Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZHH v ZHI (No 2) [2018] NSWCATAP 193 Hearing dates: Final written submissions received 30 July 2018 Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President A Britton, Principal Member M Bolt, General Member Decision: (1) A hearing on the application for costs is dispensed with. (2) The appellant's application for costs is refused. Catchwords: COSTS – whether special circumstances exist – whether Appeal Panel has power to order costs under the Suitor's Fund Act 1951 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Suitors' Fund Act 1951 (NSW) Cases Cited: Berger v Boulder Projects Pty Ltd [2015] NSWCATAP 274 Gaynor v Burns [2015] NSWCATAP 150 ZHH v ZHI [2018] NSWCATAP 107 Category: Costs Parties: ZHH (Appellant) ZHI (First Respondent) ZHJ (Second Respondent) ZHK (Third Respondent) ZHL (Fourth Respondent) Public Guardian (Fifth Respondent) NSW Trustee and Guardian (Sixth Respondent) Representation: Counsel: P Lowson (First Respondent) Solicitors: Konstan Lawyers (First Respondent) File Number(s): AP 17/54163 Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the names of the parties to the proceedings and witnesses in the Tribunal below is prohibited. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 12 October 2017 Before: R Bailey, Senior Member (Legal); C Kennedy, Senior Member (Professional); M Oxenham, General Member (Community) File Number(s): 2017/00196990 REASON FOR DECISION 1. ZHH appealed to the Appeal Panel from a decision of the Guardianship Division of the Tribunal. The Appeal Panel set aside the decision and sent the whole case back to the Tribunal to be reconsidered: ZHH v ZHI [2018] NSWCATAP 107, Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 81(1)(e). ZHH has applied for ZHI, one of the respondents to the appeal, to pay her legal costs. 2. We have decided to hear this application 'on the papers' – that is, without a hearing. We have dispensed with a hearing because we are satisfied that the issues can be adequately determined by considering the parties' written submissions: NCAT Act, s 50. 3. The general rule is that each party pays their own costs: NCAT Act, s 60(1). That rule applies both to the proceedings before the Guardianship Division of the Tribunal and to internal appeals from that Division. The Appeal Panel may award costs only if it is satisfied that there are special circumstances warranting an award of cost: NCAT Act, s 60(2). ZHH submitted that "the nature and complexity of the proceedings" warranted an award of costs: NCAT Act, s 60(3)(d). 4. ZHH said that she engaged legal representation for two reasons. The first reason was that ZHI was legally represented before the Tribunal and the Appeal Panel. We note that ZHI was not given leave to be legally represented before the Tribunal at first instance. His legal assistance was given as a Mackenzie friend. The second reason was that she was required to identify and articulate legal errors on appeal. 5. There was nothing particularly complex about the appeal, however we accept that the nature and complexity of the case was one of the reasons ZHH decided to engage legal representation. The fact that a party feels compelled to engage a lawyer is not a special circumstance warranting an award of costs. If that were the case, any party who justifiably decides to engage a lawyer would be entitled to their costs. 6. ZHH has not pointed to any circumstances which would warrant an award of costs. ZHI was not responsible for the Tribunal falling into error. Nor did his conduct in the appeal unnecessarily disadvantage ZHH. Nor was he responsible for prolonging unreasonably the time taken to complete the appeal: ss 60(3)(c), 60(3)(d). We agree with him, that there is no basis on which he should be required to pay ZHH's legal costs of the appeal. 7. Alternatively, ZHH submitted that the Appeal Panel should recommend that the Secretary of the Department of Justice pay her costs because payment is "within the spirit and intent" of s 6 of the Suitors' Fund Act 1951 (NSW). ZHH acknowledges that the Suitors' Fund Act does not apply to internal appeals heard by NCAT but only to appeals to the Supreme Court, the High Court, the Industrial Relations Commission of New South Wales, the District Court of New South Wales or the Land and Environment Court: s 6 of the Suitors' Fund Act, Gaynor v Burns [2015] NSWCATAP 150, at [61], and Berger v Boulder Projects Pty Ltd [2015] NSWCATAP 274, at [43]. 8. ZHH relies on s 6C of the Suitors' Fund Act which is headed, "Payments not otherwise authorised by this Act". 6C PAYMENTS NOT OTHERWISE AUTHORISED BY THIS ACT (1) If: (a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings, (b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and (c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections, the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case. (2) A payment under this section shall not exceed $10,000. 1. This provision gives the Director General in certain circumstances the power to pay the costs of a party from the Suitors' Fund. It does not give a corresponding power to the Appeal Panel. Orders 1. A hearing on the application for costs is dispensed with. 2. The appellant's application for costs is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 09 August 2018