NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: OLL [2014] NSWCATGD 40 Hearing dates: 2 September 2014 Decision date: 27 October 2014 Jurisdiction: Guardianship Division Before: Gurr R, Senior Member (Legal) Tong L, Senior Member (Professional) Djoneski V, General Member (Community) Decision: Costs order made. Catchwords: ANCILLARY - COSTS - applications to review enduring guardianship appointment and enduring power of attorney - applications withdrawn at hearing - special circumstances - costs in the protective jurisdiction - no credible evidence to support applications - proceedings not reasonably commenced - quantum of costs. INTERLOCUTORY ISSUES - orders for separate representation made - leave for legal representation granted - contentious issues - directions made. Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Legal Professions Act 2004 (NSW) Powers of Attorney Act 2003 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ACJ (No 2) [2007] NSWGT 24 Bovaird v Guardianship Tribunal [2009] NSWSC 452 Brooks Maher v Cheng (2001) NSW ADT 18 DCN [2011] NSWGT 26 Ex parte Lai Quin (1997) 186 CLR 622 Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSW ADT 164 Hopkins v Governor General of Australia [2013] NSWSC 1068 Kondos v Citadin Pty ltd (LSD) [2003] NSWADATP7 at 25 Snelgrove v Swindells [2007] NSWSC 868 Sotiropouos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43 SWN [2011] NSWGT 5 (29 August 2011) Re Minister for Immigration and Ethnic Affairs (Cth) Whiteoak v State of NSW [2014] NSWCATAD 45 Category: Principal judgment Parties: Mrs OLL (subject person) Mr QAT (applicant, son, enduring guardian, attorney) Mr MBM (applicant) Representation: Ms NHQ for Mr QAT Mr UDW for Mr MBM Mr KGN for Mr QAT Separate Representative for Mrs OLL File Number(s): 55821 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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). reasons for decision What the Tribunal decided 1The Tribunal made an order that Mr MBM pay the costs of other parties on a party/party basis as agreed or assessed related to the proceedings concerning Mrs OLL, including the costs of the costs application. 2The Tribunal made no order as to the costs of Mr MBM's defence of this application. Background 3Mrs OLL resides in her own home north west of Sydney. She is 94 years old. Mrs OLL receives 24-hour in-home support from professional carers. Mrs OLL's son, Mr QAT, and daughter, Mrs QCN, are currently residing with her to assist in her care. Mrs OLL has another daughter, Mrs DFD, who resides in Canberra. 4Mr MBM has known the Mrs OLL's family for a long time. At one time Mrs OLL had offered him accommodation when he needed it and he lived in Mrs OLL's family home for a period of time. 5On 7 March 2014 the Tribunal received an application from Mr MBM, who described himself as a long-time close friend of Mrs OLL, to review an enduring guardianship appointment (EG) executed by Mrs OLL on 17 January 2012, appointing Mr QAT as her enduring guardian. Mrs OLL had executed an enduring guardianship on 15 March 1994, also appointing Mr QAT as her guardian. 6On 1 May 2014 a directions hearing was conducted, wherein the Tribunal ordered that Mrs OLL be separately represented in the proceedings. 7On 10 June 2014 a further directions hearing was conducted, wherein the Tribunal granted leave for Mr UDW, barrister, to represent Mr MBM in the proceedings and granted leave for Mr KGN, solicitor, to represent Mr QAT in the proceedings. On 27 June 2014 the Tribunal granted leave for Ms NHQ, barrister, to represent Mr QAT. None of the applications for legal representation was opposed. 8On 11 July 2014 the Tribunal received an application from Mr MBM to review an enduring power of attorney (EPOA) executed by Mrs OLL on 17 January 2012. Mr QAT was appointed under this instrument as Mrs OLL's attorney. Mrs OLL had previously executed an enduring power of attorney on 15 March 1994 appointing Mr QAT as her attorney. 9Both applications were listed for hearing on 24th July 2014. At the hearing Mr MBM withdrew both applications and the Tribunal dismissed them. 10Directions were made in relation to the filing of any application for costs which was to be heard on the papers unless otherwise requested. 11Mr QAT made an application for costs supported by written submissions. Mr MBM replied and also provided written submissions. He requested an oral hearing which took place on 2 September 2014. Mr UDW of counsel appeared for Mr MBM, who also attended the hearing, as did his solicitor Mr QID. Ms NHQ of counsel representing Mr QAT, was available on the telephone as she was not in Australia at the time of the requested hearing. The decision was reserved. The order was made on 27 October 2014. These are the reasons for that order. The Hearing in the Substantive Matters 12The hearing in relation to the two substantive applications was conducted in Balmain. It was set down for a half day. 13The following people were parties to the review of the Enduring Guardianship appointment: * Mr MBM, who requested the review * Mrs OLL, who made the Enduring Guardianship appointment * Mr QAT, the enduring guardian of Mrs OLL 14The following people were parties to the review of the EPOA * Mrs OLL, who is the principal of the enduring power of attorney * Mr MBM, who requested the review * Mr QAT, who is the attorney appointed under the enduring power of attorney sought to be reviewed. 15The following people attended the hearing * Mr MBM * Mr QAT * Mrs QCN, daughter * Mrs DFD, daughter * Mr EIJ, friend of Mrs DFD 16The following legal representatives attended the hearing * Ms NHQ of counsel for Mr QAT * Mr UDW of counsel for Mr MBM * Separate Representative for Mrs OLL The Reasons for Decision 17The reasons for decision in relation to the substantive matters are brief and they are, therefore, reproduced in full here. The bases for [Mr MBM's] applications had been that he had understood that [Mrs OLL] herself was concerned about restrictions that were placed on her by her guardian and attorney in relation him having access to her and also in relation to her finances. [The Separate Representative] reported that he had spoken with [Mrs OLL], that she had the capacity to express a view and that she did not consider that she had been unreasonably restricted and that she did not want [Mr MBM] to visit. In the light of this independent information obtained from [Mrs OLL]. [Mr MBM] asked to withdraw his applications. He did not wish to proceed contrary to [Mrs OLL's] wishes. The Tribunal agreed this was appropriate, as there was no evidence before the Tribunal that the appointments [Mrs OLL] had made were not working in her best interests or were contrary to her current wishes or that she was not well cared for. Both Applications should be dismissed. The Substantive Applications and the Issues between the Parties 18Both of the applications were withdrawn early in the proceedings on the hearing day. As will be apparent from the Reasons set out above, the Tribunal did not consider it necessary to conduct a full hearing whereby all of the evidence was ventilated and examined in reaching its decision to dismiss the applications and it was not suggested by any party that it should do so. This in accord with the objectives of the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') and the guiding principle for proceedings in the Tribunal (both set out in full below) that proceedings in the Tribunal should be conducted in such a way as to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 19However, the Tribunal had, before the hearing commenced, all of the voluminous documentary evidence, which included detailed affidavits sworn by the parties and witnesses as well as professional reports. It had read and digested all of this material before the commencement of the hearing. Had it not done so, it would not have been in position to dismiss the applications, being satisfied that there was no evidence which suggested a threat to Mrs OLL's welfare and well-being. 20Because this material, which would ordinarily be set out in the Reasons for the order which determined the substantive applications is not readily available in the context of this costs application, and it is not now open to the Tribunal to conduct a hearing which would amount to a hearing on the substantive applications, to determine each and every issue between the parties, it is necessary to summarise briefly the bases for the applications and the issues between the parties, to understand the nature of the proceedings in which this application is made. 21In his applications Mr MBM indicated that Mrs OLL was of advanced age, that she was physically frail and that her health was rapidly deteriorating. In a letter dated 24 May 2014 Dr Z, geriatrician, expressed the view that Mrs OLL lacked capacity to make decisions regarding her accommodation and health care and to manage her finances. In a letter dated 27 May 2014 Dr Y, general practitioner, expressed the view that Mrs OLL was at a stage where she was unable to make decisions for herself due to a deterioration in her cognition. Dr Y stated that Mrs OLL's cognitive ability was severely impaired due to advanced age, frailty and fatigue. 22There was no disagreement between the parties that Mrs OLL was frail and that she now lacked the capacity to make her own decisions in relation to her care and medical treatment and her finances. 23In his application Mr MBM sought revocation of the enduring guardianship appointment. In an affidavit dated 7 March 2014 Mr MBM proposed that he be appointed as Mrs OLL's guardian. 24In his application Mr MBM expressed concerns about the care that Mrs OLL was receiving at home. He expressed the view that meals prepared for Mrs OLL by her carers were inadequate and that Mrs OLL did not get an adequate amount of exercise. He also claimed that Mrs OLL's health was rapidly deteriorating as a result of the care she was receiving and that she was in urgent need of medical attention. Mr MBM expressed the view that Mr QAT had taken no action to ensure that Mrs OLL was provided with a higher standard of care and adequate medical treatment. 25Mr MBM also raised concerns about his ability to have access to Mrs OLL. Mr MBM claimed that Mr QAT had hired security guards to discourage him from seeing Mrs OLL. 26In an affidavit dated 7 March 2014 Mr MBM outlined the difficulties he had encountered in visiting Mrs OLL. He referred to an application for an apprehended violence order (AVO) that had been filed against him by Mr QAT in December 2012, which included Mrs OLL as a person requiring protection. He said that this matter was ultimately mediated with certain undertakings being given by the parties. Mr MBM advised that one of the undertakings given by Mr QAT was that he would be allowed to visit Mrs OLL at certain times during the week. Mr MBM indicated that these undertakings had not been adhered to and that he had consistently encountered difficulties in visiting Mrs OLL. Mr MBM expressed the view that Mr QAT had exceeded his authority as Mrs OLL's enduring guardian in preventing him and other friends from visiting Mrs OLL. 27In a statutory declaration dated 29 May 2014 Mr QAT advised that Mrs OLL had had the assistance of services at home since late 2011. It had been reported to him by the services involved that Mr MBM had interfered in Mrs OLL's care. Mr QAT advised that he had subsequently made the application for an apprehended violence order against Mr MBM referred to above. He said that his intention in doing so was to allow Mr MBM reasonable access to Mrs OLL but to prevent him from carrying out any feeding of Mrs OLL or from administering any medications to her. Mr QAT expressed the view that Mr MBM did not have the requisite expertise to provide care to Mrs OLL. 28Mr QAT said that security at Mrs OLL's home had subsequently been engaged after services had indicated that they may withdraw. Mr QAT indicated that the threat to withdraw services had been precipitated by an incident whereby Mr MBM was witnessed entering Mrs OLL's home through a window. 29Mr QAT said that he intended to do all he could to enable his mother to remain in her own home as he understood this to be her wish. 30Mr MBM advised that, if he was appointed guardian, he would try to ensure that Mrs OLL was able to continue to live in her own home. He said that he would be prepared to provide care to Mrs OLL in her home. Mr MBM indicated that, if this arrangement proved untenable, he would be prepared to provide care to Mrs OLL in his home. Mr MBM stated that he would not prevent any of Mrs OLL's children from having access to her. 31In his application to review the EPOA, Mr MBM sought orders that Mrs OLL did not have capacity to execute the enduring power of attorney and that it was therefore invalid. Mr MBM additionally sought the removal of Mr QAT as attorney, the appointment of a substitute, and orders that Mr QAT furnish accounts. 32He claimed that Mr QAT had failed to explain what had happened to a term deposit held by Mrs OLL at the time he took control of her finances. Mr MBM claimed that Mr QAT had prevented Mrs OLL from accessing her bank statements so that she was not informed of her current financial position. In an affidavit dated 11 April 2014 Mr MBM expressed concerns that Mrs OLL's money was being wasted on employing security guards. 33Mr MBM's solicitor submitted for a summons to be issued to Mr QAT for the production of various financial records. This request was not agreed to and subsequently withdrawn. 34In a statutory declaration dated 29 May 2014 Mr QAT advised that he paid for Mrs OLL's nursing fees and the costs of security guards at Mrs OLL's home from his own funds. He said that Mrs OLL owned her own home, had limited cash assets and received the pension. He indicated that Mrs OLL had, at some point, signed authorities to allow Mr MBM to withdraw funds from her bank account. Mr QAT expressed concerns about withdrawals made on Mrs OLL's account while this authority was in place. In an affidavit dated 1 July 2014 Mr MBM claimed that he had only withdrawn money from Mrs OLL's account with her authority and permission. 35All of Mrs OLL's three adult children were strongly opposed to the orders sought by Mr MBM. The statutory framework for the determination of an application for costs 36The power of this Tribunal to make costs orders is found in s 60 of the CAT Act, which includes, as a starting point, that each party must pay his or her own costs. 37Section 60 is in the following terms. 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. (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 Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 38The objectives of the CAT Act and the guiding principle in s 36 are relevant considerations in determining an application for costs. 39Amongst the objectives set out in s 3 are the following: (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and 40The guiding principle to be applied to practice and procedure is set out as follows by s 36 (1) 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. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 41In relation to the withdrawal of applications, s 55 of the CAT Act allows the Tribunal to dismiss proceedings at any stage if the applicant seeks to withdraw the applications. In the words of s 55, "the Tribunal may (our emphasis) dismiss" the application - it is not bound to do so. 42Whilst the Guardianship Division of the Tribunal is bound by the provisions of the CAT Act, if it is exercising functions under the Guardianship Act 1987 (NSW) - as it is doing when reviewing an Enduring Guardianship but not an Enduring Power of Attorney, where the functions are pursuant to the Powers of Attorney Act 2003 (NSW) - it must also have regard to the principles of that Act, set out in s 4, as follows: 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. 43The Guardianship Division of the Civil and Administrative Tribunal continues to exercise the same protective jurisdiction as the previous Guardianship Tribunal and this is not inconsistent with it now being governed by the provisions of the CAT Act. For that reason and to the extent that the costs provisions of the CAT Act have some similarities with the now repealed provisions of the Guardianship Act (to begin with, the starting point for both is that each party should beat that party's costs), decisions made pursuant to the repealed provisions will have some guidance to offer in the making of costs orders under the CAT Act provisions, particularly as they refer to underlying principles. 44Despite the broad terms of s 69(1) of the Guardianship Act, (the costs provisions), costs orders in the Guardianship Tribunal under that statutory regime were rare. It was well recognised in a series of cases that the Tribunal's protective jurisdiction required that people should not be discouraged from bringing substantial and well-motivated applications to the Tribunal for fear of a costs order. It was determined that it would be inconsistent with the purpose of the Guardianship Act to make costs orders on a "winner loser" basis. 45The Procedural Direction which applies to costs in the Guardianship Division includes a list of cases decided in the main under the previous legislation, as a guide to the principles and the approach to be applied in a protective jurisdiction. This includes two instances where the Supreme Court appears to have endorsed the approach of the (then) Guardianship Tribunal (Snelgrove v Swindells [2007] NSWSC 868, Bovaird v Guardianship Tribunal [2009] NSWSC 452). 46Once an application is made, the Tribunal needs to deal with it in accordance with its statutory framework. The Tribunal is not bound by the rules of evidence and is required to conduct its hearings so as to give effect to the guiding principle of the CAT Act, which is set out above. In the Guardianship Division, legal representation requires the leave of the Tribunal. The Submissions 47Written submissions were provided on behalf of both Mr QAT and Mr MBM. They are summarised here and not repeated in full. Mr MBM sought a hearing rather than having the matter determined on the papers. The Separate Representative did not seek to make a claim for costs or to participate in the costs determination. 48Mr QAT acknowledged that the usual position was that costs would not be awarded. It is argued, however, that "special circumstances" existed under s 60 (1) of the CAT Act. It was acknowledged the "special circumstances" are not defined in the CAT Act. However, it was argued that the Tribunal could find assistance from the decision in Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSW ADT 164 ("Gizah") by GB Molloy Judicial Member of the Administrative Decisions Tribunal at where it was said at [29] in examining the phrase "special circumstances" as it occurred in s 88 ((1) (a) of the Administrative Decisions Tribunal Act 1997 (NSW) I am of the opinion that in order to satisfy the test of special circumstances one must find circumstances that are out of the ordinary, but without having to be extraordinary or exceptional, and those special circumstances would warrant an award of costs. In other words I agree with Brooks Maher ((Brooks Maher v Cheng (2001) NSWADT 18) that there are two hurdles for a costs applicant to overcome. 49It was submitted that the Tribunal should find, pursuant to s 60(3) of the CAT Act, that the applicant's claim had no tenable basis in fact or law (s 60(3)(c)) and was frivolous or vexatious or otherwise misconceived or lacking in substance (s 60(3)(e)). 50It is argued that, by his evidence he has demonstrated that he has pursued his own personal interests and not demonstrated a genuine concern for her welfare as is required of applicants (s 6J(1)(b), Guardianship Act). With reference to the various affidavits which were filed in this matter, it is alleged he interfered with the access and functions of carers, and not acted in the interests of her health by administering aspirin which was not prescribed, kissing her on the forehead when he had a cold sore and attempting to intervene to prevent her attending medical appointments. It is alleged he harassed the family and refused to leave the premises, insisting the only person who could ask him to do so, was Mrs OLL, despite the fact that other members of the family also resided in the property, that he climbed through a window to break into the property, made family members and employed carers feel insecure to the extent that security guards had to be employed to protect the carers, stalked and intimidated carers and family members attending to Mrs OLL at her home by recording their names and the registration numbers of their personal vehicles and providing them to his solicitor. 51The recent decision of Hopkins v Governor General of Australia [2013] NSWSC 1068 ('Hopkins') was cited in summarising what constituted a "frivolous and vexatious" claim, in that case for the purposes of summary dismissal pursuant to rule 13.14 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). After considering the authorities Mr Justice Garling found (at [70] and [71] that An examination of this claim against these authorities and the statutory provisions demonstrates that Mr Hopkins' claim is hopeless, there is no evidence which exists in support of it, nor can evidence be obtained to support it. I am satisfied that the case is a very clear one. It is obviously untenable and it cannot possibly succeed. It is manifestly groundless and its deficiencies are such as not to admit of any rational argument in support of the relief claimed in the proceedings. 52 It is submitted that the applicant's claim was frivolous or vexatious, applying the test described by Garling J for reasons which are again enumerated with reference to the affidavit evidence filed - Mr MBM referred to his activities in trying to gain access to Mrs OLL as some form of "game" or entertainment, he has published extravagant and unjustified allegations in relation to Mrs OLL's adult children, especially Mr QAT, he used his applications to attempt to gain access to Mr QAT's financial information, he has no direct interest in Mrs OLL's estate, he has persisted in his application despite being served with medical evidence from Mrs OLL's treating doctors, Drs Z and Y, dated May 2014 which refutes his claims that she is not being properly cared for and medically treated. He extended his claim late in the proceedings by filing an application to review the EPOA on 11 July 2014 and used this in a further attempt to gain access to Mr QAT's financial information, in a context where there was no evidence that Mrs OLL's funds were being applied other than for her own benefit by Mr QAT as her attorney. 53Other relevant matters which it is submitted the Tribunal may take into account pursuant to s 60(3)(g) of the CAT Act - the instruments sought to be challenged were made at a time when there was evidence Mrs OLL had capacity and independent legal advice, all of the siblings, as persons with an interest in her welfare and her estate, were in agreement with Mr QAT's appointments and the arrangements for Mrs OLL's care and financial affairs. The Applicant alleged to others that his difficulties with Mr QAT date from the latter's discovery of the value of his mother's property and his alleged obsession with this, despite Mr QAT paying his mother's significant care costs personally and being the sole beneficiary in relation to her realty. 54Mr MBM alleged he was Mrs OLL's "carer." In reality it is said, again with reference to the affidavit material, that she had been an independent woman who had cared for others, including up until about 2011, Mr MBM. He had assisted Mrs OLL by driving her to appointments after she ceased driving in her mid-80s. 55It was submitted that had the applications not been withdrawn, it would have been open to the Tribunal to find on the evidence that Mr MBM lacked the standing to make them. This would have warranted the making of a costs order. It is alleged that the matters set out in relation to Mr MBM's behaviour both generally in relation to Mrs OLL and her family and carers and to some extent in relation to the way these proceedings were conducted, as set out in the submissions, constitute "special circumstances" within the meaning of the CAT Act which warrant the making of a costs order. 56Costs could be awarded on an indemnity basis, on a party basis, and in a particular sum or proportion or as agreed or assessed in accordance with the Legal Professions Act 2004 (NSW). 57Copies of the memoranda of fees from Mr QAT's solicitor and counsel are attached to the submissions. The amount sought is $25,250 inclusive of GST. 58Mr MBM through his legal representative provided a written response to Mr QAT's initial submission opposing the application and submitting that this was not a matter in which the Tribunal should depart from the usual practice that parties bear their own costs. He also sought an order that Mr QAT pay the costs of Mr MBM having to defend this application for costs. 59During the hearing Mr UDW confirmed that his client opposed the application and addressed in some detail his objections to the grounds on which the application was made. He denies the claim that Mr MBM's applications were not tenable in fact or law or were frivolous or vexatious or otherwise conceived or lacking in substance. 60Mr UDW submitted that not having determined the applications, it was not now open to the Tribunal to try a hypothetical case or make a finding that the applicant lacked standing to bring the applications. 61After a recitation of the applications and affidavits filed in this matter, it was submitted on Mr MBM's behalf that although the Separate Representative had visited Mrs OLL on or about 31 May and therefore knew her views prior to the Directions Hearing on 10 May these views were not revealed until the hearing. No affidavit of her views was filed. These views were critical for Mr MBM and he withdrew the applications as soon as he knew what they were. This, it is submitted, was in Mrs OLL's best interests. 62Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Quin (1997)186 CLR 622 ("Lai Quin") was referred to as supporting the proposition that if proceedings are reasonably commenced and defended and the conduct of the parties continued to be reasonable until the matter was settled or its further prosecution became futile, the proper exercise of the costs discretion will mean that there will be no order for costs (McHugh J at 624-5). It is asserted in the light of the evidence that Mr MBM acted reasonably in commencing these proceedings and in withdrawing them as soon as he became aware of Mrs OLL's views. 63It was submitted that the principles which had been enunciated in cases such as ACJ (No 2) [2007] NSWGT 24, determined under previous legislation, that well motivated applications should not be discouraged through the fear of costs order still applied even though the test was now somewhat different pursuant to the CAT Act. The provisions of that Act were referred to and submissions made in relation to "special circumstances." It was said the case of Gizah cited by the costs applicant was not relevant to the Guardianship Division because of the special nature of that case - it was a case in the retail leases jurisdiction and it was pointed out by the Appeal Panel in Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43 that because that division alone dealt with commercial disputes so that discouragement of applications through fear of a costs order should not be part of the context in which "special circumstances" was interpreted. However, the Appeal Panel appears to say that this was recognised in Gizah. 64It is submitted that the recent case of Whiteoak v State of NSW [2014] NSWCATAD 45 will be of more assistance to the Tribunal in determining how "special circumstances" might be interpreted. Brooks Maher v Cheng (2001) NSWADT 18 was referred to the effect that "special circumstances" in the context of a costs claim were those which "take the matter out of the ordinary course of events" or (per Kondos v Citadin Pty Ltd (LSD) [2003] NSWADATP7 at 25 ('Kondos') "where there are factors which extend beyond those reasonably connected with the usual or ordinary pursuit of a claim." 65Mr MBM says that there are in this matter no factors which extend beyond those reasonably connected with the ordinary pursuit of a claim. 66He opposes the allegations that he was not acting in Mrs OLL's best interests in making these applications. He claims to have had a genuine interest in her welfare. With reference to the material filed he says he did not interfere with the access and functions of carers for Mrs OLL. He says that the date of the letter from the aged care facility (which was cited as containing independent evidence for this allegation) is irrelevant because it is dated some two years before the applications were filed and the allegations are not "current" and therefore, irrelevant. In any case, the allegations are, he says, general and not supported by details of incidents. Mr MBM says he is "the only witness to give evidence that he has not interfered with the access and functions of the carers" [paragraph 42d]. 67A number of submissions point to allegations or refutations which appeared in Mr MBM's affidavits and say that because Mr MBM's assertions are not refuted or contrary evidence brought then the Tribunal must accept his evidence [e.g. paragraphs 43b, 44f, 54, 58, 85]. He says that the allegation of elder abuse and the issues which give rise to it are "uncontested" [paragraph 60]. 68Mr MBM alleges that he was a "carer" for Mrs OLL and he enumerates activities [paragraph 74] carried out on her behalf. He alleges a range of activities carried out by Mr QAT which he says contravene the principles of the Guardianship Act [paragraph 84] and paint a picture of abuse and neglect on Mr QAT's part and that of family members. He says in other parts of his submissions he was the only person concerned about Mrs OLL's welfare. He alleges "elder abuse" when Mr QAT in 2012 took Mrs OLL's bank books, he says against her wishes and at a time (2012) when he alleges she had capacity to manage her own affairs. 69In summary he says that the application for costs should be dismissed. The Question to be decided by the Tribunal 70The Tribunal needs to decide whether there are special circumstances in this case that warrant a departure from the statutory starting point and usual practice of not awarding costs. In doing so, it must adhere to the statutory regime set up by s 60 of the CAT Act and have regard to the matters set out there. 71The Tribunal did not consider it helpful to examine what might be meant by "special circumstances" in vacuo or with reference to cases decided in other jurisdictions in cases involving different issues under different statutory regimes. The result of such an examination is likely to be to simply substitute other words for the phrase "special circumstances" which will not significantly advance our consideration of the matter. 72The broad term "special circumstances" denotes the necessity to exercise a discretion in the particular facts and circumstances of the case in which the decision is being made. 73The interpretation of "special circumstances" in this jurisdiction will occur in the context of, and having regard to, the principles of the Guardianship Act, to the extent that functions are being exercised under that Act. The principle set out in cases decided pursuant to the previous statutory regime under the Guardianship Act - i.e. that in a protective jurisdiction that people should not be discouraged from bringing substantial and well-motivated applications to the Tribunal for fear of a costs and orders will not simply be made on a "winner loser" basis, will also provide guidance for the interpretation of "special circumstances" in this case. These principles are, in any event, implied to some extent in the costs regime of the CAT Act, and the objective of the CAT Act "to ensure that the Tribunal is accessible and responsive to the needs of all of its users." Standing 74The Tribunal considered the submission that costs could be awarded because Mr MBM lacked standing to bring the application. The question of whether an applicant has standing to bring an application is a preliminary jurisdictional question. The Tribunal must be satisfied that there is standing in order to establish that there is a valid application to determine. In most of the matters in which the Tribunal has previously awarded costs, the application has been dismissed on the basis that the applicant lacked standing (see for example, ACJ (No 2) [2007] NSWGT 24; SWN [2011] NSWGT 5 (29 August 2011) and DCN [2011] NSWGT 26). 75Whilst, had the applications continued on the day of the hearing, there may well have been issues of standing, the applicant's standing or lack thereof, is not a matter about which the Tribunal can make a retrospective determination now that the application has been determined. The Tribunal does not consider that it is possible to make a costs order on the basis that Mr MBM lacks standing to have brought the application. Are there special circumstances which justify the making of a costs order? 76The CAT Act gives more guidance to the Tribunal than the costs provisions of the Guardianship Act, in enumerating matters that it may have regard to in determining whether there are circumstances justifying an award of costs. This is an open ended list and includes provision for any other relevant matter to be taken into account. 77The applicant sought to withdraw the applications. The Tribunal, however, is not bound to dismiss applications because the applicant seeks to withdraw them, if there is any perceived threat to the welfare of the subject person which merits the attention of the Tribunal. It has a wide range of a options open to it when applications are made and decided, including in this case, converting the applications for the reviews of the EG and the EPOA to applications for guardianship and financial management respectively. There are orders the Tribunal can make on its own motion. It is not unknown for the Tribunal to decline to dismiss a matter which is sought to be withdrawn because, its protective jurisdiction having been invoked, it considers there are matters it should proceed to consider, in the best interests of the subject person. 78The Tribunal is of the view that it is not necessary to adjudicate each and every issue raised by Mr MBM in order to ascertain whether, as submitted by the costs applicant, Mr MBM's claim has no tenable claim in fact or in law or the proceedings are misconceived or lacking in substance. It is not necessary to make findings in each matter where there was a factual dispute. We cannot now examine and decide the substantive applications - they have been decided by the Tribunal, which concluded there was no evidence to suggest that allowing the status quo to continue in relation to Mrs OLL was in any way a threat to her welfare or not in her best interests. It is, however, necessary to make some observations in relation to the nature of evidence on which the substantive claims of the Applicant were founded. 79The Tribunal is not bound by the rules of evidence. However, it must have regard to the nature of the evidence and information provided to it in determining the weight to be placed on it. It has to rely on the "best" evidence which, as it is mostly prepared and presented by non-legal professionals and/or family members and friends, is sometimes not as good as the Tribunal would like it to be. However, evidence relied on to found a decision has to be credible and tend to prove the facts it claims to support. If it relates to matters in hot and personal dispute it will more likely be credible if it is independently corroborated. 80As a protective jurisdiction, this is not strictly a part/party jurisdiction. However, the applicant must bring credible evidence to the Tribunal to support his or her application. It must support the conclusion that matters are disclosed which merit the attention of the Tribunal. It is not sufficient to raise unsubstantiated allegations and demand that they be answered by the other parties or that other parties provide evidence which will refute the claims. Many of the submissions made on behalf of Mr MBM referred to statements made in his affidavits and argued that, because these were not refuted by Mr QAT or someone else, they must be accepted by the Tribunal. The Tribunal did not agree. 81Mr MBM's applications are accompanied by a large volume of documents - affidavits by him containing reference to incidents which have taken place over years - supported in turn by notes claimed to have been made by him contemporaneously in relation to these incidents, which, he says illustrate his concerns. These documents are all of his own manufacture and the Tribunal found them on the whole to be self-serving. He constructed from these "observations" an evidentiary edifice - which had no foundations other than his own wishes or beliefs, many of which were based in misperceptions. Volume does not necessarily equal substance. Mr QAT or members of the Mrs OLL's family did not have to account to Mr MBM for their actions - nor refute his "evidence." 82That is not to say that none of what he says is to be believed but, in relation to the main allegations he makes and which are central to the success of his applications, his claims are not tenable. 83Mr MBM's claims are not supported by a single witness or any independent evidence. Such independent professional evidence as there was from her service providers and treating doctors, did not support Mr MBM's claims that Mrs OLL was not being adequately cared for and that appropriate decisions were not being made as to her care or medical treatment. 84Mr MBM also claims that Mr QAT had prevented him, Mrs OLL's brother and other friends visiting Mrs OLL. There is no evidence from any other person who claims to have been prevented from visiting Mrs OLL. She has said, through her Separate Representative that she does not consider herself unnecessarily restricted in her current situation. She does not want to change it. 85The Tribunal is entitled to take into account the behaviour of parties in evaluating the credibility of allegations which are not supported by independent corroborative evidence and in determining whether there are "special circumstances." 86Mr QAT says that the security guards were recruited after carers felt threatened by Mr MBM climbing in Mrs OLL's bedroom window. Mr MBM does not deny he did this but says Mrs OLL "directed" him to do it. Mrs OLL is a frail, ill woman in her nineties - the Tribunal does not accept she did "direct" him to climb in her window and her wishes, when expressed through the Separate Representative, that she did not want Mr MBM to visit - would also suggest this was not a credible claim. The home was in any case also Mr QAT's home and Mr MBM was not entitled to access it in this way without Mr QAT's agreement. 87Mr MBM also acknowledges he waited around outside Mrs OLL's family residence and took down the registration details of visitors and carers who came to the house and provided this information to his solicitor. In his submissions and when asked about this at the costs hearing, he said he was entitled to do this to protect himself. He did not acknowledge that this behaviour could be perceived as intimidatory. The Tribunal does not accept that he did not understand this and there is no explanation as to why he might legitimately have needed this information. Mr QAT's submissions characterise this as "stalking" behaviour, designed to intimidate. The Tribunal accepts this conclusion. 88Mr MBM alleges "elder abuse." This consisted of Mr QAT "confiscating" Mrs OLL's bank books, allegedly against her wishes. Mr QAT was his mother's attorney - he was quite entitled to take charge of the bank books and this could hardly be said to be "elder abuse" - an unnecessarily inflammatory (and inaccurate) allegation. 89Mr MBM has brought no evidence to support a claim that Mr QAT had behaved in any untoward way in relation to Mrs OLL's finances. He sought to obtain through these proceedings information to support this claim including information about Mr QAT's own finances. He was not entitled to obtain formation about the financial affairs of any member of the Mrs OLL's family. His misconception in relation to the attorney's duty and his right to information is illustrated by the following paragraph (71) of Mr MBM's submissions There is no evidence from [Mr QAT] that he fully disclosed to his sisters the financial management of [Mrs OLL's] affairs. There is no evidence that he explained the expenditure of [Mrs OLL's] money as submitted in Paragraph 64 (above). 90Not only has he no way of knowing what Mr QAT has or has not explained to his sisters, and that there appears to be little to "explain" about Mrs OLL's affairs in any case, he is not obliged as attorney, to explain anything to his sisters (there is no evidence they had asked for information or been denied it) or to Mr MBM, just because the latter has brought an application to the Tribunal. 91Mr MBM complains that he was not apprised of Mrs OLL's wishes until the hearing and could not, therefore, withdraw his applications until that time. He said these should have been conveyed at the Directions Hearing on 10 June. The Tribunal rejects that submission. It was not incumbent on the Separate Representative to put information about Mrs OLL's wishes before the Tribunal prior to the hearing. Mr QAT was in possession of the medical and other evidence well prior to the hearing, which should have suggested to him that his claims about her care and medical treatment were misplaced. 92In answer to some of the allegations about his behaviour, Mr MBM has claimed that Mrs OLL asked him to do particular things, indicating, he says, that she preferred him to do these things and provide care for her rather than her family members. When Mrs OLL's wishes were conveyed to the Tribunal, it was clear she did not even want him to visit her and she was very firm in her wish that her family continue to care for her and continue to act as her attorney and guardian. The Tribunal does not believe that Mrs OLL's wishes had changed - they are consistent with the evidence of her family and with her own actions in appointing Mr QAT as decision maker for her as long ago as 1994. 93Mr MBM has painted a picture of Mrs OLL as being a prisoner in her own home, her needs and wishes ignored by her family. If Mr MBM did have a belief that here was a real threat to her welfare in her current situation, why were the applications withdrawn simply on the basis of her "wishes" when she lacks capacity? Mr MBM has seen what he wants to see and believed what he wants to believe, without reference to the real situation or the views of anyone else. Why did he not ascertain Mrs OLL's wishes before he lodged the applications, if they were to be determinative of whether he would pursue them? He says that he did not have the opportunity to gain her views before lodging the application because he was prevented from seeing Mrs OLL. However, if he had a realistic appreciation of her situation, how could he have been so wrong about her real wishes? It appears Mr MBM misperceived these as he did many other features of Mrs OLL's situation. 94 Mr MBM dates his difficulties with Mr QAT from a time when the value of Mrs OLL's property became known. The Tribunal accepts Mr QAT's submission that this was not the case and there is no reason why it should be. 95The evidence suggests to the Tribunal that, whilst Mrs OLL was independent and had full capacity, the adult children of Mrs OLL considered it her business with whom she associated and did not seek to intervene at all in Mr MBM coming to the house. They took the view Mrs OLL was an independent person and she could manage any association with Mr MBM, although there is some evidence to suggest that the other members of the Mrs OLL's family did not like Mr MBM particularly and thought it was their mother's politeness which prevented her discouraging him from coming to the house so often. He says that prior to there being carers involved, he had looked after her whilst Mr QAT was at work. It is more likely that prior to her needing professional care, they kept each other company and that he did do such things as fetching newspapers and driving her to appointments. When she needed care, Mr MBM appears to have assisted and again, Mr QAT did not necessarily consider this a problem. 96However, when she became so frail and unwell that she needed professional care, and became unable to assert herself, Mr MBM refused to accept this and his presence at the house became interfering and intrusive. Mr MBM alleges Mrs OLL was "forced to choose" between his care and that offered by professional carers. He refused to accept that Mrs OLL required the professional care arranged by her family. Even then, Mr QAT tried to ensure Mr MBM could visit his mother (his evidence in relation to the AVO proceedings) but Mr MBM refused to acknowledge Mrs OLL's deterioration and cooperate with the family in the treatment and care arrangements - climbing in the window, harassing the carers who came to the house and making allegations of "elder abuse." It is hardly surprising that the relationship between Mr QAT and Mr MBM deteriorated. 97Mr MBM has an unrealistic perception of his own role in Mrs OLL's life. He had known Mrs OLL for a long time. The Mrs OLL's family had provided accommodation for a period when he had needed it. She had clearly trusted him in certain respects - authorising him for instance to take money from her bank account when she could not get out to do so - and asking him to assist - fetching the newspaper and the like - asking him to drive her to appointments. However, his proposals for guardianship and her care are entirely unrealistic in the circumstances. Her son had been her enduring guardian since 1994. He shared a house with her. Her home was his home. Her other adult children were closely involved in her care. She had been in receipt of professional services in her home since 2011. As far as the Tribunal is aware she wishes to stay in her home as long as possible. Mr MBM now proposes to take over her care himself, either in her home or his, in a situation where he is in dispute with all of her children, including her chosen guardian and attorney, her carers have alleged he has interfered in their care and he is unqualified to provide professional care. This is just fanciful. It has understandably caused considerable alarm and stress amongst Mrs OLL's family members. 98Mr MBM claims a genuine interest in Mrs OLL's welfare. His concerns may be "genuine" in the sense that he believed them to be correct but that does not make them genuine in the sense referred to in the Guardianship Act, which requires more than a sincere "belief," unsupported by credible evidence. 99Four months after proceedings were first initiated and less than two weeks prior to the allocated hearing day, Mr MBM filed a fresh application - an application to review the EPOA, made two and a half years previously. It made the same appointment as the EPOA executed in 1994. There is no explanation as to why this application was filed so late in the day. It had the potential to disadvantage the other parties and derail the proceedings, which had been allocated a hearing date. In the event, the Tribunal did not allow the proceedings to be delayed but the applicant's filing of this new application at such a late stage was not consistent with his duty to conduct the proceedings in a way which would ensure their speedy and efficient disposal, with as little cost to the parties as possible (subsections 60(3)(a), (b) and(f) of the CAT Act). 100Mr MBM alleged incapacity for Mrs OLL to have made the EPOA. Not only was there medical evidence on foot which did not support that claim but it was also contrary to Mr MBM's own allegations. He said that he had been asked or directed by Mrs OLL to do certain things - which he presumably thought she had the capacity to do. His allegation about her bank books being taken by Mr QAT so that she did not know the situation in relation to her financial affairs and that this was "elder abuse" was based on her having capacity at that time (also 2012 when the EPOA was made) to manage her financial affairs (Par 61 Mr MBM's submissions). Mr MBM's claims are contradictory on the issue of Mrs OLL's capacity. Mr MBM again, in this application, sought to obtain by summons, information about Mr and Mrs OLL's financial affairs, which he had been unable to obtain in the proceedings to that point. 101In the words of McHugh J in Lai Quin (supra) these proceedings were not "reasonably commenced." The Tribunal agrees with the costs applicant's submission that, pursuant to s 60(3) of the CAT Act, that the applicant's claims had no tenable basis in fact or law (s 60(3)(c)) and were frivolous or vexatious or otherwise misconceived or lacking in substance (s 60(3)(e), in the sense described by Mr Justice Garling in Hopkins (supra). 102Mrs OLL is elderly and frail. She is at the end of her life. According to all of the professional evidence, she is being appropriately cared for by her family members in a home she shares with them. Mr MBM has been intrusive and inappropriate in seeking to intervene in this situation and to usurp the role of her family. The evidence is that he has caused Mrs OLL's family members considerable stress, in what must already be a stressful situation and a difficult period in all of their lives. They were alarmed by his behaviour and sought to protect their mother from his intrusion into the care arrangements. The bringing and maintaining of these proceedings has been a continuation of this pattern of behaviour on Mr MBM's part. 103The Tribunal has concluded that there are, therefore, "special circumstances" in this matter, having regard to the matters set out in s 60(3) of the CAT Act. 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" (Kondos (supra)). Applications of this sort, which are far from being well-motivated and substantial, are to be discouraged. 104The volume and nature of the of material brought by Mr MBM, containing as it did myriad allegations against Mr QAT and the Mrs OLL's family, also made this matter appear more complex and substantial than it really was, and necessitated Mr QAT seeking legal advice and representation with its consequent costs. 105Having determined to make an order for costs on Mr QAT's application, the Tribunal declines to make an order on Mr MBM's application. The quantum of costs to be paid 106Mr MBM has submitted that Mrs QCN was not represented and, therefore, not entitled to seek costs. That is of course correct. However, she was also a witness brought on Mr QAT's behalf and to support his defence of the applications. The preparation of her evidence - or that of any other witness brought by Mr QAT - is a cost to him and, therefore, claimable. 107A quantum of costs has been indicated but the Tribunal is not minded to make an order in any particular quantum and the costs, which are awarded on a party/party basis, are to be agreed or taxed pursuant to the relevant provisions of the Legal Professions 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: 17 December 2014