Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZXJ v ZXK [2022] NSWCATAP 371 Hearing dates: 25 August 2022 Date of orders: 28 November 2022 Decision date: 28 November 2022 Jurisdiction: Appeal Panel Before: A Britton, Deputy President A Boxall, Senior Member M Bolt, General Member Decision: (1) The appeal is allowed in part. (2) The decision under appeal is set aside. (3) In substitution for that decision the appellant is awarded the costs thrown away up until 16 September 2021, in preparing to address issues other than the capacity of the appellant to manage her financial affairs. (4) The appellant and the first and second respondents must use their best endeavours to reach agreement on the amount of costs payable by the Daughters. (5) If agreement is not reached by 11 December 2022, the appellant must file and serve brief submissions setting out the amount claimed and submissions in support of that claim. (6) By 22 December 2022, the first and second respondents must file and serve brief submissions in reply. (7) By 23 December 2022, the appellant and the first and second respondents must notify the Tribunal, and each other, whether the issue of the orders to be made under s 60(4) of the NCAT Act can adequately be determined, without a hearing, by considering the parties' written submissions as permitted by s 50 of the NCAT Act. Catchwords: APPEALS – appeal from decision of the Guardianship Division of NCAT to refuse to award costs COSTS – meaning of "special circumstances" in s 60 Civil and Administrative Tribunal Act 2013 (NSW) – no mandatory considerations – whether Tribunal failed to have regard to a "substantial, clearly articulated argument" Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Cases Cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; 77 ALJR 1088 Gelder v The Owners - Strata Plan No 38308 [2021] NSWCATAP 109 House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 Kaye v The Owners – Strata Plan No 4350 NSWSC 1386 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 OLL [2014] NSWCATGD 40 Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 Texts Cited: None cited Category: Principal judgment Parties: ZXJ (Appellant) ZXK (First Respondent) ZXL (Second Respondent) ZXO (Third Respondent) NSW Trustee and Guardian (Fourth Respondent) Representation: Counsel Mr L Ellison SC, Mr W Wilcher Mr M Hogg (First, Second Respondents) Solicitors Manning Lawyers (Appellant) Eden York Lawyers (First and Second Respondents) File Number(s): 2022/00009335 Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of any of the parties or other people referred to in this decision including the publication of any information, picture or other material that identifies them, or is likely to lead to their identification, is prohibited. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 21 October 2021 Before: S McCarthy, Senior Member Dr M Clayton, Senior Member R Fela, General Member File Number(s): 2020/00297347 REASONS FOR DECISION 1. Seventy-nine-year-old ZXJ appeals from the decision of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to refuse to grant her application for costs in proceedings commenced by her two daughters in NCAT (the NCAT proceedings). 2. The Tribunal dismissed those proceedings. A factual issue central to those proceedings was ZXJ's capacity to manage her financial affairs. 3. ZXJ contends that in refusing to exercise the power to award costs, the Tribunal failed to have regard to her daughters' "self-interest" in commencing the NCAT proceedings in circumstances where, had they been successful, ZXJ may have been prevented from continuing to prosecute proceedings in the NSW Supreme Court relating to, among other things, the will purportedly made by her late husband in 2017. 4. For the reasons that follow we allow the appeal in part. Publication of names of people involved in the appeal 1. The publication or broadcast of the name of any person mentioned or otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 65(1)(a) and 65(2). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: NCAT Act, s 65(3). Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name. 2. In this appeal, the Registrar assigned the following pseudonyms to the parties: 1. "ZXJ", the appellant and the person the subject of the three applications the subject of the NCAT proceedings 2. "ZXK", one of ZXJ's two daughters who applied to NCAT for a financial management order in respect of the appellant 3. "ZXL", the appellant's other daughter who applied to NCAT seeking review of the revocation and making by the appellant enduring powers of attorney (EPoA) 4. "ZXQ", the appellant's son, whom the appellant appointed as her attorney in 2019. 1. For ease of reading, in these reasons we will refer to ZWJ as "the appellant", ZXK as "Daughter 1", ZXL as "Daughter 2" (together, "the Daughters") and ZXQ as "the Son". The NCAT proceedings 1. Following a hearing on 17 September 2021, the Tribunal dismissed: 1. the application made by Daughter 1 seeking a financial management order in respect of the appellant 2. the application made by Daughter 2 seeking review of the revocation by the appellant in 2017 of the enduring power of attorney she made in 2004 (the 2004 EPoA) 3. the application made by Daughter 2 seeking review of the making by the appellant in 2019 of an enduring power of attorney (the 2019 EPoA). 1. On 3 November 2022, the Tribunal gave written reasons for that decision: Reasons for Substantive Decision, S McCarthy, M Clayton, R Fela, 3 November 2022 (unreported) (the Substantive Decision). None of the parties appealed that decision. Tribunal dismisses application for a financial management order 1. The Guardianship Act 1987 (NSW) permits the Tribunal to make a financial management order "only if the Tribunal has considered the person's capability to manage his or her own affairs" and is satisfied, among other things, that "the person is not capable of managing those affairs": s 25F(a). 2. In the initiating application, Daughter 1 stated that she was asking NCAT to make a financial management order in respect of the appellant because she held concerns that the appellant is "lacking capacity and is quite vulnerable, [which] could lead to possible exploitation". In that application, Daughter 1 proposed that she be appointed as her mother's financial manager. At the hearing, Daughter 1 withdrew that nomination, proposing instead that the appellant's estate be subject to the management of the NSW Trustee and Guardian. 3. In separate statements prepared by the Daughters and tendered in the NCAT proceedings, the Daughters stated that their mother "has been confused and scared and is controlled and manipulated by [the Son]" and that it was "a matter of particular concern" that their mother had been isolated from them: Substantive Decision at [16]. 4. At [19], the Tribunal summarised the evidence given by the appellant's general practitioner. The GP stated that in a mini-mental state examination conducted in 2020, the appellant did "exceptionally well", was "able to answer nearly everything", and scored 28/30. The GP said that "there was no need for further medical investigation or referral of [the appellant] and there was no evidence of an underlying psychiatric illness or dementia or cognitive impairment": Substantive Decision at [19]. The GP stated that there was "no manifestation of any cognitive concerns and the [appellant] has no difficulty in managing her financial affairs": Substantive Decision at [19]. The GP noted that the appellant "undertakes a medical assessment each year for her driver's licence and remains fit to drive". In the GP's opinion, the appellant is "not subject to undue influence and has the capacity to manage her financial affairs". The Tribunal noted that a report dated 3 September 2020, prepared by another GP, made no mention of the appellant being cognitively impaired: Substantive Decision at [20]. 5. The Tribunal found the evidence of the treating GP to be "reliable": Substantive Decision at [26]. Referring to the evidence given by the Daughters about the appellant's interactions with Daughter 1 and others, the Tribunal stated at [26] that this evidence, if accepted, "indicate[s] strong disagreement between the parties" but was not relevant to "the determination as to whether [the appellant] lacks the capability to manage her financial affairs". 6. The Tribunal found that the available material did not establish that the appellant was incapable of managing her financial affairs: Substantive Decision at [27]. On that basis the Tribunal dismissed the application for a financial management order. Tribunal dismisses applications for review of the revocation and making of enduring powers of attorney 1. On 19 May 2021, Daughter 2 applied to NCAT seeking review of the revocation of the 2004 EPoA and the making of the 2019 EPoA. 2. The Powers of Attorney Act 2003 (NSW) permits the Tribunal on the application of an "interested person" to decide to review the making of and the revocation of a "reviewable power of attorney" or to decide not to carry out such a review: s 36(1). 3. Section 36 of the Powers of Attorney Act sets out the orders available to the Tribunal on review of the making of a power of attorney and the revocation of a power of attorney: 36 Interested persons may apply for review … (3) Orders relating to making of power of attorney A review tribunal may make either or both of the following orders with respect to the making of a power of attorney: (a) an order declaring that the principal did or did not have mental capacity to make a valid power of attorney, (b) an order declaring that the power of attorney is invalid (either in whole or in part) if the tribunal is satisfied: (i) the principal did not have the capacity necessary to make it, or (ii) the power of attorney did not comply with the other requirements of this Act applicable to it, or (iii) the power of attorney is invalid for any other reason, for example, the principal was induced to make it by dishonesty or undue influence. (3A) Orders relating to revocation of power of attorney A review tribunal may make either or both of the following orders with respect to the revocation of a power of attorney: (a) an order declaring that the principal did or did not have mental capacity to revoke a power of attorney, (b) an order declaring that the power of attorney remains valid (either in whole or in part) if the tribunal is satisfied: (i) the principal did not have the capacity necessary to revoke it, or (ii) the revocation is invalid for any other reason, for example, the principal was induced to make the revocation by dishonesty or undue influence. 1. In 2004, the appellant appointed the Son and Daughter 1 as her attorneys under an enduring power of attorney. In July 2017, the appellant revoked those appointments. In July 2019, the appellant appointed the Son as her sole attorney under an enduring power of attorney. 2. In the Substantive Decision the Tribunal: 1. noted the claim made by Daughter 1 that for an extended period she had enjoyed a "close and continuing relationship" with the appellant which had "fractured in the last few years": at [52] 2. found that the revocation of the 2004 EPoA was valid and accorded with the appellant's "wishes, views and preferences": at [57] 3. found that on 22 July 2019 the appellant validly made an enduring power of attorney: at [44] 4. found that the appellant "continues to have a close and continuing relationship" with the Son and "does not have an ongoing close relationship" with Daughter 1: at [57] 5. noted the opinion expressed by the appellant's GP that the appellant has "capability to manage her own financial affairs": at [57] 6. observed that there was no health professional evidence to indicate that the appellant was not capable of revoking the 2004 EPoA or of making the 2019 EPoA: [42],[57]. 1. Applying those findings, the Tribunal decided to dismiss the applications for review of revocation of the 2004 EPoA and the making of the 2019 EPoA. Decision under appeal 1. In the Substantive Decision, the Tribunal directed the parties to file submissions in response to the appellant's application for costs. 2. The Tribunal decided to make that decision "on the papers" without a hearing as permitted by cl 6(2) of sch 6 of the NCAT Act. 3. On 21 October 2021, the Tribunal made orders dismissing the appellant's application for costs. On 21 February 2022, the Tribunal gave written reasons for that decision (the Costs Decision). Statutory framework: s 60 of the NCAT Act 1. Section 60 of the NCAT Act states: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (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. Section 60(1) creates the general rule that each party is to pay their own costs. Section 60(2) gives the Tribunal power to award costs upon it being "satisfied that there are special circumstances warranting an award of costs". 2. In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, the NSW Court of Appeal considered the meaning of the term "special circumstances" in s 88(1) of the now repealed Administrative Decisions Tribunal Act 1997 (NSW). While in different terms to s 60 of the NCAT Act, like that provision, s 88(1) of the Administrative Decisions Tribunal Act gave the Tribunal power to award costs "but only if it is satisfied that there are special circumstances warranting an award of costs". At [60], Santow JA held (and Mason P and Brownie AJA agreed) that the Tribunal was in error in failing to conclude that special circumstances applied in that matter. Santow JA observed: "[I]t suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional". That statement has consistently been applied by Appeal Panels of NCAT in determining application for costs under s 60 of the NCAT Act: see for example, Gelder v The Owners - Strata Plan No 38308 [2021] NSWCATAP 109 at [12]; Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107]; James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 at [6]. 3. More recently, in Kaye v The Owners – Strata Plan No 4350 NSWSC 1386 (Kaye) Basten AJ observed at [70] that the term "special circumstances" in s 60 of the NCAT Act: "[I]s not a term of art. Its scope and operation will depend heavily on the context in which it appears. A particular circumstance which appears to be special in one case may not be so in another. It is not a phrase which readily gives rise to appellate explication." Grounds of appeal 1. Being an "ancillary decision", the appellant is entitled to appeal the Costs Decision on a question of law or with the leave of the Appeal Panel: NCAT Act, s 80(2)(b). 2. The appellant contends that in declining to exercise the discretion to award costs the Tribunal made four errors of the kind contemplated in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40: 1. "failure to take into account that the first instance proceedings should not have been commenced and should not have been continued 2. failure to take into account the relevance of the concurrent Supreme Court proceedings and the self-interested nature of the Respondents' three applications 3. failure to take into account the best interests of the Appellant 4. allowing the fact of the apprehended extent of legal costs of the Appellant to affect its decision, being matters extraneous or irrelevant to whether to order costs at all; rather they are matters relevant to the extent of a costs entitlement at costs assessment". 1. In House v The King at 504-5 the High Court commented on the standard of appellate review applicable to the exercise of a judicial discretion: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." Ground 1: Failure to have regard to the consideration that "proceedings should not have been commenced and should not have been continued" 1. By Ground 1, the appellant contends that the Tribunal failed to have regard to the consideration that the "proceedings should not have been commenced and should not have been continued". Specifically, the appellant contends that the Tribunal failed to have regard to the following matters: 1. The Daughters' failure to adduce medical evidence to support their claim that the appellant lacked capacity to manage her financial affairs. The appellant argued that the Daughters proceeded on a "wing and a prayer" in the hope that evidence of the appellant's impaired capacity might emerge during the proceedings. The appellant contended that she "never had a case to answer" and that the applications brought by the Daughters were, in effect, "summarily dismissed" by the Tribunal. 2. The "inherent wastefulness" of the NCAT proceedings in circumstances where the issue of the appellant's capacity was being agitated in concurrent proceedings brought by the appellant in the NSW Supreme Court (the Supreme Court proceedings). 3. The manner in which the Daughters conducted the NCAT proceedings. The appellant contends that the Daughters failed to comply with their statutory obligation to prosecute the applications in a manner which promoted the just, quick and cheap resolution of the real issues raised in the proceedings: NCAT Act, s 36(3). That failure, contends the appellant, was evidenced by the Daughters' failure, until the eve of the hearing, to announce their decision to request the Tribunal to confine, at least initially, the scope of issues to be determined to the appellant's decision-making capacity. As a consequence, she incurred significant and unnecessary costs. Before that decision was made, the appellant's legal representatives had no option but to review and to prepare to meet the multiple issues raised in the voluminous material filed by the Daughters. The appellant argues that the Tribunal failed to consider that submission. 1. In support of the proposition that the NCAT proceedings "should not have been commenced and continued", the appellant points to OLL [2014] NSWCATGD 40, a decision of the Guardianship Division of NCAT in which the applicant was ordered to pay the costs of the other parties. 2. In OLL, the applicant applied to NCAT seeking review of the operation and effect of an enduring power of attorney made by OLL, alleging that the attorney appointed under that instrument, among other things, had subjected OLL to financial abuse. The Tribunal dismissed that application. At [80], the Tribunal observed that while its jurisdiction is protective, an applicant must nonetheless "bring credible evidence to the Tribunal to support his or her application". The Tribunal stated that it is not sufficient to "raise unsubstantiated allegations and demand that they be answered by the other parties". At [101], the Tribunal found that the proceedings were not "reasonably commenced" because the applicant's claims had no tenable basis in fact or law, were frivolous, vexatious, otherwise misconceived or lacking in substance. The Tribunal concluded at [103] that special circumstances were established: "Fortunately, it is rare that an applicant comes to the Tribunal with applications so lacking in substance, in the context of intrusive and intimidating behaviour towards the person concerned and his or her family. This is extreme behaviour in these circumstances, which takes 'the matter out of the ordinary course of events' and suggests 'factors which extend beyond those reasonably connected with the usual or ordinary pursuit of a claim'. Applications of this sort, which are far from being well-motivated and substantial, are to be discouraged." (citations omitted) Consideration 1. We do not understand the appellant to assert that the three matters listed at [32] were "mandatory considerations" in the sense used by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. As Basten AJ explained in Kaye, in exercising the discretion to award or to decline to award costs under s 60 of the NCAT Act, there are no matters the Tribunal is bound to consider. Rather, we understand the appellant to assert that the Tribunal denied her procedural fairness by failing to consider a "substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; 77 ALJR 1088 (Dranichnikov) at [24]. 2. The appellant addressed the matters listed at [32] in submissions in support of her application for costs dated 3 September 2021 and 29 September 2021. 3. In addition, the appellant made detailed submissions about two of those matters — the Daughters' failure to provide medical evidence and the alleged wastefulness of the NCAT proceedings — in earlier submissions challenging Daughter 1's standing to bring the application for a financial management order and seeking the dismissal of that application (see, "Respondent's submissions in reply-application concerning [the appellant]" — Applicant's standing", 27 April 2021). In those submissions, the appellant urged the Tribunal to dismiss the NCAT proceedings on the grounds that they were "frivolous or vexatious or otherwise misconceived or lacking in substance". The appellant asserted that in making the application for a financial management order, Daughter 1 was not motivated by a genuine concern for her welfare but rather her interest in the Supreme Court proceedings. In addition, the appellant pointed to the failure of Daughter 1 to provide medical evidence in support of the assertion that her decision-making capacity was impaired. The appellant's submissions in support of Ground 1 largely repeat those submissions. 4. As noted, the Tribunal declined to exercise the power to dismiss the NCAT proceedings on the ground that the Daughters lacked standing to bring their respective applications. At [9] and [39] of the Substantive Decision, the Tribunal concluded that in bringing those applications each daughter "has a genuine concern for the welfare of [the appellant]". 5. With respect to the Daughters' failure to adduce medical evidence in support of their claim that the appellant's capacity was impaired, the Tribunal addressed that issue in both the Substantive Decision and the Costs Decision. In the latter, at [26], the Tribunal stated that while it is "usual practice that an Applicant provide health professional report(s)", there is no statutory requirement that they do so. 6. At [26] of the Costs Decision, the Tribunal found that the "allegations that [the appellant] was incapable of managing her financial affairs were not substantiated" but went on to state: "The Tribunal did not consider that the proceedings were frivolous, vexatious or otherwise misconceived or lacking in substance." 1. The argument that the Tribunal failed to have regard to the appellant's submission that the Daughters' failure to adduce medical evidence amounted to special circumstances warranting an award of costs does not withstand scrutiny. The Tribunal considered and rejected that argument. In substance, this part of Ground 1 is an expression of disagreement with a conclusion reached by the Tribunal. 2. The submission by the appellant that OLL is authority for the proposition that special circumstances will be established where an applicant fails to bring medical evidence to support a claim that the person the subject of the application lacks decision-making capacity is rejected. Whether such failure will support a finding of special circumstances will depend on the facts of the particular case. We do not read OLL to suggest otherwise. 3. The contention that the Tribunal failed to have regard to the submission that the Daughters' conduct of the proceedings caused the appellant to incur unnecessary costs raises different considerations. The Tribunal discussed the Daughters' conduct of the proceedings at [27]: "[27] The Applicants did not meet the timetable for documents as set out at the Directions Hearings which delayed the proceedings. They subsequently complied with the submission of material prior to the substantive hearing date. This delay disadvantaged [the appellant] in the proceedings. This delay is to be balanced against the approach taken by the Applicants at the hearing where they confined the hearing, in its initial stages, as to whether or not [the appellant] lacked the capability to manage her financial affairs. [The appellant] had lodged very lengthy submissions which if responded to in full by the Applicants would have resulted in the hearing taking at least one full day of hearing time and potentially more. The approach taken by the Applicants was appropriate and reduced the hearing time of the proceedings. Further, while there were concurrent Supreme Court proceedings they dealt with claims beyond the matters in the Tribunal proceedings." 1. In submissions dated 3 September 2021, the appellant pointed to several examples of the Daughters' conduct said to demonstrate that the Daughters caused the time taken to complete the proceedings to be prolonged. In submissions dated 29 September 2021, the appellant focussed on a particular aspect of the Daughters' conduct, namely the "filing and serving (belatedly) an enormous amount of irrelevant and inadmissible material that was ultimately abandoned in the final hearing on 17 September 2021". The appellant pointed out that despite the Tribunal identifying as early as 8 December 2020 that the real issue in the proceedings was the capacity of the appellant to manage her financial affairs, it was not until the eve of the hearing, 16 September 2021 that the Daughters announced their decision to restrict their case, at least initially, to that issue. The appellant said that, as a consequence, the costs she incurred "increased exponentially" as she was put to the expense of having her legal advisers review "hundreds of pages of documents not relied upon ultimately". The appellant contended that had the Daughters' solicitor complied with their obligation to promote the just, quick and cheap resolution of the real issue in the proceedings (NCAT Act, s 36(3)(b)), she would have been spared those unnecessary costs. 2. It cannot be said that the Tribunal ignored all aspects of the appellant's submission concerning the Daughters' conduct of the proceedings. At [27], reproduced at [43] above, the Tribunal stated that the Daughters' repeated failure to comply with its timetable disadvantaged the appellant. In the same paragraph, referring to the Daughters' decision initially to confine the hearing to the issue of whether the appellant lacked capacity to manage her affairs, the Tribunal stated that this action was "appropriate and reduced the hearing time of the proceedings". However, the Tribunal made no mention of the appellant's argument that, as a consequence of that decision being made on the eve of the hearing, her legal representatives had been obliged to review and be prepared to meet an "enormous amount" of material that ultimately was not relied upon (the subject submission). 3. The Tribunal's failure to mention the subject submission raises two questions: 1. whether the inference can be drawn from that failure that the Tribunal failed to consider the subject submission, and 2. if so, whether the subject submission was a substantial submission, squarely raised and seriously advanced. 1. A failure to refer to a particular issue or submission in reasons for decision does not necessarily mean that the decision-maker failed to consider that issue or submission. However, here we are satisfied that that inference can be drawn having regard to the reasons read as whole, together with the narrow basis on which the Tribunal considered the decision taken by the Daughters, namely its impact on the length of the hearing, and the omission of any reference to the subject submission, that had that decision been taken earlier, the appellant would have been spared unnecessary costs. 2. As explained by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46],[47], the Tribunal was not obliged to deal with every piece of evidence and every contention made by the appellant in support of her application for costs. The Tribunal was not obliged, for example, to consider submissions that were misconceived or where it had rejected the factual premise upon which the submission was based. The subject submission could not be characterised as either. The submission was a substantial, clearly articulated argument relying upon established facts and one the Tribunal was obliged to consider. 3. Ground 1 is made out in part. Ground 2: having regard to an irrelevant consideration 1. By Ground 2 the appellant contends that the Tribunal erred in the exercise of its discretion to award or to decline to award costs by having regard to the quantum of the legal costs she incurred. The appellant contends that the issue of quantum is relevant only if, having exercised the discretion to award costs, the Tribunal proceeds to consider as permitted by s 60(4) of the NCAT Act, the subsequent question of the extent of costs to be paid. 2. Section 60(4) states: 60 Costs … (4) If costs are to be awarded by the Tribunal, the Tribunal may— (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. Consideration 1. At [24] of the Costs Decision the Tribunal stated: "[T]he case and factual matrix of the proceedings was not complex or complicated. There were no complex questions of law or procedure. It did not require the engagement of senior counsel." 1. The above passage appears to be a response to the Daughters' submissions, dated 24 September 2021, which described the legal resources deployed by the appellant as "staggering" and asserted that there was "nothing inherently complex in the matter". 2. In Kaye at [68], Basten AJ explained that the factors listed in s 60(2) of the NCAT Act as matters to which the Tribunal may have regard in determining whether there are special circumstances are "not restrictive" and conclude with a reference to "any other matter that the Tribunal considers relevant: s 60(3)(g)". At [71] Basten AJ stated that "no matters are expressly excluded" from those matters that the Tribunal may have regard to in deciding whether it is satisfied of the existence of special circumstances and: "[W]hile that does not mean that there are no legal limits on that to which the appeal panel may have regard, those limits will only be implied by reference to the scope and purpose of the power." 1. There is nothing to suggest from the text, context and purpose of s 60 of the NCAT Act that, in the exercise of the discretion to award, or to decline to award costs, the Tribunal was prohibited from considering whether, given the complexity of questions of fact and law raised in the NCAT proceedings, the engagement of Senior Counsel was required. While those matters might be relevant to the exercise of the discretion under s 60(4) of the NCAT Act, it does not follow that the Tribunal was prohibited from having regard to them in the exercise of the discretion to award costs. 2. This ground must be rejected. Ground 3: failing to have regard to the relevance of the Supreme Court proceedings and the self-interested nature of the Daughters' applications 1. By Ground 3, the appellant contends that the Tribunal failed to have regard to her argument that the Daughters brought the NCAT proceedings for a collateral purpose, entirely unrelated to her welfare, namely their interest in the Supreme Court proceedings. 2. The appellant argues that it was not a coincidence that Daughter 1 lodged the financial management application five days after the appellant filed in the Supreme Court a caveat against a grant of probate over the estate of the appellant's late husband. The appellant contended that the Daughters stood to gain financially from a revised will made by her late husband in 2017. The appellant contends that had the Daughters been successful in the NCAT proceedings, she may have been prevented from prosecuting the Supreme Court proceedings and, in addition, from pursuing claims for recovery of rental income from properties controlled by Daughter 1 of which she was a half owner. Consideration 1. To put the argument about the Tribunal's purported failure to consider the relevance of the Supreme Court proceedings in context, it is necessary to consider the history of the NCAT proceedings. 2. In the early stages of the NCAT proceedings, the appellant urged the Tribunal to exercise the power to summarily dismiss those proceedings on the ground that Daughter 1 lacked standing to bring the application for a financial management order. In support of that application, the appellant contended that the Supreme Court proceedings and the NCAT proceedings were interrelated. In commencing proceedings in NCAT, Daughter 1 was motivated by her own interests in the Supreme Court proceedings and not by concern for the appellant: see appellant's submissions, 27 April 2021, [25]-[54]. 3. The Tribunal declined to grant that application and, on 2 July 2021, listed for hearing the application for a financial management order together with the review applications lodged by Daughter 2 on May 2021. 4. In detailed submissions dated 3 September 2021, the appellant repeated the submissions made on 27 April 2021 that, in bringing the application for a financial management order, Daughter 1 was motivated by self-interest. The appellant made much the same submission about the motivation of Daughter 2 in bringing applications for review of the revocation of the 2004 EPoA, and the making of the 2019 EPoA. 5. While the Tribunal ultimately dismissed each application, it found that each Daughter had "a genuine concern for the welfare" of the appellant: Substantive Decision at [9], [39]. The Tribunal did not give detailed reasons for that finding. However, given that the central argument advanced by the appellant in support of the contention that the Daughters lacked a genuine concern for her welfare was their interest in the Supreme Court proceedings, it must be inferred that the Tribunal rejected that argument. 6. Having rejected the premise upon which the contention that the Daughters lacked a genuine concern for the welfare of the appellant rested, it was unnecessary for the Tribunal to return to reconsider that contention in the context of deciding whether special circumstances existed warranting an order for costs. 7. This ground of appeal must be rejected. Ground 4: unreasonable or plainly unjust outcome 1. The appellant contends that the Tribunal's decision to decline to award costs has led to an outcome which is "unreasonable and plainly unjust", being that the appellant has been burdened with significant costs in proceedings initiated by the failed applications made by the Daughters. The appellant contends that outcome is unreasonable or unjust in circumstances where the Tribunal owed a duty to give paramount consideration to her interests as the person "in need of protection" for the purpose of the Guardianship Act. The appellant contends that this obligation required the Tribunal to make orders compensating the appellant for incurring costs as a result of the Daughters' unmeritorious applications. 2. The appellant repeats the submission made in respect to Grounds 1 and 3, that the Daughters stood to gain by the NCAT proceedings and in bringing those proceedings, were self-interested. Consideration 1. In substance, this ground is a reformulation of Ground 3, namely that in making their respective applications to NCAT the Daughters were motivated by self-interest. As discussed above, the Tribunal rejected that premise. It follows that the contention that the decision was unreasonable and plainly unjust, on the basis stated by the appellant, cannot be accepted. 2. The appellant is correct in stating that when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act which include that the welfare and interests of "persons who have disabilities" is the paramount consideration: cl 5(1) of Sch 6 to the NCAT Act. "Division functions" is defined to include any function conferred on the Tribunal by the NCAT Act in connection with the conduct of proceedings and includes the making of an order awarding costs of proceedings: cl 1 Sch 6 to the NCAT Act. 3. But if it is suggested by the appellant that cl 5(1) of Sch 6 to the NCAT Act compels the Tribunal to award costs on the application of a person who is the subject of an unsuccessful application to NCAT, we cannot agree. Neither the text, context and purpose of s 60 of the NCAT supports that proposition. 4. For completeness, we note that the appellant contended, and the Tribunal implicitly found, that the appellant was not a "person who has a disability" for the purposes of s 3(2) of the NCAT Act. While not necessary to come to a concluded view, arguably, in those circumstances the requirement to observe the duty imposed by s 4 of the Guardianship Act did not arise. 5. This ground of appeal is rejected. Disposition 1. As permitted by s 80(1) of the NCAT Act, we decided to allow the appeal, and if warranted, to set aside the decision under appeal and to make another decision in substitution for that decision: NCAT Act, s 81(1). 2. We decided not to reconsider the application for costs afresh but to restrict our consideration to the question of whether the Daughter' conduct, specifically the conduct we found the Tribunal failed to consider, can be characterised as "special circumstances warranting an order of costs". We decided not to request the Tribunal to undertake that task, as permitted by s 81(1)(e) of the NCAT Act, because the parties addressed that issue in the appeal and to request the Tribunal to reconsider that issue is likely to have further delayed the finalisation of the costs application. Special circumstances? 1. We are satisfied that the Daughters' actions in delaying to the eve of the hearing, announcing their decision to request the Tribunal to initially determine the question of the appellant's capacity to manage her financial affairs, amounts to special circumstances warranting an award of costs. In reaching that conclusion, we consider it significant that some nine months earlier the Tribunal put the Daughters on notice of its view that the real issue in the proceedings was the capacity of the appellant to manage her financial affairs. In the intervening period, the Daughters filed significant amounts of material largely irrelevant to that question. In those circumstances, it was not unreasonable for the appellant to prepare her case on the basis that she would be required to address those issues or at least those relevant to the applications before the Tribunal. 2. Regrettably, in the Guardianship Division of NCAT, the practice of parties, including represented parties, prosecuting issues and filing material largely irrelevant to the real issues in the proceedings is not unusual. However, here because of the factors described above, we are satisfied that the circumstances can properly be described as being out of the ordinary. Amount of costs 1. We have decided to order that the Daughters pay to the appellant the costs thrown away up until 16 September 2021, in preparing to address issues raised by the Daughters unrelated to the appellant's capacity to manage her financial affairs. 2. At the hearing of the appeal, we raised with the parties the options for determining the form of order under s 60(4) of the NCAT Act if the appeal was allowed. All parties said that they would welcome the opportunity to endeavour to reach agreement. To assist the parties to reach agreement, we indicate our preliminary view that in the circumstances of the matter, it is appropriate to order costs in a fixed sum and the amount sought by the appellant of $85,000 is excessive. Orders 1. The appeal is allowed in part. 2. The decision under appeal is set aside. 3. In substitution for that decision the appellant is awarded the costs thrown away up until 16 September 2021, in preparing to address issues other than the capacity of the appellant to manage her financial affairs. 4. The appellant and the first and second respondents must use their best endeavours to reach agreement on the amount of costs payable by the Daughters. 5. If agreement is not reached by 11 December 2022, the appellant must file and serve brief submissions setting out the amount claimed and submissions in support of that claim. 6. By 22 December 2022, the first and second respondents must file and serve brief submissions in reply. 7. By 23 December 2022, the appellant and the first and second respondents must notify the Tribunal, and each other, whether the issue of the orders to be made under s 60(4) of the NCAT Act can adequately be determined, without a hearing, by considering the parties' written submissions as permitted by s 50 of the NCAT Act. ********** 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 November 2022