CITATION: A and anor v Minister for Community Services and ors (No.2) [2008] NSWADT 257 DIVISION: Community Services Division APPLICANTS A and B RESPONDENT Minister for Community Services PARTIES: Joined Party One BY Joined Party Two BZ FILE NUMBER: 074002 HEARING DATES: On the papers SUBMISSIONS CLOSED: 8 October 2007 DATE OF DECISION: 9 September 2008 BEFORE: Smyth M - Judicial Member; Monaghan-Nagle L - Non-Judicial Member; Norman C - Non-Judicial Member CATCHWORDS: Witness expenses - costs MATTER FOR DECISION: Costs Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 LEGISLATION CITED : Administrative Decisions Tribunal (General) Regulation 2004 Administrative Decisions Tribunal Transitional Regulation 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993 A and anor v Minister for Community Services and ors [2007] NSWADT 208 New South Wales Bar Association v Archer [2005] NSWADT 72 CASES CITED: Law Society of NSW v Khera (No 2) [2004] NSWADT 103 Mahenthirarasa v State Rail Authority of NSW No 2 [2008] NSWCA 201 Miller v Director-General, Department of Community Services (No2) [2007] NSWADT 140 APPLICANTS J McIntosh, barrister RESPONDENT G Moore, barrister REPRESENTATION: JOINED PARTY ONE J Blissett, solicitor JOINED PARTY TWO H Merten, solicitor ORDERS: The application is 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 1 In A and anor v Minister for Community Services and ors [2007] NSWADT 208 the Tribunal dismissed an application for review of an administrative decision to remove foster children from the applicants' care. The applicants applied under section 141 of the Administrative Decisions Tribunal Act 1997 [Tribunal Act] for reimbursement of witness expenses incurred in making one of their witnesses available for cross examination. The respondent opposed the application. Background 2 The Department of Community Services removed three children from the applicants' care on the basis of allegations of abuse made by young people the applicants had cared for previously. 3 In the course of the review application the applicants filed a statement from one of these young people retracting previous allegations he had made of mistreatment while in the applicants' care. In that statement the young person said that he had given the Department of Community Services misleading and untrue evidence and that he had left his placement with the applicants of his own accord. He referred to one of the Applicants and said he was well treated by them. 4 Section 126(1) of the Tribunal Act makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. Because of the sensitivity of this matter, we have decided not to publish any details that could identify the applicants or the young person. We refer to the applicants as "A" and "B" and the young person as "C". 5 An officer of the Department of Community Services had attempted to contact young person C to discuss his retraction of allegations about the applicants. Despite repeated efforts by that officer it was evident that young person C did not wish to have a conversation about his statement. The respondent advised that young person C was required for cross-examination and the applicants made him available. 6 As the initial four days of the hearing were held in a rural centre the witness had to travel some distance from his home in order to attend the hearing. The Applicants contended that the only way that young person "C" could get to the hearing was for the Applicant to drive a round trip of approximately 1356 kilometres to collect the young person from his home, drive him to the town where the hearing was held and drive him home again. The applicant's claimed that they had spent $210 on petrol. In addition, the applicants asked that the young person be reimbursed his lost wages as a result of attending four days of the hearing. In oral submissions the Applicant's claimed that this amounted to $156.40 a day. In later written submissions they claimed $648, $162 a day for four days. There was no evidence in the form of receipts or payment records before the Tribunal and in written submissions the applicants indicated they could be provided. 7 On the third day of the hearing the Respondent indicated that after they had an opportunity to cross-examine the applicants, they may not require all of the witnesses they had requested for cross-examination. They also notified the Tribunal that three of those witnesses were under 18 years. The respondent said that they were reluctant to ask those under 18 to give evidence but had done so and expected to review that and not require some of them. 8 The solicitors appearing for the children, the subject of the substantive review application, indicated reservations about young witnesses being cross-examined. There was a brief discussion with the Tribunal and the Tribunal raised a concern about young people having to wait outside a court house not knowing whether or not they would be required, and if so, when they would be required. The matter was stood down briefly for the respondent's counsel to obtain instructions regarding whether young person C was still required for cross-examination. The respondent then indicated that young person C was not required. 9 The applicants have applied for the payment of expenses for making young person C available. Part of their application for the payment of expenses was made during the hearing of the administrative review application and they were given leave to include the matter in their final written submissions. The applicants did not do so. In the Tribunal's written decision on the review application the applicants were given fourteen days to make any further submissions on witness expenses and informed that the matter would be determined on the papers in accordance with section 76 of the Tribunal Act. The applicant's filed submissions two weeks after the timetable set by the Tribunal. The law 10 Section 141 of the Tribunal Act provides for allowances and expenses of witnesses. The section states: (1) A person (other than a public servant) who is required to appear or give evidence before the Tribunal is entitled to be paid such allowances and expenses as are ascertained in accordance with a scale of allowances and expenses prescribed by the regulations. (2) Subject to subsection (3), the allowances and expenses are to be paid by the party at whose request a witness is summoned. (3) The Tribunal may order that the allowances and expenses of a witness referred to in subsection (2) be paid wholly or partly by the State out of money otherwise lawfully available. 11 The scale of witness allowances and expenses is set out in Regulation 12 of the Administrative Decisions Tribunal (General) Regulation 2004 [the Regulation] . In regard to a non-expert witness required to appear or give evidence before the Tribunal the person is entitled to the amount of wages actually lost because of the person's attendance and that includes travel time. An hourly and daily limit is set. 12 In addition rules are set out in the Administrative Decisions Tribunal Transitional Regulation 1998. Clause 20 of Schedule 1 requires a party requesting a summons to tender witness expenses at the time the summons is served. The Tribunal's Practice Note no 18 sets out the Tribunal practice regarding witnesses. Generally parties are required to file and serve statements by witnesses prior to hearing. If a witness is required for cross-examination the normal procedure is for the party who filed the witness statement to make that witness available. If the witness will not attend without a summons, then the party that filed the witness statement must arrange for a summons. The party requesting the summons must tender witness expenses at the time of service of the summons. 13 There is also a costs provision set out in section 34(1) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 [Community Services Act] That section states: (1)The Tribunal may, if in the particular circumstances of the case it is of the opinion that it is appropriate to do so, make orders with respect to the payment of costs of proceedings before it. 14 That section applies despite the costs provisions of section 88 of the Tribunal Act [section 34(4) of the Community Services Act 1993]. 15 Section 34 of the Community Services Act 1993 was considered by this Tribunal, differently constituted, in Miller v Director-General, Department of Community Services (No2) [2007] NSWADT 140. In that case the Tribunal considered the provision as broadly similar to section 110(2) of the Anti-Discrimination Act 1977 [at 72]. That subsection provides that: 'if the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs … as it thinks fit'. 16 The Tribunal noted that the Anti-Discrimination Act 1977 expressly provided that each party pay their own costs and that proceedings under that Act involved an exercise in the Tribunal's original jurisdiction in comparison to its review jurisdiction. Despite these differences, in that case the Tribunal found that the law on section 110 provided useful guidance on factors to have regard to when determining whether to order costs at [73]. 17 In Miller the Tribunal stated that '…. the discretion to order costs in the Community Services Division of the Tribunal ought be exercised with extreme caution.' [at 75] and that the conduct of parties was one of the factors to be taken into account in deciding whether the particular circumstances warranted exercising the discretion to order costs. We agree with that approach. Discussion and findings 18 The respondent submitted that the Tribunal should not entertain the application on the basis that the applicant's submissions were late. Most of the applicant's submissions and evidence regarding the application were placed before the Tribunal during the hearing and the respondent had an opportunity to respond to the applicant's submissions. In these circumstances, while the delay was not desirable, we do not consider that the respondent has been prejudiced. We have decided to entertain the application including the final submissions of the applicants. 19 The Tribunal had correspondence between the parties regarding the request for the witness to appear in evidence before it. The respondent informed the applicants that they required young person C for cross-examination before the hearing. The Tribunal accepts that young person C was under 18 years and that the applicants drove and picked him up and returned him home afterwards so that he would be available for cross-examination at the hearing. We accept that they spent $210 in petrol. We also accept that young person C lost wages as a result of making himself available. In the absence of specific evidence such as pay slips or documentation from his employer we have not made any findings about the actual amount lost. 20 As stated earlier on the third day of the hearing the respondent raised the age of young person C and determined that they no longer required young person C to give evidence. That decision was made in the context regarding minors giving evidence outlined above. 21 Neither party made any submissions to the Tribunal as to the interpretation of section 141 or the regulations referred to earlier in this decision. In this instance young person C was the applicant's witness and they filed his statement with the Tribunal. The practice of the Tribunal, consistent with the Tribunal's practice note outlined above, is that when a party is required for cross-examination the person who filed the witness statement, in this case the applicant, makes that witness available and if a summons is necessary it is their responsibility to issue one. 22 In this instance the applicants made the witness available as requested for cross-examination and no summons was issued. Section 141(2) specifies that witness expenses are to be paid by the party at whose request a summons was issued subject to the Tribunal exercising a discretion to make an order under section 141(3) that they be paid by the State. The section does not specify what is to happen when no summons has been issued. 23 Section 141 was considered by this Tribunal differently constituted in the Law Society of NSW v Khera (No 2) [2004] NSWADT 103, a case heard in the legal services division. In that case the applicant was a third party who made an application for his costs and expenses of complying with a summons to produce documents. In that decision the Tribunal referred to a statement of Bryson J in Danielletto v Khera (1995) 35 NSWLR 684 and stated: The ratio of that decision (between these same parties) related to an entitlement for recompense despite the eventual withdrawal of a subpoena. The comments made by His Honour appear to us to be greatly apposite. His Honour said at p 688 "it is not just to make the witness give attention to someone else's litigation without being paid for his time". [at 9] 24 The decision in Law Society of NSW v Khera was overturned on appeal for reasons unrelated to those remarks of Bryson J. In New South Wales Bar Association v Archer [2005] NSWADT 72 this Tribunal, differently constituted and sitting in the Legal Services Division, heard a costs application for costs of a third party relating to a summons to produce documents. That Tribunal also referred to the remarks of Bryson J and stated [at 52]: Indirect guidance is provided by the following observations of Bryson J in the Supreme Court case to which the Tribunal in Khera referred – namely, Danielletto v Khera (1995) 35 NSWLR 684. At 688, his Honour said: If the Court is invoked by a party to use public power to compel a person to give attention to preparation to hear litigation, there is a just entitlement to payment for the time of the person whose attention thus required and whose liberty and freedom of action are thus interfered with. A law which entitled a party to conscript the time and attention of others without paying for it would be oppressive. It would also be very poor policy as it would tend to generate resistance to the ordinary administration of justice. 25 A similar approach can be taken to the payment of witness expenses. Although no summons was issued for young person C he was required to appear to be cross-examined. If he had not agreed to attend then no doubt a summons would have been issued for his attendance. We are satisfied that he was "required" to appear and be cross-examined before the Tribunal". 26 Under section 141(2) the general position, subject to section 141(3) is that witness expenses are to be paid by the party at whose request a witness is summonsed. 27 In this instance he was the applicant's witness. It was the applicants who put forward his statement. If he had not agreed to attend then the normal Tribunal procedure would have been for the applicants to summons him to attend. However as there was no summons section 141(2) does not apply. No argument has been made that the expenses should be paid by the state in accordance with section 141(3) out of "money otherwise lawfully available" and we are not aware of a fund being available for a matter such as this one. 28 We now turn to the Applicant's submissions regarding the costs provisions. We agree with the Applicant's statement that the general rule is that costs are not made in favour of any party. Generally each party pays their own costs. 29 The Applicant submitted that the costs may be paid in special circumstances and referred to section 88 of the Tribunal Act. The power to award costs under section 88 of the Tribunal Act is "Subject to the rules of the Tribunal and any other Act or law, … ." [section 88(1)]. Section 34(4) of the Community Services Act 1993 states that section 34 applies despite the provisions of section 88 (Costs) provisions of the Tribunal Act. The Community Services Act 1993 was enacted after the Tribunal Act and in our view the relevant costs provision is section 34(1) of the Community Services Act 1993. We have already stated that the discretion to award costs should be exercised with extreme caution. 30 The costs provisions of section 34(1) of the Community Services Act 1993 are broadly framed and there is nothing in the language that limits those provisions to exclude payment of costs of proceedings to third parties. 31 The test for this Tribunal is whether in the particular circumstances of the case this Tribunal "is of the opinion that it is appropriate" to make orders with respect to the payment of costs. 32 The application is made for the applicants to recover their petrol costs and the third party, young person C, to recoup his lost wages. The applicants submitted that young person C was a minor, the Minister knew this before the hearing and that the Minister did not suggest that young person C not attend as he was a minor at any time prior to the hearing. They further submitted that had the Minister determined prior to hearing that young person C should not give evidence the expenses would not have been incurred. In addition, young person C has limited resources and would not profit from recovery of costs. The applicants also submitted that young person C was an important witness because his evidence pointed to the innocence of the Applicants as to allegations against them. 33 The applicants were well aware that young person C was a minor and they themselves pointed to the importance of his evidence. Given that his statement retracted earlier allegations he had made to officers of the Department of Community Services about the conduct of the applicants, it was not surprising that the Minister wanted to test that evidence. 34 The respondent is a government authority that discharges public functions. The principles that apply to the conduct of litigation by government were reviewed recently by the Court of Appeal in Mahenthirarasa v State Rail Authority of NSW No 2 [2008] NSWCA 201 at 16-20. These principles are well settled and government authorities in NSW are required to act as 'model litigants' and adhere to standards of fair dealing. 35 In this instance the Minister alerted the Tribunal to young person C's status as a minor. Following discussion with the Tribunal the Minister decided not to require young person C for cross-examination and clearly took into consideration his age in doing so. It is the reality of litigation that parties review their need to test all the evidence as hearings progress. In this particular instance there was nothing to suggest that the Minister acted capriciously, unfairly or unreasonably in deciding that the witness was no longer required. 36 We have carefully considered the evidence and submissions put to us and considered the conduct of both parties in this matter. Having regard to all relevant factors we are not persuaded that it is appropriate for us to order the respondent to pay the expenses incurred in making the witness available. 37 We have considered the position of the young person C who gave his time and lost wages in order to assist with the matter. While young person C was not summonsed, he was required and in all likelihood would have been "compelled" by summons if he had not agreed to come of his own accord. In those circumstances we do not consider that he should be out of pocket for the same reasons outlined by Bryson J in Danielletto v Keera. 38 Given that the only application before us is for the respondent to pay the witness expenses and we have determined that is not appropriate to order them to do so, it is not necessary for us to decide whether the witness expenses should be paid by others, for example the applicants. That is a matter the applicants may like to consider. Orders The application is dismissed. 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.