The general rule is that each party to proceedings in the Tribunal is to pay the party’s own costs. However, the Tribunal may award costs if it is satisfied that there are “special circumstances” warranting an award of costs (NCAT Act s 60(1) and (2)). In determining whether there are special circumstances, the Tribunal may have regard to the matters specified in s 60(3) of the NCAT Act.
Applications for costs in protective jurisdiction matters are uncommon and the Guardianship Division does not regularly make costs orders (see Guardianship Division Procedural Direction 1: Costs, cl 18).
Establishing “special circumstances”
However, there are cases where parties are able to establish “special circumstances” and obtain an order for costs in their favour. Some of the most common grounds on which the Tribunal may find special circumstances are:
- A repeated failure to follow directions of the Tribunal;
- The claim frivolous, vexatious, or lacking in substance;
- The party motivated by an improper ulterior motive (or a collateral purpose).
Some examples
S 36(3) of the NCAT Act requires parties to comply with directions of the Tribunal. Failures to comply with directions that are more egregious than a mere transgression, or that result in other parties incurring unnecessary costs, may open the door to a finding of special circumstances justifying a costs order (ZLX v ZLY [2019] NSWCATAP 273, [29]).
An appeal brought by a party against a finding of the Tribunal on the basis of procedural fairness arising as a result of the Tribunal members allegedly constantly interrupting the application during the hearing was found to be “tenuous at best” (ZKS v ZKT [2019] NSWCATAP 72, [27]). The Tribunal rejected the contentions by the costs applicant that the claim was brought for a collateral purpose, namely to prevent T&G’s investigation into a series of withdrawals from the subject person’s account. While T&G had no evidence in support of this contention, it is likely that if the allegation could be proved by some relevant evidence, it would give rise to special circumstances.
In the matter of OLL [2014] NSWCATGD 40 the Tribunal considered the issue of costs. In particular, the Tribunal found that it was 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.”
The Tribunal concluded that the application brought was so lacking in substance and in the context of intrusive and intimidating behaviour towards the person concerned and his or her family. The behaviour in this case was found to be “extreme” and that 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”.
How Carneys can help
If you find yourself involved in proceedings in Guardianship Division, it is worthwhile getting expert legal advice to guide you through the process. The issue of costs is one small piece in the puzzle of successfully navigating the Guardianship Division, and Carneys Lawyers’ estate lawyers are highly experienced in all aspects of Tribunal proceedings.
