NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KHT [2023] NSWCATGD 4 Hearing dates: On the papers Date of orders: 11 April 2023 Decision date: 11 April 2023 Jurisdiction: Guardianship Division Before: AR Boxall, Senior Member (Legal) Decision: The application for costs is dismissed. Catchwords: COSTS – application for costs in Guardianship Division proceedings – ancillary decision – discretion to dispense with a hearing – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether there are "special circumstances" to warrant a costs order – protective jurisdiction – no special circumstances – application dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4(1), 16, 17, 17(3), 27, 27(1), 36, 36(3), 38(2), 45(1), 45(3), 50, 50(1)(a)-(d), 60, 60(1)-(3), 60(2), 60(3)(a)-(d), 60(3)(f)-(g), Sch 6, cls 1(1), 3(1), 4 Civil and Administrative Tribunal Rules 2014 (NSW), rr 36A, 36A(a) Guardianship Act 1987 (NSW), s 4 Cases Cited: P v D1 & Ors [2011] NSWSC 257 Sullivan v Civil Aviation Authority [2014] FCAFC 93 Texts Cited: Justice Geoff Lindsay, 'Financial Management and Remuneration' (Seminar Paper, NSW Civil & Administrative Tribunal (Guardianship Division), Tribunal Members' Training Seminar, 23 July 2014) Category: Costs Parties: KHT (the person) CZH (applicant) NSW Trustee and Guardian Representation: W Morrison, separate representative for KHT E Edwin, Maurice Blackburn Lawyers (for the applicant) File Number(s): 2020/00177265 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65. REASONS FOR DECISION Background 1. KHT is 84 years old and is a widow. She lives at a nursing home in Southwest Sydney, NSW. She has three children: CZH, Ms Z and Mr Y. 2. On 12 October 2021, the Tribunal received a financial management application for KHT from CZH. 3. On 23 November 2021, the Tribunal decided that: 1. CZH was allowed to be legally represented by Ms Elisha Edwin, solicitor; and 2. KHT was to be separately represented. 1. Mr Wayne Morrison, solicitor, accepted the appointment as separate representative for KHT. 2. On 1 December 2021, the Tribunal adjourned the hearing until 23 December 2021 and made certain directions concerning the service of documents. 3. At a hearing on 23 December 2021, the Tribunal: 1. found that by reason of dementia, KHT was incapable, in part at least, of managing her financial affairs; 2. determined that there was a need to appoint someone to manage her affairs, and that it was in her best interests to do so; and 3. made a financial management order for her, appointing NSW Trustee and Guardian as her financial manager. 1. At that hearing: 1. Ms Edwin, solicitor, of Maurice Blackburn Lawyers, made an application for a costs order in favour of CZH; and 2. the Tribunal made certain directions concerning the conduct of the costs application. The hearing 1. At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication.] 2. The decision in relation to costs was made on the papers, without a hearing. This is explained below. Applicable general principles 1. Section 4 of the Guardianship Act 1987 (NSW) (the Act) provides as follows: 4 General Principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. 1. Section 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides as follows: "The 'guiding principle' for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings." 1. These two sets of principles together inform the approach taken by the Tribunal in considering this application. Reasoning Procedural matters 1. The starting points for explaining both the composition of the panel for this decision and its being made without a hearing are, respectively: 1. Section 27(1) of the NCAT Act, which provides that except for certain categories of proceeding (which are not relevant for present purposes), the Tribunal is to be constituted in the case of particular proceedings by one or more Division members of the Division to which the function of dealing with the proceedings is allocated; and 2. Section 50 of the NCAT Act, which requires generally the Tribunal to conduct hearings for proceedings before it but allows the Tribunal to dispense with a hearing in certain circumstances specified in paragraphs (a), (b), (c) and (d) of s 50(1) of that Act; paragraph (d) of that Act, which allows for a hearing to be dispensed with ".. in such other circumstances as may be prescribed by the procedural rules", is particularly relevant in the present case. 1. Section 4(1) of the NCAT Act defines the procedural rules referred to in paragraph (d) of s 50(1) of that Act as including the Tribunal rules, being the rules of the Tribunal made by its Rule Committee. These are the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). 2. Rule 36A of the NCAT Rules prescribes for purposes of s 50(1)(d) of the NCAT Act the circumstances where the Tribunal may dispense with a hearing as including, in the case of an interlocutory or ancillary decision, where "the parties consent to the making of the decision": NCAT Rules, r 36A(a). An ancillary decision is defined in s 4(1) of the NCAT Act to include '…a decision concerning the awarding of costs in proceedings". Generally, then, costs applications may be decided without a hearing if the parties consent. 3. However, that general position is potentially modified by the operation of: 1. Section 16 of the NCAT Act, which establishes (and allocates the business of the Tribunal to) several divisions, including relevantly the Guardianship Division in which this application is made; and 2. Section 17 of the NCAT Act, which allows for provisions (including procedural rules) specific to each Division, that: 1. are set out in the Divisional Schedule to the NCAT Act applicable to the Division concerned; and 2. under s 17(3), prevail to the extent of any inconsistency over the other provisions of the NCAT Act and the general procedural rules made under it, subject to certain exceptions (which, again, are not relevant for present purposes). 1. Schedule 6 to the NCAT Act is the Divisional Schedule applicable to the Guardianship Division. It provides or operates relevantly as follows: 1. The functions of the Tribunal in relation to the NCAT Act are allocated to the Guardianship Division [Sch 6, cl 3(1)] and are the Division functions of the Guardianship Division [Sch 6, cl 1(1)]. 2. These Division functions are in turn divided into two categories: 1. substantive Division functions, which are defined relevantly as any Division function other than "a Division function exercised in connection with the making of an ancillary or interlocutory decision of the Tribunal" [Sch 6, cl 1(1) of the NCAT Act]; and 2. by default, the residual Division functions that include the making of ancillary and interlocutory decisions, such as decisions on costs applications. 1. When exercising substantive Division functions of the Guardianship Division, the Tribunal is to be constituted by 3, 2 or 1 members, depending on the particular substantive Division function to be exercised [Sch 6, cl 4 of the NCAT Act]. However, when the Guardianship Division exercises a Division function that is not a substantive Division function, the general provisions of s 27 of the NCAT Act continue to apply. It follows that the Tribunal may be constituted by a single member for purposes of exercising the Guardianship Division's non-substantive Division function of making ancillary decisions, including on costs applications. 2. Clause 6 of Sch 6 of the NCAT Act also provides as follows: 6 Hearing required except for making of ancillary or interlocutory decisions (1) Despite section 50 of this Act, the Tribunal is required to hold a hearing in proceedings that involve the exercise of a substantive Division function. (2) However, the Tribunal may dispense with a hearing for the purposes of making an ancillary or interlocutory decision of the Tribunal. 1. This ensures that in the Guardianship Division decisions involving the exercise of substantive Division functions are made only after a hearing. In relation to decisions involving only the exercise of non-substantive Division functions (such as costs applications), it complements and, to the extent of any inconsistency, overrides the general position set out in s 50(1)(d) of the NCAT Act and in r 36A of the NCAT Rules. 1. The present application for costs is made in connection with an application under the Act. While the determination of the primary application on 4 April 2022 was a substantive Division function of the Guardianship Division, the present costs application is not. It is therefore one: 1. That may be heard and determined by a single member; and 2. In respect of which the Tribunal may dispense with a hearing consistently with the provisions outlined above. 1. The directions made by the Tribunal on 23 December 2021 concerning the conduct of the costs application were, in summary, as follows: 1. By 28 January 2022 Ms Edwin was to provide to the Tribunal and all other parties submissions in support of the costs application; 2. By 25 February 2022, all other parties were to file any responses to the Applicant's submissions; 3. By 11 March 2022, the Applicant was to file any reply to the other parties' submissions (if any); 4. The costs application is to be determined on the papers in chambers, unless any party objects in writing by 4pm on 11 March 2022. 1. Ms Edwin provided written submissions in support of the costs application on 27 January 2022. No other party provided any submissions, and no party raised any objection to the costs application being decided without a hearing. 2. Accordingly, the Tribunal is satisfied that the costs application may be determined by a single member on the papers and without a hearing, consistently with the provisions of the NCAT Act summarised above. Costs application 1. Section 60 of the NCAT Act makes provision concerning costs in proceedings before the Tribunal. Nothing in the Division schedule for the Guardianship Division modifies the operation of this section. 2. The starting point is s 60(1) of the NCAT Act. It provides that: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. The general rule therefore is that parties before the Tribunal are responsible for their own costs. 1. This general rule is modified by s 60(2) of the NCAT Act. It provides that: 60 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. 1. Section 60(3) of the NCAT Act provides some guidance as to the considerations which the Tribunal may consider in determining whether there are special circumstances that warrant a departure under section 60(2) from the general rule: 60 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. This list, if only by reason of the inclusion of paragraph 60(3)(g) of the NCAT Act, affords the Tribunal guidance but without fettering its ability to consider all matters that appear relevant. Moreover, the list merely indicates factors that may be considered in deciding whether there are special circumstances; it does not necessarily follow that the presence of one or more of these factors in relation to a particular set of proceedings should result in a costs order. 1. All of this sits in the wider statutory matrix of s 36 of the NCAT Act and s 4 of the Act, which are set out above. Of particular relevance here are the words "just", "quick" and "cheap" found in s 36 of the NCAT Act. The NCAT Act directs the Tribunal to pursue just outcomes, but in doing so makes it clear that it appreciates neither delay nor expense in proceedings before the Tribunal. This statutory aversion manifests itself in a number of provisions, including: 1. section 36(3) of the NCAT Act, which imposes a positive duty on parties to proceedings and their lawyers (if any) to co-operate with the Tribunal in order to give effect to the guiding principle, and 2. the costs provisions in s 60 of the NCAT Act. 1. The underlying policy setting of s 60 of the NCAT Act is clear. It provides a real incentive to parties to conduct proceedings in a way that is conducive to economy of time and expense consistently with the guiding principle. This is because a party who fails to do so can normally expect to bear the financial consequences of that failure, even if the eventual outcome of the proceedings is one that he or she seeks. It is important to note that the Act does not prohibit parties from incurring costs – whether modest or substantial - in relation to proceedings before it, should they choose to do so. What it can (and does) do, however, is to ensure that absent special circumstances the financial consequences of such a choice rest squarely with the person who makes it. 2. Section 38(2) of the NCAT Act provides as follows: 38 Procedure of Tribunal generally … (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. This reinforces at a practical level the guiding principles in s 36 of the NCAT Act, by allowing the Tribunal both to adopt a broadly inquisitorial approach to proceedings (rather than entrust matters to the adversarial system's elegant, but in procedural terms relatively leisurely and expensive, dialectic) and to do so untrammelled by the formal rules of evidence (as distinct from rationally probative but informal standards to which the substance of those rules offer guidance [1] ). Again, the objectives are clear: a just outcome obtained with economy of time and limitation of expense. 1. Section 45(1) of the NCAT Act provides as follows: 45 Representation of parties (1) A party to proceedings in the Tribunal – (a) has the carriage of the party's own case and is not entitled to be represented by any person; and (b) may be represented by another person only if the Tribunal grants leave ... Under s 45(3) of the NCAT Act, the grant or refusal of leave is within the Tribunal's discretion. All this provides a further practical underpinning of the guiding principle's quest for a just outcome with economy of time and limitation of expense. It does not prevent a party from seeking and obtaining legal advice in relation to a matter before the Tribunal. It does however place some brake on parties' incurring costs, by limiting the role of lawyers to providing advice and support rather than advocacy, except when expressly approved by the Tribunal. 1. These issues take on a further dimension in the Guardianship Division. The Tribunal there exercises a protective jurisdiction, the consequence of which is, as Lindsay J of the Supreme Court of New South Wales, put matters [2] when writing extra-judicially: "an exercise of protective jurisdiction requires that the Court (or, any decision maker exercising such jurisdiction or a protective function) act in the best interests, and for the benefit, of the protected person." The Tribunal's focus therefore lies squarely on identifying and promoting the best interests of the subject person in any application. 1. This fundamental principle of protective jurisdiction raises issues in the particular context of costs applications. Relevant considerations include: 1. A person with a genuine concern for the welfare of a person potentially in need of protection may be dissuaded from seeking the Tribunal's intervention because of an apprehension that either: 1. if the substantive application is dismissed, a costs order might be made against him or her; or 2. conversely, even if the substantive application is successful, he or she might be left out of pocket for costs incurred in making it. Hence, the deterrent effect of making (or not making) a costs order on the willingness of persons with the necessary concern to seek orders from the Tribunal needs to be borne in mind. 1. The interests of the subject person in an application are not necessarily best served by the making of an order against him or her to meet another party's costs. This is especially so if, as is frequently the case, the subject person has no control over: 1. whether the application is made or not, 2. whether the other party seeks and obtains legal advice or representation, or 3. the extent and intensity of the other party's recourse to legal advice and advocacy; and 1. The legislature has chosen to make the Tribunal (and its predecessor body, the Guardianship Tribunal) the primary adjudicative body in New South Wales in matters concerning decision making for persons with disabilities. Slattery J briefly explained the historical background in P v D1 & Ors [2011] NSWSC 257, at [53]: "Until the passing of the Guardianship Act this Court had unlimited authority to deal with the persons and the estates of incapable persons for their own benefit. The Supreme Court inherited this power from the Lord Chancellor's jurisdiction as it had developed up to the eighteenth century. To reduce expense and promote decision making with a degree of specialist knowledge, in 1987 the legislature created the Tribunal under the Guardianship Act, and gave the Tribunal most but not all of the jurisdiction formerly within this Court's jurisdiction". His Honour expressly notes that one of the objectives of the Guardianship Act was to reduce expense in relation to proceedings about the management of the estates and persons of incapable persons. In that context, the Act's deliberate allocation of primary jurisdiction in such matters to a tribunal whose constituting legislation provides that each party to proceedings in the Tribunal is normally to pay the party's own costs, indicates a very strong legislative expectation that in matters under the Act the traditional legal approach to costs does not (and, importantly, should not) apply. 1. The Tribunal has provided, in the form of the NCAT Guardianship Division Guideline dated August 2017 entitled Costs, written guidance as to both the practicalities of seeking awards of costs in the Division and the underlying legal regime for such applications. This is readily available online and sets out clearly in paragraph [7] that '... costs orders have been rarely made in the Guardianship jurisdiction". Anybody who makes an application in the Guardianship division must therefore be taken to do so with their eyes open to the likelihood that they will not be able to recover legal costs. 2. In the present application, CZH as Applicant seeks an order that her legal costs incurred in preparing and bringing the financial management application relating to her mother, KHT, be paid on an indemnity basis out of KHT's estate. The total of costs, disbursements and GST is set out in the invoice dated 25 January 2022 addressed to CZH by her solicitors, Maurice Blackburn Lawyers, and amounts to $19,301.07. The effect of making an order would be to make this amount a cost to KHT (who appeared to play no part in the commencement or conduct of the application), rather than her daughter (who was instrumental in both). 3. The submissions made on behalf of CZH in support of her application are relevantly as follows: "Submissions [CZH] submits that because of her father's neglect or refusal to discharge his responsibility as his wife's main carer and person responsible, [CZH] was required to seek independent legal advice and representation to bring an application to the Tribunal for financial management in respect of her mother. [CZH] claims that she was told verbally by her late father that 'everything had been sorted' in relation to [KHT]'s care. However, that was not the case. In or about early 2020, [CZH] made an application to the Tribunal. In or about August 2020, [CZH]'s application was dismissed by the Tribunal for want of prosecution. At that time, [CZH] did not have access to any of her mother's medical records to establish to the Tribunal's satisfaction that [KHT] was incapable of managing her affairs. [CZH]'s applications to issue summonses on third parties were refused by the Tribunal. [CZH] did not know the nature and extent of her mother's assets and liabilities (if any) or have access to any of her mother's bank accounts to establish to the Tribunal's satisfaction that there was a need for a financial management order to be made. [Ms Z] has been a signatory on [KHT]'s [bank] account ending [Number removed for publication.] for 15 years but did not provide [CZH] with any details of that account or other assets belonging to [KHT]. [KHT]'s affairs continued to languish Accordingly, on or about 9 July 2021, [CZH] sought legal advice and representation from Maurice Blackburn Lawyers in respect of a further financial management application to be brought in respect of her mother. Over the course of a six (6) months engagement with the firm, [CZH] incurred costs of having a legal representative assist her with the application, including but not limited to, taking [CZH]'s instructions, assisting [CZH] to procure the necessary and relevant evidence to have a financial management order made in respect of her mother and assessing the merit of the application. [CZH] also incurred costs of having a legal representative appear at 3 hearings: i. an interlocutory hearing on 23 November 2021 (to seek leave to be legally represented at the substantive hearing); ii. a hearing on 1 December 2021 (which was adjourned on 1 December 2021 to 23 December 2021 to allow [CZH]'s brother, [Mr Y], time to consider documentary material before the Tribunal, even though [Mr Y] was not noted as a party to the proceedings); and iii. a substantive hearing on 23 December 2021; and prepare written submissions on the issues in anticipation of the proceedings. [CZH] submits that, but for her actions to bring the application, her mother's affairs would have worsened. In or about January 2022, a new annual cap on the maximum means tested daily fee will recommence and [KHT] will be charged up to $27,532 unnecessarily. Her application was filed in October 2021 with a view to avoiding this additional cap being added to her outstanding liability owing to [the] nursing home. The application was brought in time for a financial manager to consider whether adequate provision has been made for [KHT] under her late husband's estate." 1. CZH's submissions reveal that before his death KHT's late husband, who appears to have been her primary carer, did not enter into an agreement for the permanent accommodation of KHT at the nursing home where she resides, did not arrange for her income and assets status to be assessed (thus exposing her to higher accommodation costs than might otherwise have been the case) and did not ensure payment in full of her monthly care fees. This was self-evidently a sad state of affairs for KHT, but – without in any way diminishing the seriousness of her predicament – there is nothing rare or special about any aspect of it. The Tribunal's lists often include applications for financial management orders in similar circumstances; that is to say, where the spouse who had conduct of a couple's financial and business affairs has failed – whether through incapacity, malice, neglect, unwillingness or death – to make adequate and timely arrangements to ensure the care of the other spouse who happens to be incapable of addressing his or her own needs. KHT's circumstances during the months before the making of the financial management order therefore do not of themselves amount to special circumstances for purposes of s 60(2) of the NCAT Act. 2. Moreover, there is nothing in the Tribunal's reasons for making the financial management order that indicates any special circumstances in relation to the conduct or progress of the application: 1. There was no dispute between any of the participants in the hearing as to KHT's incapacity; paragraph [15] of the reasons records that "At the hearing, it was common ground amongst all present that [KHT] was not capable of managing her affairs"; 2. Equally, all of CZH's sister, Ms Z, her brother, Mr Y, and KHT's separate representative, Mr Morrison, agreed that there was a need for a financial management order to be made; paragraph [20] of the reasons records this; and 3. There was no dispute that NSW Trustee and Guardian should be appointed as financial manager, and no participant in the hearing proposed himself or herself as financial manager; this is set out clearly in paragraph [24] of the reasons. 1. This indicates that none of the specific considerations set out in paragraphs (a) to (d) or (f) of s 60(3) of the NCAT Act, as potential indicators of special circumstances, was enlivened in relation to the financial management application. Those paragraphs share a common broad theme, of a costs order being made against a party in circumstances where that party's conduct of or approach to the proceedings is less than observant of the guiding principle in s 36 of the NCAT Act. It appears from the reasons for decision that no such criticism could reasonably be directed towards KHT, Ms Z or Mr Y. Whatever the state of relations may have been amongst KHT, CZH, Ms Z and Mr Y, nothing indicates that those relations materially impeded the initiation or conduct of the application, CZH's ability to bring it to a satisfactory conclusion, or the Tribunal's ability to make an informed decision on the application: see [36] above. 2. Paragraph (e) of s 60(3) of the NCAT Act, which refers to the nature and complexity of the proceedings, must also be considered. CZH's submissions refer, as do the Tribunal's reasons at paragraph [17], to the late Mr Y having excluded KHT from benefiting under his will. The reasons also refer to his having severed the joint ownership of the marital home. These matters underline both the concerning situation in which KHT found herself and the complexity of her financial circumstances. They also clearly indicate matters that the financial manager, once appointed, should investigate (and perhaps pursue) further. They do not, however, confer on the financial management application itself any particular complexity; if anything, they tend to make the application itself more straightforward and less complex, by underlining the reasonableness and appropriateness of making a financial management order for KHT. 3. The only potentially relevant consideration that emerges from the material provided on behalf of the Applicant is certain medical evidence provided by CZH in connection with her application on 23 November 2021 to be legally represented. This evidence comprises: 1. A medical certificate dated 22 November 2021 issued by Dr X in relation to CZH (under her then name), stating that CZH "... has features of dyslexia, which is a neurobiological condition that affects the part of the brain that processes language. She has been referred to the specialist for formal diagnosis"; it should be noted that this is not a diagnosis, but merely a record of certain features that were referred for further investigation and assessment; and 2. A patient health summary dated 17 November 2021 from a medical practice and a medical certificate from Dr X, indicating that CZH suffers from anxiety and depression. 1. These considerations may well have influenced the Tribunal's decision to allow CZH to be legally represented. That an applicant in proceedings before the Tribunal has reading or mental health issues is clearly a relevant factor for the Tribunal to consider in exercising that discretion. 2. However, it is one thing for the Tribunal to exercise its discretion under s 45(1) of the NCAT Act to allow a party who is affected by such disabilities to be represented, but another thing entirely for the applicant's legal costs to become a charge on the estate of the person whom the application concerns. It does not follow that such a decision (or the applicant's decision to use the right to representation conferred on him or her by the Tribunal under that section) amounts to a special circumstance for purposes of s 60(2) of the NCAT Act resulting in the imposition on the subject person of the costs of that representation. The Tribunal's clear warning to parties in paragraph [7] of the NCAT Guardianship Division Guideline dated August 2017 entitled Costs is relevant here. 3. Section 60 of the NCAT Act requires the Tribunal to undertake a balancing exercise in relation to any costs application. On balance in the Tribunal's assessment: 1. The evidence summarised in [39] is less than compelling, especially since there is not: 1. a diagnosis of dyslexia, 2. any indication as to the severity of the Applicant's diagnosed conditions, or 3. any evidence as to how they adversely affected her ability to initiate and pursue the financial management application without what appears to have been the quite intensive involvement of her lawyers. 1. There is nothing to suggest that any of the enumerated considerations in s 60(2) of the NCAT Act have been enlivened. 2. The considerations outlined in [31(2) and (3)] above outweigh that in [31(1)(b)]. 1. The Tribunal is not satisfied therefore that there exist special circumstances that justify making a costs order under which the Applicant's legal costs are paid out of her mother's estate. The costs application is thus dismissed. ********** Endnotes 1. Sullivan v Civil Aviation Authority [2014] FCAFC 93, at [97]. 2. Justice Geoff Lindsay, 'Financial Management and Remuneration' (Seminar Paper, NSW Civil & Administrative Tribunal (Guardianship Division), Tribunal Members' Training Seminar, 23 July 2014), http://www.austlii.edu.au/au/journals/NSWJSchol/2014/32.pdf. 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: 07 June 2023