of the NCAT Act, dealt with below. He also notes the costs guideline promulgated by the Guardianship Division, wherein it is noted that "the protective jurisdiction exercised by the Guardianship Division of the Tribunal means that people should not be discouraged from bringing well-motivated applications to the Tribunal for fear of a costs order being made against them".
5. The appellant also points out that he was not informed that the costs applicant had sought leave for legal representation and that, had that occurred, he may have taken a different course in relation to the appeal.
6. For completeness, we note that no leave was given to the second respondent to be legally represented in the appeal.

Should the application for costs be determined on the papers?

1. Section 50 of the NCAT Act permits us to dispense with the requirement to hold a hearing if we are satisfied that the issues for determination can be determined adequately in the absence of the parties, by considering any written submissions or any other documents or material.
2. Having reviewed the submissions made by the parties, we conclude that the issues raised by the costs applications can be determined adequately by considering the written material provided.
3. Notwithstanding a potential jurisdictional issue, not raised by the parties, which we will deal with below, the substantive issues raised by the costs applications are not complex. Given the amount of the costs sought by the second respondent, if a hearing were to be conducted to determine the application it is likely that the parties would incur additional costs, disproportionate to the complexity and importance of the matters raised for determination.

Jurisdiction to entertain the costs application

1. The second respondent made no application for costs during, or at the conclusion of, the appeal. On one view, then, the Appeal Panel is 'Functus Officio' and has no power to entertain a subsequent costs application: see, for example, the argument raised in The Owners - Strata Plan 72347 v P&D Bush Pty Ltd [2019] NSWCATCD 69.
2. This issue was not raised by the parties, and in those circumstances we will consider, below, whether the application justifies a finding that special circumstances have been demonstrated and whether an order that the appellant pay the second respondent's costs is warranted. If that is not made out, it would not be just, quick and cheap to seek further submissions from the parties, as there could be no detriment to the appellant and no advantage to the second respondent in us proceeding to take submissions on this issue.

Power to award costs

1. Section 60(1) of the NCAT Act creates the general rule that each party to proceedings of this nature is to pay their own costs. We may only order costs "if satisfied that there are special circumstances warranting an award of costs": s 60(2). Section 60(3) sets out a non-exhaustive list of factors that we may consider in deciding whether there are special circumstances warranting an award of costs, 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 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.
3. Even if the second respondent establishes that special circumstances exist, we still need to consider whether they warrant an award of costs, such that we should exercise our discretion to make an order and determine what order to make: Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [21], [24].
4. 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: 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].

Consideration

1. Here, the appellant's Notice of Appeal raised what could be considered to be arguable grounds. He alleged that the Tribunal ignored relevant evidence and failed to consider issues that were relevant to its determination.
2. Of course, as it transpired, those allegations were totally unsupported by any further material filed by the appellant. That failure to make even a rudimentary attempt to substantiate the grounds of appeal, together with the appellant's still unexplained failure to appear at the hearing is enough, in our view, to demonstrate that there are some special circumstances in the relevant sense. The appellant's conduct unreasonably prolonged an unsubstantiated appeal in a way that was unsupported by fact.
3. We need to determine whether those special circumstances warrant an award of costs.
4. In our view, there are several factors which, taken together with the special circumstances, mean that an award of costs is not warranted; that we should dismiss the second respondent's application and, thereby, make no order as to costs.
5. Firstly, the issue raised in the costs guideline promulgated by the Guardianship Division, wherein it is noted that "the protective jurisdiction exercised by the Guardianship Division of the Tribunal means that people should not be discouraged from bringing well-motivated applications to the Tribunal for fear of a costs order being made against them" should, in our view, also be considered in appeals from that Division.
6. The issues in such an appeal are still viewed through the lens of the interests of the person about whom the application was brought below as being paramount: P v NSW Trustee and Guardian [2015] NSWSC 579 at [191]. We acknowledge, however, that this consideration may carry less weight in the context of an application for costs of an appeal. This is because the parties have already had the benefit of a decision by "a tribunal to which the legislature has committed the primary working out of the [Guardianship Act 1987 (NSW)]…", "…whose decisions are to be given great weight" (K v K [2000] NSWSC 1052 at [14]) and which exercises "a specialist jurisdiction designed to bear the burden of routine cases": P v NSW Trustee and Guardian, ibid.
7. Secondly, the second respondent did not seek leave to be represented in the appeal. Whilst we reject the appellant's bare assertion that he may have conducted the appeal differently if he had been aware that the second respondent was seeking legal assistance, the absence of leave, where it is required, is relevant in a costs application, albeit not determinative. In those circumstances, the Tribunal has little capacity to ensure that the proceedings are conducted in a way that is not only just and quick, but also cheap, as required by s 36(1) of the NCAT Act. It also bears on the Tribunal's ability to ensure proceedings are conducted in a way which resolves "… the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings" (NCAT Act, s 36(4) and The Civil and Administrative Tribunal Rules 2014 ("NCAT Rules"), r 32(b)) and to have oversight of the cost of such representation: NCAT Rules, r 33.
8. Lastly, the costs claimed by the second respondent largely relate to issues subsequent to the conclusion of the appeal, and did not lead to the filing of material in the appeal which assisted us in our determination of the substantive issues.
9. On that basis, we are not satisfied that the special circumstances which have been demonstrated warrant an award to the second respondent of his costs from the appellant.

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: 10 March 2021