Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DYH v Public Guardian (No 3) [2022] NSWCATAP 34 Hearing dates: 10 September 2021 Date of orders: 09 February 2022 Decision date: 09 February 2022 Jurisdiction: Appeal Panel Before: I Coleman SC ADCJ, Principal Member Dr J Lucy, Senior Member Decision: (1) A hearing of the respondent's costs application is dispensed with. (2) The respondent's costs application is dismissed. Catchwords: COSTS – Whether there are special circumstances warranting an award of costs – Whether appeal was frivolous or vexatious or otherwise misconceived or lacking in substance – Whether appellants' claims had no tenable basis in fact or law – Relevance of Tribunal's objects to discretion to award costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Victorian Civil and Administrative Tribunal Act 1998 (Vic) Cases Cited: Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 Choi v University of Technology Sydney [2020] NSWCATAP 18 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691 DYH v Public Guardian (No 2) [2021] NSWCATAP 400 Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441 Category: Principal judgment Parties: DYH (First Appellant) EIV (Second Appellant) ENC (Third Appellant) Public Guardian (Respondent) Representation: Counsel: M Higgins (Respondent) Solicitors: DYH (self-represented and representing other appellants) Crown Solicitor (Respondent) File Number(s): 2021/178829 Publication restriction: The disclosure of the names of PQX, DYH, EIV, ENC and the relatives of PQX, referred to in DYH v Public Guardian (No 2) [2021] NSWCATAP 400, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: DYH v Public Guardian [2021] NSWCATAD 136 Date of Decision: 24 May 2021 Before: JS Currie, Senior Member File Number(s): 2020/00341901; 2021/00011720 REASONS FOR DECISION 1. The Public Guardian applies for the costs of an appeal, on the basis that there are special circumstances warranting an award of costs. The Public Guardian contends that the appellants made claims with no tenable basis, commenced appeal proceedings that were misconceived and filed large volumes of submissions and evidence. 2. The appellants are relatives of an elderly woman with dementia, who applied to the Tribunal for an administrative review of two decisions of the Public Guardian concerning the woman's accommodation. They were unsuccessful in their application for administrative review, and also unsuccessful in their application for leave to appeal from the Tribunal's decision on review. 3. For the reasons which follow, we have dismissed the respondent's application for costs. Whilst we consider that the appellants' case on appeal was weak, there were no special circumstances warranting an award of costs. Decision on the papers 1. A hearing is generally required for proceedings in the Tribunal (Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 50(1)). However, the Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (NCAT Act, s 50(2)). 2. When we published our decision on the appeal (DYH v Public Guardian (No 2) [2021] NSWCATAP 400 ("the Decision"), we directed the parties to address, in any submissions on costs, whether we should dispense with a hearing of the costs application. The Public Guardian submitted that it was appropriate for the Appeal Panel to decide her application for the costs of the appeal on the papers. The appellants stated in their submissions that they did not oppose the issue of costs being determined on the papers. 3. We consider that the issues for determination on the respondent's costs application can be adequately determined in the absence of the parties by considering the parties' written submissions and other documents lodged by the parties with the Tribunal. This way of determining the application is best suited to facilitate the just, quick and cheap resolution of the real issues in the proceedings, insofar as those issues relate to costs (NCAT Act, s 36(1)). Accordingly, we have made an order dispensing with a hearing of the costs application. Public Guardian's costs application 1. As indicated above, the Public Guardian applied for her costs under s 60(2) of the NCAT Act, contending that there are special circumstances warranting an award of costs. She sought her costs, other than in relation to a largely unsuccessful application made by her for non-publication and non-disclosure orders. 2. The Public Guardian sought costs in the fixed sum of $23,000. An affidavit of Lisa Lewis, solicitor, provided evidence that the costs of the Public Guardian for the appeal were $25,594.10 and stated that the Public Guardian was seeking a lesser sum. 3. The general rule in the Tribunal is that each party to proceedings is to pay the party's own costs (NCAT Act, s 60(1)). However, the Tribunal may award costs if it is satisfied that there are special circumstances warranting an award of costs (NCAT Act, s 60(2)). "Special circumstances" are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 4. The legislature has made provision for matters to which the Tribunal may have regard when determining whether there are special circumstances, in s 60(3) of the NCAT Act, which provides as follows: (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following— (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. 1. The Public Guardian relies upon s 60(3)(c)¸(e) and (g). Relative strengths of the claims made by each of the parties (s 60(3)(c)) and proceedings were frivolous and lacking in substance (s 60(3)(e)) 1. In support of her submission that the appeal was frivolous, manifestly groundless or lacking in substance, the Public Guardian relied upon our observation, at [52] of the Decision: "The appellants appeared to hold the erroneous view that the Appeal Panel is a general review body which, like the Tribunal, makes the correct and preferable decision on the evidence before it at the time of its decision. The appellants were not always focused upon identifying error in the Tribunal's decision-making." 1. The Public Guardian also relied upon our refusal to grant the appellants leave to appeal. She pointed to our comments that we were not persuaded that the Tribunal's decision was against the weight of evidence and that we did not consider that the appellants had demonstrated that there was an injustice which is reasonably clear, in the sense of going beyond merely what is arguable (Decision at [68]). 2. The Public Guardian also pointed to our decision not to admit the fresh evidence sought to be adduced by the appellants, and the appellants' failure to identify any error in the Tribunal's decision-making (Decision at [78]-[81]). 3. It could not be said that the appellants' case was strong. When considering the "relative strengths of the claims made by each of the parties" (for the purposes of s 60(3)(c) of the NCAT Act), there is no doubt, as the outcome of the appeal demonstrates, that the respondent's claims on substantive issues were stronger than those made by the appellants. 4. The appellants submitted that respondent's application for non-publication and non-disclosure orders was frivolous and vexatious and that this was relevant when assessing the relative strengths of the parties' claims. In our view, this application made by the respondent was largely misconceived. That is because it was premised upon the assumption that the Tribunal could make non-disclosure orders which do not relate to the proceedings. The relief sought was beyond the Tribunal's jurisdiction and lacking any basis in law. We agree with the appellants that that is a relevant factor when considering the relative strengths of the parties' claims, although we have given more weight to the relative strengths of their claims relating to the substantive issues in the appeal. 5. The power to award costs in s 60 of the NCAT Act is to be understood in the context of the Act as a whole. One of the objects of the NCAT Act is "to ensure that the Tribunal is accessible and responsive to the needs of all of its users" (NCAT Act, s 3). A large proportion of its users are not legally trained and the general rule (which is modified for the Administrative and Equal Opportunity Division) is that a party has the carriage of the party's own case and is not entitled to be represented by any person, unless the Tribunal grants leave (NCAT Act, s 45(1); Sch 3, cl 9). The Tribunal is also obliged to ensure that the parties understand the nature of the proceedings and, if requested to do so, explain procedural matters to the parties (NCAT Act, s 38(5)). 6. The general rule set out in s 60(1) of the NCAT Act, that each party pay the party's own costs, was "designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable" (Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41], citing Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441 at [13]). The concern with access to justice, evinced in s 60(1), indicates that the Tribunal should not award costs too readily on the basis that one party's claim was stronger than the other party's claim (see NCAT Act, s 60(3)(c)). The relative strengths of the parties' claims is one factor to be taken into account, but a finding that a party's claim is weak does not necessarily mean that there are special circumstances warranting an award of costs (see Choi v University of Technology Sydney [2020] NSWCATAP 18 at [45]). 7. In this context, we consider that the power to award costs is to be exercised with some tolerance for self-represented litigants who do not understand legal concepts. That includes a lack of understanding of the rules governing the admission of fresh evidence and the question of what constitutes error for the purposes of an appeal. That approach is consistent with the principle that the discretion to award costs is to be exercised judicially "having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs" (Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 at [8]). 8. The Victorian case law considering an equivalent provision to s 60(3)(c) of the NCAT Act provides some helpful analysis. The Victorian Civil and Administrative Tribunal may also award costs if fair to do so having regard to "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" (Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act"), s 103(3)(c)). The meaning and operation of s 103(3)(c) of the VCAT Act were considered by Senior Member Byard in Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691. He said at [14]-[15]: The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a "tenable basis in law or fact" is a consideration included within the consideration of the relative strengths of the claims of the parties. This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party's claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to "costs following the event". It would compromise the general rule created in s 109(1). 1. The Senior Member also commented (at [19]) that "'untenable' in the context of s 109(3)(c) means something like so weak as to be unarguable, rather than merely weak." 2. In our view, the Senior Member's observations apply with equal force to s 60(3)(c) of the NCAT Act. The appellants' position was not so weak as to be unarguable and we do not consider it to have lacked a tenable basis in fact or law. 3. There is no doubt that the appellants had a genuine grievance. The Public Guardian's decision restricted the circumstances in which the first appellant could see her elderly mother. That had a significant impact upon the first appellant. There was evidence indicating that there was conflict between the first appellant and her siblings, and the appellant suggested that the Public Guardian had been unduly influenced by them in her understanding of her mother's needs and wishes. The first appellant's proposal that her mother be placed in a care facility for a period of time, so that all family members could visit her, was not unreasonable. The appellants also put forward some evidence that the Public Guardian had done nothing to implement the accommodation decision which had been made, nearly a year later (although the Tribunal has not made any decision as to whether that was the case). Although there was no error in the Tribunal affirming the Public Guardian's decision, the appellant's case before the Tribunal was not entirely without merit. 4. Nor do we consider that the appeal was frivolous or vexatious or otherwise misconceived or lacking in substance (NCAT Act, s 60(3)(e)). When proceedings are manifestly groundless or untenable their maintenance may be frivolous or vexatious (Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [119]). The words "frivolous" and "vexatious," used together, may signify that the application lacks a legal foundation or that it is "not legally properly based" (Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 at [26], [28]). We consider that the appeal, although weak, was not manifestly groundless or untenable. As the appellants sought to appeal on grounds which did not raise a question of law, it could not be said that the appeal lacked a legal foundation. It was simply that the appellants did not persuade us that the Tribunal's decision was against the weight of evidence. Other relevant matters (s 60(3)(g)) 1. The Public Guardian also relied upon the large volume of material filed by the appellants as a relevant matter to the costs discretion, as it required her to incur additional expense in order to respond adequately to the appeal. Whilst the appellants did file a significant amount of material, we do not consider that this constitutes a special circumstance warranting an award of costs. 2. The Public Guardian has not submitted, or demonstrated, that the material filed by the appellants was irrelevant. Whilst the appellants' submissions were not concise, and at times reflected a lack of understanding of the relevant legal principles, they engaged with relevant issues. For example, the appellants submitted that they should be granted leave to appeal on grounds other than a question of law and relied upon what they said was an issue of public importance (being the isolation of the first appellant's mother). The appellants also submitted, in respect of the accommodation decisions made by the Public Guardian, that the Tribunal had failed to take into account principles in s 4 of the Guardianship Act 1987 (NSW), such as the importance of preserving family relationships. In circumstances where the appellants raised relevant matters in their written submissions, the length of the material does not, of itself, constitute a special circumstance warranting an award of costs. 3. If we are wrong and it does, we would not exercise our discretion to award costs on this basis. Conclusion 1. For these reasons, we are not satisfied that there are special circumstances warranting an award of costs. Accordingly, we have decided to dismiss the respondent's costs application. Orders 1. We make the following orders: 1. A hearing of the respondent's costs application is dispensed with. 2. The respondent's costs application is 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: 09 February 2022