Australia, Dec. 26 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 13:

1. The appellants, YJV, YVB and YKA are sisters. They seek an order that their brother, YXD (the Brother), be ordered to pay their costs in an "internal appeal" from a decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). The mother of the appellants and the Brother, YJW (the Mother), was the subject of the decision under appeal.

2. The appeal was listed before us for hearing on 22 August 2024 at 10:15. In an email sent to the NCAT Registrar the day before the hearing at 17:16, solicitor, Mr David Allen said that late that afternoon he had been instructed by the Brother that the Mother had died. Attached to that email was a copy of the death certificate which recorded that the Mother had died on 13 July 2024, 41 days earlier.

3. The appellants and their solicitor travelled to Sydney from regional NSW on the eve of the appeal hearing to meet with their lawyers and to attend that hearing. We informed the appellants of their Mother's death at the commencement of the appeal hearing. On learning of that news, they instructed their barrister to withdraw the appeal.

4. In "internal appeals" from decisions of the Guardianship Division each party to proceedings is to pay their own costs. However, the Appeal Panel may award costs if it is "satisfied that there are special circumstances warranting an award of costs".

5. We explain below our reasons for being satisfied that there are special circumstances warranting an award of costs and exercising the discretion to order that the Brother pay the appellants' costs on an indemnity basis.

Statutory framework: s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)

6. Section 60 of the NCAT Act states:

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.

7. Section 60(1) creates the general rule that each party is to pay their own costs. Section 60(2) gives the Tribunal power to award costs upon it being "satisfied that there are special circumstances warranting an award of costs".

8. In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, the NSW Court of Appeal considered the meaning of the term "special circumstances" in s 88(1) of the now repealed Administrative Decisions Tribunal Act 1997 (NSW). While expressed in slightly different terms to s 60 of the NCAT Act, like that provision, s 88(1) of the Administrative Decisions Tribunal Act gave the Tribunal power to award costs "but only if it is satisfied that there are special circumstances warranting an award of costs". At [60], Santow JA held (and Mason P and Brownie AJA agreed) that the Tribunal was in error in failing to conclude that special circumstances applied in that matter. Santow JA observed: "[I]t suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional". That statement has consistently been applied by Appeal Panels of NCAT in determining application for costs under s 60 of the NCAT Act: see for example, Gelder v The Owners - Strata Plan No 38308 [2021] NSWCATAP 109 at [12]; Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107]-[108]; James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 at [6].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193b7d0867b7d08eaabaefec)

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