CITATION: JI and anor v Protective Commissioner (No 2) [2005] NSWADT 115 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: General Division APPLICANTS PARTIES: JI and JK RESPONDENT Protective Commissioner FILE NUMBER: 033353 HEARING DATES: 29/04/2005 SUBMISSIONS CLOSED: 05/20/2005 DATE OF DECISION: 05/26/2005 BEFORE: Innes G - Judicial Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983 CASES CITED: Mangoplah Pastoral Co. Pty Ltd v. Great Southern Energy (No. 2) (2000) NSW ADT 4 David v David (1993) 30 NSWLR 417 APPLICANTS REPRESENTATION: R Pepper, counsel RESPONDENT T Tunbridge, solicitor ORDERS: Application for costs dismissed Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION INTRODUCTION 1 On 16 March 2005 this Tribunal affirmed the decision of the Office of the Protective Commissioner (OPC) to sell the property in Turramurra owned by the first applicant, JI. No order was made as to costs. 2 The applicants now seek an order that the costs of the proceedings be born by each party, but that the OPC be directed to release funds to the applicants to meet the applicants' costs of the proceedings. This order is opposed by the OPC. 3 This matter was set down for oral submissions before the Tribunal on 29 April 2005. However, due to various circumstances, the applicants' initial submissions were only received just prior to the day of hearing. After some discussion at the hearing, and with the concurrence of the parties, the respondent was provided with the opportunity to reply in writing, the applicants with the opportunity for a further written response, and the matter was determined on the papers. The Tribunal thanks the parties for their written submissions, and has utilised large passages from them in this decision. BACKGROUND 4 The factual background to the proceedings is summarised in the Tribunal's decision dated 16 March 2005. From that decision it is relevant to note that: -The affairs of the first applicant, including all of her financial affairs, are in the hands of the OPC. -The relationship between the applicants and the OPC has been a difficult and volatile one, and the applicants have been unhappy with the way the funds of the first applicant have been administered. -The respondent has been concerned by the lengthy delay which occurred before sale of the Turramurra property, as it has led to the depletion of the applicants funds. This sale is now proceeding. THE ISSUES 5 The Tribunal has power to award costs pursuant to s 88 of the Administrative Decisions Tribunal Act 1997 ("the Act"). Parties to Tribunal proceedings should normally carry their own costs, [Mangoplah Pastoral Co. Pty Ltd v. Great Southern Energy (No. 2) (2000) NSW ADT 4]. However, the Tribunal may award costs where it is of the view that their are special circumstances. The section also provides that costs cannot be awarded unless the legislation under which the original decision of the Tribunal is made allows for the awarding of costs. 6 The Tribunal also has power to impose conditions in respect of any order or decision it makes, pursuant to s 85 of the Act. 7 The Protected Estates Act 1983 is silent as to the ability of the Tribunal to award costs when exercising its function under s 28A. This was the section under which the Tribunal's function was exercised when it affirmed the OPC decision to sell the Turramurra property on 16 March 2005. 8 The applicant has argued that, because the Supreme Court is empowered to award costs under s 77 of the Protected Estates Act 1983, and because the purpose of the amendments to this Act were to provide applicants with a quicker and cheaper remedy, the Tribunal should be able to award costs under the Protected Estates Act 1983. The Tribunal does not need to turn its mind to this issue, as the applicants are not seeking an order for costs. 9 Rather, they are seeking an order that the OPC pay the applicants costs from the funds of the first applicant on behalf of the first applicant. This is necessary - the applicants argue - because the OPC wholly controls the financial affairs of the first applicant and it was on the first applicant's behalf that the proceedings were commenced. This was done - they say - because due to her incapacitation she was not able to commence them herself. 10 The applicants assert that they should not be compelled to commence a fresh application for review of the OPC's decision not to release the funds for the payment of the applicants' legal costs. They say that such a course would obviate the very object of the amendments to the Protected Estates Act 1983 - ie to facilitate the simple cheap and quick resolution of disputes between Protected Persons and the OPC. The applicants therefore seek an Order under s 85 making the Order the Tribunal made in this matter on 16 March 2005 subject to the condition that the OPC release sufficient funds to allow the first applicant to pay the legal costs of the applicants. 11 The respondent has submitted that s 85 is not relevant in these circumstances, and that the Tribunal cannot make such a condition to its order. However, the Tribunal is satisfied that it has the power to follow the course of action sought by the applicants. This view is based on the breadth of the s 85 provision of the Administrative Decisions Tribunal Act 1997, and the clear objects of the amendments to the Protected Estates Act to provide a quicker and cheaper review process for applicants. 12 The applicants argue that to deny protected persons access to their funds for the purpose of applying for a review of a decision made by the OPC will effectively strip from such persons the very rights which Parliament determined they are entitled to. They submit that at a practical level such a denial will mean that Protected Persons cannot engage the services of a Barrister or Solicitor to conduct their application, which in the case of these applicants, given their age and infirmity, would mean no such application would ever be brought. They assert that, ultimately, the denial of Protected Persons and their representatives access to funds to conduct proceedings will have a "chilling effect" on bringing proceedings in the ADT. The Tribunal adopts these submissions. 13 The Tribunal is of the view that, even though this is not an application of the s 88 provisions of the Act, those provisions set out the framework under which this Tribunal should award costs. Although any payment of costs in this matter would be as a condition of the original order under s 85, the Tribunal regards it as appropriate to follow the framework set out in s 88. It will therefore only make a condition to the order for the payment of costs from the funds of the first applicant if it forms the view that there are special circumstances applying. 14 What the Tribunal must now do is determine whether such circumstances apply. 15 The Tribunal is not persuaded that the first applicant should pay the share of the costs which are the responsibility of the second applicant. Whilst this may normally occur in circumstances where a married couple are living together and effectively pooling their funds, decisions of the OPC regarding the funds of the first applicant must (as set out in the Tribunal's 16 March 2005 decision) be the correct and preferable decision in the best interests of the person. The Tribunal cannot see how it would be in the best interests of the first applicant to pay the second applicants costs, and thus further deplete funds which she may need for her care and support in future years. It would therefore only be minded, at best, to make a condition that half of the costs be paid from the funds of the first applicant. 16 In a related context, the respondent has argued that, to quote from the Tribunals 16 March 2005 decision, "the driving force behind the original application was clearly JK who strongly opposed the decision to sell the property". The argument is supported by the facts that JK engaged solicitors to oppose the sale, that JI took no part in the proceedings, and no medical evidence was provided as to her incapacity to do so. 17 In addition, the respondent submits that at all material times JI's estate was subject to management by the Protective Commissioner under the Protected Estates Act 1983. As such JI's power to manage her own affairs was suspended (section 23A Protected Estates Act 1983), and also David v. David (1993) 30 NSWLR 417. They submit that she therefore had no capacity to retain legal representation, except with the approval of the Protective Commissioner. The Protective Commissioner was not requested to approve legal representation for JI and no approval was given. The respondent submits that therefore JI has no liability to pay the costs of the legal representation engaged by JK. 18 Furthermore, the respondent submits that JI was at all material times an "incapacitated person" within the meaning of section 71 (1) (c) of the Administrative Decisions Tribunal Act 1997. However, the Tribunal at no time appointed another person to represent JI pursuant to section 71 (4), nor was there any request made to the Tribunal to do so. The costs applicant, the respondent argues, is therefore JK alone, as he was the one who retained the services of Solicitor and Counsel, and incurred the liability for costs. 19 In response the applicants assert that it was on the first applicant's behalf that the proceedings were commenced, given that due to her incapacitation she clearly was unlikely to be able to do so by herself. They submit that it is therefore incorrect to assert, and the OPC has no evidentiary basis for doing so, that (at paragraph 1,1 of the OPC's written submissions) it was JK who engaged the services of Mooney & Kennedy to "represent him in his Application". Rather, both applicants retained Mooney & Kennedy to act on their behalf in respect of their application. That JI did not attend the hearing was due to her incapacitation. 20 The applicants further submit that there is no basis for the OPC to make the statement that "the driving force behind the original Application was clearly JK". Such a submission is in no way permissible, given that there are no factual findings to support it, and given that the Tribunal expressly refused to accede to the OPC's submission that it should draw an adverse inference from the fact that the first applicant did not give evidence. The effect of JI not giving evidence was neutral. 21 The applicants submit that it is simply too late now for the OPC to suggest that the proceedings have been improperly constituted insofar as JI is concerned. Such a point ought to have been raised at the commencement of the proceedings, and the OPC is now estopped from relying on s 71 (1) (c) of the Act. 22 In any event, merely because JI is incapacitated, and the power to manage her own affairs was suspended, does not preclude JI from commencing proceedings against the OPC and, as a matter of logic, from retaining legal representatives to do so. The legislation does not expressly, or by implication, so prohibit, and the OPC cites no authority for this proposition. Indeed, were it correct, it would have the effect of permitting the OPC to arbitrarily refuse to allow persons under their charge to commence proceedings against it, particularly in circumstances where legal representation is required due to the very incapacity which has caused their affairs to be controlled by the OPC. To interpret the legislation in the way posited by the OPC would lead to absurd and capricious results undermining the efficacy of the amendments introduced in 2002. 23 The Tribunal adopts the submissions of the applicants on these points. It would be a nonsense if - once a person's affairs were under the control of the OPC - that person (probably, but not necessarily, in conjunction with someone else) could not seek to have a decision of the OPC reviewed by the Tribunal. ASSESSING SPECIAL CIRCUMSTANCES 24 The applicants argue that if the order sought is not made it will subject the applicants to significant financial hardship. This submission is difficult for the Tribunal to assess in any detail because no information has been provided as to the amount of costs currently outstanding. However, the Tribunal recognises that the applicants are living on social security benefits plus some income from the OPC, and is prepared to take their financial situation into account as part of any assessment of special circumstances. 25 The applicants further argue that to deny this order would be a disincentive to parties challenging the decisions of the OPC in the Tribunal. They assert, as set out earlier in this judgement, that at a broader level to not allow the claiming of costs from JI's funds would severely limit the number of reviews sought under the amendments to the Protected Estates Act 1983. This, too, is a factor which the Tribunal is prepared to weigh. However, it does so in the context that, in normal circumstances, parties are responsible for their own costs. 26 The applicant has not argued other special circumstances, and the Tribunal is of the view that there are no other factors arising from its review of the OPC's decision that it would place into this category. 27 The respondent submits that this case does not give rise to any special circumstances warranting an award of costs in favour of JK, and against the estate of JI. It notes that the Tribunal affirmed the decision of the Protective Commissioner in this matter, and that in the normal course of events costs would follow the result. 28 Further, the respondent submits that the Tribunal, in affirming the Protective Commissioner's decision, also endorsed the Commissioner's reasons for selling the property. The Tribunal found that depletion of JI's estate is of major concern, as funds must be maintained to provide for her future care needs. It argued that to award costs to JK would unfairly penalise JI, and cause her estate to be further depleted. 29 Weighing all of these factors, the Tribunal is not persuaded that the applicants have made out an argument that the circumstances of this case are "special", and that even half of the costs should be drawn from the funds held by the OPC on behalf of JI. CONCLUSION AND ORDERS 30 The Tribunal, whilst recognising the financial difficulties faced by JI and JK in this matter, and the importance of maintaining in practise the ability of parties to challenge the decisions of the OPC, is not persuaded that a case for special circumstances has been made out. Whilst it is satisfied that the course of action proposed by the applicants - to make a condition of the order the release of funds from JI's estate - is one that the Tribunal may pursue, it is not prepared to pursue that course in this case. 31 The Tribunal orders that the application of the applicants is dismissed. 30/05/2005 - To correct case citation - Paragraph(s) 17 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.