Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AEL v Life Without Barriers (No 2) [2013] NSWADT 234 Hearing dates: On the papers Decision date: 21 October 2013 Jurisdiction: Community Services Division Before: L Goodchild, Judicial Member Decision: That the applicant's application for costs be dismissed. Catchwords: costs Legislation Cited: Administrative Decisions Tribunal Act, 1997. Community Services (Complaints, Reviews and Monitoring) Act, 1993. Cases Cited: McGuirk v University of New South Wales (GD) [2006] NSWAD TAP 39. Raethel v Director General Department of Education and Training [2000] NSWADT 56. Category: Costs Parties: AEL (Applicant) AEM (Applicant) Life Without Barriers (Respondent) Representation: Burke Elphick & Mead Lawyers (Applicant) Moray and Agnew Lawyers (Respondent) File Number(s): 114029 Publication restriction: Section 126 of the Administrative Decisions Tribunal Act, 1997 applies to this decision reasons for decision 1Section 126 of the Administrative Decisions Tribunal Act, 1997 applies to this decision. 2In AEL and AEM v Life Without Barriers [2012] NSW ADT 240 the Tribunal reviewed the decision of the respondent to cancel the authorisation of AEL and AEM as authorised foster carers and ordered that the decision be set aside. The applicants seek the respondent pay their costs of their application for the review of the decision. 3I had determined that the issue with respect to costs could be considered on the papers and directions were made for the filing and serving of submissions. This Tribunal received submissions for the applicant on 14 May 2013. Submissions of the respondent were received at this Tribunal on 17 July 2013. TRIBUNAL'S POWERS TO AWARD COSTS 4The Administrative Decisions Tribunal's power to award costs is governed by Section 88(1) of the Administrative Decisions Tribunal Act, 1997 (NSW) ("the ADT Act") which provides that, subject to matters identified in the section, each party to the proceedings before the Tribunal is to bear their own costs. In determining whether to award costs, the Tribunal must be satisfied it is fair to do so and have regard to the following: (1A) ... (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. 5The Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for awarding of costs (s.88 (3) ADT Act). 6The Administrative Decisions Tribunal Costs Guideline reissued 30 April 2010 provides (at (4)) that the general rule is that each party pays his or her own costs. It further provides that the general rule may be overridden by other legislation. 7The enactment under which the Tribunal has jurisdiction to make the decision the subject of review is the Community Services (Complaints, Reviews and Monitoring) Act 1993. Section 34 of that Act provides as follows - 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. It further provides - (4) This section applies despite the provisions of Section 88 (Costs) of the Administrative Decisions Tribunal Act 1997. 8The principles in both provisions give the Tribunal the discretion to award costs where the Tribunal believes that in the particular circumstances of the case it is appropriate to do so. 9This discretion is to be exercised judicially and no authority or rule can determine whether in any particular case an order should be made. Previous cases relating to costs orders can only provide an indicative guide to the kind of circumstances that may attract costs orders. A number of matters are to be taken into account in determining whether a costs order can be made and some of those matters would include matters or circumstances that are identified in the ADT Costs Guideline at (5) and mirroring the matters identified at s.88 (1)(A) of the ADT Act. 10It is necessary to identify a brief history of the substantive proceedings to properly consider the application made by the applicants for their costs. 11The decision under review was the de-authorisation of the applicants as authorised carers. The decision made by the respondent agency was made following an investigation undertaken by the respondent concerning one of the applicants, AEM. Due to allegations of sexual abuse made about AEM, he was considered by the respondent agency to pose a risk of harm to children in his care. He and his wife lived on the same premises as their daughter who was the long-term foster carer of 2 children. He and his wife provided their daughter with respite and assistance from time to time in caring for the children. The decision of the respondent agency the subject of review was either the children were to be removed from the care of the daughter or AEL and AEM were to leave the premises. 12The decisions made by the respondents arose from allegations made to the Department of Community Services in 2010. These allegations were made to a Helpline reporter. These allegations were investigated by the respondent's investigation unit and an initial risk assessment was undertaken. The New South Wales Ombudsman was properly notified. 13The investigation undertaken by the respondent found that there was some evidence of weight to support the allegations, however, it was recommended that the allegations were not substantiated, as there was insufficient evidence. A risk assessment was then undertaken employing the risk assessment matrix provided by the New South Wales Ombudsman. On the basis of that risk assessment it was determined that the children in the care of their foster carer were considered to be at risk if the domestic arrangements for the children did not change. Further, a consequence of that risk assessment was recommendations of de-authorisation of the applicants as respite carers. 14There was evidence at the hearing that there had been an investigation into the allegations of 2006 by the Department of Community Services (as it was then known) and it was found to be unsubstantiated. 15After hearing the evidence in these proceedings over 4 days, the Tribunal found that on the preponderance of evidence it was incapable of making a positive finding on the balance of probabilities that the alleged incidents occurred. The Tribunal further determined, with respect to the wider issue for determination, after an evaluation of the risk to the children in the overall circumstances of the case, the correct and preferable decision was not to de-authorise AEM and AEL as authorised carers. The decision made by the respondent was set aside. THE COSTS APPLICATION 16In their application seeking the Tribunal to exercise its discretion to award costs against the respondent, the applicant's relied upon a number of matters. The applicants submit that the respondent failed to assess the children's circumstances and failed to discharge their obligations to the children. They say this is demonstrated by the respondent agency failing to interview the children's paediatrician and by failing to amongst other matters give weight to the children's treating registered psychologist, or to undertake their own clinical or psychological assessment of the children. I reject this. Any observation or opinion proffered regarding the relationship that the children have with their carer and respite carers is not definitive in the Tribunal's determination of risk. A clinical or psychological assessment of the children can only take matters so far, particularly in the circumstances of this case where the children the subject of the proceedings had made no complaint against the applicant. This Tribunal is required to determine if the children would remain at risk in the care of their foster carer and having respite care with the applicants. Whilst the opinions of treating clinical psychologists may have been informative, they would not have been definitive. 17The applicants' further complaint is that as the allegations were the subject of an earlier investigation and that is a matter that should give rise to or could be raised in support of the application for costs. True it was that the Department of Community Services undertook an investigation in 2006 and as a result of that investigation the allegations were not substantiated. The primary documents in relation to that investigation could not be located. The fact remains however that fresh allegations had been made albeit with respect to the same set of circumstances. As such the respondent, in it's position as the foster care agency, should have and did undertake an investigation on the allegations. If they did not undertake an investigation they would be vulnerable to criticism in the exercise of their duties and obligations as an agency involved in the care of children. 18The applicants contend that the complaints were not duly scrutinised. They say that the complaints lack substance or merit and that if the complaints had been properly considered and investigated they would never have culminated in the making of the decision. The applicants found this submission in reference to the findings made by this Tribunal after the hearing of the proceedings over a matter of days and the consideration of extensive evidence. We reject this submission. 19It cannot be said that the respondent in this case acted frivolously, acted vexatiously or acted without good faith. The allegations made were very serious. Any disparity in the evidence was only available after a hearing of the proceedings. This was a complex matter where there existed considerable factual dispute, which could only be properly tested by a hearing of the evidence. There was no substantial disparity between the strength of the applicants' claim and the weakness of the respondent's claim. 20Proceedings such as these are not determined solely on the basis of material available to the respondent at the time they made the decision. We can and do have regard to material subsequently available from the time of the making of the original decision. 21The original decision made by the respondent was that, on the basis of the material available to it, the children were at risk of harm if they remained available to the respite care of the applicants. This was a decision that was open to the respondent at the time it was made. That decision, in the circumstances at the time it was made, could not be said to be an unreasonable decision or unarguable. 22The applicants contend that the respondent's failure to call witnesses should further support their application for costs. This is rejected. The failure to call the particular witnesses does not, in the circumstances of this case, found a costs order for the applicants. The evidence disclosed that one witness could not be located. 23The applicants further rely on a number of matters to which I have had regard including the submission that the investigation by the respondent lacked independence, the 'escalation' of the complaint in the records of the respondent and observations made regarding the records of the respondent. 24The respondent submits that the nature and complexity of the proceedings and the failure by the applicant to demonstrate substantial disparity between the strength of its claim and the respondent's defence means that no award should be made for the respondent to pay the applicants' costs. The respondent rejects the grounds identified by the applicant as the basis for making an award of costs. 25The respondent further submits that it has a limited capacity to pay any award of costs made against it. The respondent says that it is a not for profit organisation reliant in many respects on volunteers. It relies upon State Government funding. I have had regard to the submissions of the respondent. DISCUSSION AND FINDINGS 26These proceedings involved 4 days of hearing where oral evidence was given and affidavit evidence was filed exhibiting a considerable amount of material. The proceedings related to the welfare of young children under the care of foster carers and in those circumstances their safety, welfare and wellbeing was paramount in the making of any decision or the taking of any action. There was no evidence in these proceedings that there was any delay caused by the respondent or that the respondent failed to comply with any orders or directions or prolonged unreasonably the time taken to complete the proceedings. 27There was considerable factual dispute. The nature of the allegations demanded that the evidence had to be tested by the parties. The applicant did not suggest that the respondent had acted capriciously or unfairly or unreasonably in the decision that it made nor in the manner in which the proceedings were run. It was regrettable certainly that the papers from an earlier investigation in 2006 were not available but it is not at all clear that a further investigation would not have been required and a fresh decision needed to be made. A costs order is compensatory, not punitive: McGuirk v University of New South Wales (GD) [2006] NSWAD TAP 39 at [13]. It is not a form of damages. It is not to be used as a sanction to punish agencies before administration: Raethel v Director General Department of Education and Training [2000] NSWADT 56 at [57]. 28I have carefully considered the submissions made by the applicant and respondent. I have had regard to the conduct of the parties in the matter. 29Having regard to all the relevant factors I am not persuaded that it is fair to make an order to be made for the respondent to pay the costs of the applicant in these proceedings. I have also considered the respondent's limited capacity to pay any awarded costs made against him. That is not determinative but it is a matter that was taken into account. ********** 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: 23 October 2013