Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: AHB v NSW Trustee and Guardian [2014] NSWCA 216
• Hearing dates: 18 June 2014
• Decision date: 07 July 2014
• Before: McColl JA at [1]; Basten JA at [2]; Meagher JA at [4]

Decision

(1) Appeal dismissed.

(2) No order as to the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - appeal against decision of Appeal Panel upholding Administrative Decision Tribunal's decision to confirm respondent's decision as financial manager of protected person's estate to sell family home - appeal grounds involve no question of law - no question of principle; COSTS - exercise of discretion - whether costs should follow event that appeal dismissed - respondent part of executive government and subject to Model Litigant Policy - decision which was subject to appeal not acted upon and no longer relevant - appellant litigant in person - no attempt by respondent to avoid need for hearing of appeal - failure to adhere to requirement of Policy - departure from ordinary rule justified
• Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW), ss 36, 38, 55, 112, 113, 115, 119; Aged Care Act 1997 (Cth), s 22-1; Civil Procedure Act 2005 (NSW) ss 56, 98; Court Suppression and Non-publication Orders Act 2010 (NSW), s 7; Guardianship Act 1987 (NSW), ss 14, 16, 25E, 25G, 25M, 57; NSW Trustee and Guardian Act 2009 (NSW), ss 6, 39, 62; NSW Trustee and Guardian Regulation 2008 (NSW), cl 43; Uniform Civil Procedure Rules, rr 7.14, 7.15, 36.16
• Cases Cited: AHB v NSW Trustee and Guardian [2012] NSWADT 76; Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201
• Category: Principal judgment
• Parties: Applicant (Self-represented); NSW Trustee and Guardian (Respondent)
• Representation: Counsel: Applicant (Self-represented); JS Emmett, A Russoniello (Respondent); Solicitors: Applicant (Self-represented); IV Knight, Crown Solicitor (Respondent)
• File Number(s): 2013/286294

Decision under appeal

• Jurisdiction: 9113
• Citation: AHB v NSW Trustee and Guardian [2012] NSWADTAP 37
• Date of Decision: 2012-08-08 00:00:00
• Before: N Hennessy Deputy President,; L Goodchild Judicial Member,; B Thomson Non-Judicial Member
• File Number(s): 129011

Judgment

1 McCOLL JA: I agree with Meagher JA's reasons and the orders his Honour proposes. I also agree with Basten JA's observation.

2 BASTEN JA: I agree with Meagher JA.

3 There is one additional matter worth noting. For the respondent to maintain the decision under review without reconsideration, in reliance upon a circumstance which existed in 2011, namely that the protected person's ongoing liabilities exceeded her income, would be to ignore the more recent recognition by the Public Guardian of the view of the protected person that she would not wish to render her son homeless. Undoubtedly financial exigencies may prevent such a wish being fulfilled. However, for the respondent to ignore the wish in changed circumstances as to the need for sale of the home would raise a serious question as to the respective roles of the respondent and the Public Guardian. It is not an issue which presently arises for determination and therefore need not be pursued.

4 MEAGHER JA: This proceeding as finally formulated before this Court is an appeal from a decision of the Appeal Panel of the Administrative Decisions Tribunal (Appeal Panel): AHB v NSW Trustee and Guardian [2012] NSWADTAP 37. The appellant, throughout the prosecution of that proceeding, has been self-represented. In the proceedings below and in documents filed in this Court he is referred to as AHB. As I understand the position, this has been done to prevent the identification or likely identification of his mother who is a person under guardianship: see s 57 of the Guardianship Act 1987 (NSW) which, except in limited circumstances, prohibits the publication of the name of a person to whom any proceedings before the Guardianship Tribunal relate without the consent of Tribunal. For that reason it is convenient to continue to refer to him by the pseudonym AHB. Accordingly, to prevent prejudice to the administration of justice, an order should be made under s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the appellant in these proceedings be referred to by the pseudonym "AHB".

5 The appellant's mother, whom I will refer to as the protected person, is 89 years of age and suffers from dementia. In 2010 the Public Guardian was appointed as her guardian and, at the same time, a financial management order was made appointing the respondent as manager of her estate. Those orders were made under the Guardianship Act 1987 (NSW): see ss 14, 16, 25E and 25M. From November 2009, the protected person became a resident at the Wollongong Nursing Home. In September 2011, the Public Guardian formed the view that she should be accommodated in a nursing home which provided additional nursing services to those then being provided.

6 On 11 September 2011 Ms Tamblyn, the Assistant Director, Client Services, of the respondent, wrote to the protected person advising that as her financial manager a decision had been made on her behalf to sell her home at Gymea Bay. One of the reasons given for that decision was the Public Guardian's view that she "would benefit from a more suitable placement in an extra care facility".

7 The appellant lives in that home and was living there and caring for his mother for at least three years before her admission to the Wollongong Nursing Home in November 2009. He requested a review of the respondent's decision. On 7 October 2011 the respondent confirmed that decision. The appellant then applied to the Administrative Decisions Tribunal (Tribunal) for a review of that decision: see s 62(3)(c) of the NSW Trustee and Guardian Act 2009 (NSW), cl 43 of the NSW Trustee and Guardian Regulation 2008 (NSW) and ss 36, 38 (both since repealed) and 55 of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act, now the Administrative Decisions Review Act).

8 On 27 April 2012, the Tribunal affirmed the respondent's decision: AHB v NSW Trustee and Guardian [2012] NSWADT 76. The appellant then appealed from that decision to the Appeal Panel under s 112(1) of the ADT Act. In a short judgment delivered on 8 August 2012, the Appeal Panel dismissed that appeal and affirmed the decision of the Tribunal: AHB v NSW Trustee and Guardian [2012] NSWADTAP 37.

9 Under s 119 of the ADT Act, the appellant had a right to appeal to this Court, on a question of law, against that decision of the Appeal Panel. He commenced the current proceeding in September 2012 in the Common Law Division as a proceeding claiming prerogative relief. He then filed three documents, each of which described itself as an amended summons. Two were filed in the Common Law Division. The last was filed in the Court of Appeal in December 2013 and described the proceeding as an appeal from the earlier decision of the Appeal Panel, brought by the appellant as tutor for his mother. There were difficulties under the relevant procedural rules with the appellant purporting to act as his mother's tutor. He might be said to have an interest in the proceedings which was adverse to that of his mother, the proceedings were not brought by a solicitor and were brought in circumstances where the respondent had management of his mother's estate but was unable to act because it was named as respondent to the appeal: see Uniform Civil Procedure Rules, rr 7.14(1), 7.15(2), (3) and (4). However, as the matter proceeded in this Court, the respondent did not object to it being treated as an appeal brought by the appellant who was a proper party to the proceedings before the Appeal Panel, and accordingly entitled to bring the appeal: s 119(1) of the ADT Act.

10 Before identifying and dealing with the grounds of appeal relied upon by the appellant, it is convenient first to summarise the reasons for decision of the Tribunal, and the short reasons of the Appeal Panel for dismissing the appeal from the Tribunal's decision.

The decision of the Tribunal

11 The question for the Tribunal was whether on the material before it the respondent's decision as the protected person's financial manager appointed under s 25M(1)(a) of the Guardianship Act was the correct and preferable one: s 63(1) of the ADT Act. That decision was made in circumstances where the Public Guardian had been appointed guardian with responsibility for the limited functions of access and accommodation and, in September 2011, decided that the appellant's mother should be accommodated in an "extra services" nursing home. In that context the question arose whether the home should be sold. The Tribunal summarised (at [5]) the basis for the respondent's decision as follows:

"The decision was based on the view, taken by the Public Guardian, that the protected person should be accommodated in an extra services nursing home. This would require the payment of a bond. Given her assets and income, the financial manager reasoned that the only way in which a bond could be paid and the protected person's future secured, is by the sale of her home."

12 Before the Tribunal, the appellant did not disagree that his mother should be accommodated in a nursing home with additional nursing services, at least in the short term: [2012] NSWADT 76 at [5], [11]. His view, however, was that developments in the treatment of dementia might lead to a situation where at some stage in the future his mother would be well enough to return home: [10]. It was also common ground that for his mother to be accommodated in such a nursing home would involve the payment of a bond. (The nursing home favoured by the appellant required payment of a bond of approximately $350,000: [11]). As is recorded above, the respondent considered that the only way in which such a bond could be paid was by way of sale of her home. The appellant's position was that whilst he continued to live in the home other rooms could be rented out so as to generate income sufficient to pay the fees at the extra services facility: [13]. At the same time, he proposed that the amount of any accommodation bond be borrowed: [16].

13 The respondent maintained that this proposal was not feasible. As recorded by the Tribunal at [18], the respondent's view was:

"The protected persons [sic] income is limited. The financial manager has difficulty meeting her current expenses. She could not afford to repay any loan at the end of term, other than by selling the house, and would lose a considerable amount in interest paid and potential income foregone. The proposal that AHB let out the house on a shared accommodation basis offers her no surety of income, is reliant on him, and he can offer no method of covering any short fall in rental income."

14 In opposing any decision to sell the home, the appellant also pointed out that his mother's expressed views were that it should be retained. In support of that position, he produced recordings which had been made of discussions between his mother and him about that subject: [14].

15 The Tribunal considered these various arguments noting that, when exercising the functions conferred on the respondent with respect to the financial management of the protected person's estate, it was required to observe the principles in s 39 of the NSW Trustee and Guardian Act. Those principles include:

"(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 ... should be recognised,

..."

16 The Tribunal undertook an analysis of the protected person's financial position both on the basis that she remained where she was and on the basis that she moved into an extra services nursing home; the latter on the basis that it would require the payment of a bond and involve increased monthly expenses. The protected person's assets consisted of the Gymea Bay property with an estimated value of $750,000, a loan made to one of her two adult daughters, in relation to which approximately $128,000 remained outstanding, and an amount of about $13,000 then held in the respondent's trust account. Her income, including her State Superannuation pension and Workers Compensation benefits and monthly loan repayments received from her daughter, just exceeded her existing nursing home fees. However, when outgoings on the home and her ongoing chemist and medical expenses were taken in to account, her income was insufficient to meet her expenses and the moneys held on the trust account were being used to meet the shortfall.

17 On the basis of this analysis, the Tribunal concluded at [30]:

"Even if she remains where she is, rather than moving to an extra services nursing home, the situation will clearly reach a point where all her liquid assets will be consumed. There is therefore a need to either sell her principal asset (her home) or use it to generate sufficient income to meet her expenses. If she is to move to an extra services facility, in order to pay the bond, the home will either have to be sold or used as security for a loan."

18 The Tribunal then addressed whether, accepting that it was in the protected person's best interests to move to an extra services nursing home, the correct and preferable decision, to enable that to occur, was to sell the home. In doing so, the Tribunal took into account the following matters: that the appellant and the respondent agreed that such a move was in his mother's best interests: [37]; that from a financial perspective, the Tribunal's view was that her interest and welfare would be better secured if the house was sold which would enable her to move to the extra services facility: [48]; that whilst the sale of the home would deprive her of the freedom of being able to return to it, the reality was that she had dementia, that she had been in an aged care facility for two years and that her condition was unlikely to improve: [49]; that the appellant would be directly and adversely affected by any decision to sell the home because he had been living there rent-free for a number of years: [50]; that the decision to sell the home would not affect the ability of the appellant and his two sisters to visit their mother and maintain family relationships or change the level at which she was presently participating in the more general community outside the nursing home: [51]; that whilst the appellant's mother undoubtedly would like to keep the home, her wish or desire to that effect should give way to a more considered assessment as to whether it should be sold taking into account her needs, financial resources and the various other options available: [52]; and that whilst she had expressed views that the home should be kept, it was not shown that she had formed, or was capable of forming, such a considered opinion which had regard to those various matters: [52].

19 The Tribunal concluded at [53]:

"Taking into account all these factors, and the principles in s 39 of the NSW Trustee and Guardian Act 2009 I agree that the correct and preferable decision is to sell the protected person's property at Gymea Bay.

The decision of the Appeal Panel

20 The appellant appealed from the decision of the Appeal Panel on three grounds. The first was that his mother had the legal capacity to make the decision whether or not to sell her home and that the Tribunal was wrong in assuming that she did not have that capacity. In order to make the financial management order, the Guardianship Tribunal had to be satisfied that the appellant's mother was not capable of managing her own affairs: Guardianship Act, s 25G. As the Appeal Panel observed, the question whether that order was correctly made or should be reviewed was not an issue before the Tribunal. On that basis the Appeal Panel correctly rejected this ground: [2012] NSWADTAP 37 at [5].

21 The second ground relied upon was that the Tribunal did not take into account the principles stated in s 39. In particular, the appellant argued that the principles in paragraphs (b) and (d) had not properly been taken into account. Referring to the Tribunal's decision at [2012] NSWADT 76 at [52], [53], the Appeal Panel concluded that it had taken those principles into account, and in particular those in paragraphs (b) and (d).

22 The third ground of appeal related to the appellant's challenge to the merits of the Tribunal's decision. The Appeal Panel could have granted leave to extend the appeal to a review of the merits of the Tribunal's decision: s 113(2) of the ADT Act. In that event the Appeal Panel was to decide what was the correct and preferable decision having regard to the material before it: s 115 of the ADT Act. The Appeal Panel refused that leave on the basis that the decision of the Tribunal was the correct and preferable one in light of the evidence before it. The appellant did not seek to put before the Appeal Panel any material which was relevant to the merits or otherwise of the decision under review. He accepted that if an accommodation bond of $350,000 was required to enable his mother to move to an extra services facility, he would be unable to finance such an amount even if permitted to rent rooms in the home.

23 Before the Appeal Panel the appellant raised a further possibility for the ongoing care of his mother. He proposed that his mother be assessed for Extended Aged Care at Home (EACH) funding under s 22-1 of the Aged Care Act 1997 (Cth). The availability of that funding may have enabled his mother to return home and to be provided with services which would allow her to remain there. This matter was not the subject of evidence before the Tribunal and involved a course of action different from that determined by the Public Guardian, which formed the basis for the Tribunal's decision. For those reasons it was not relevant to the subject matter of the appeal to the Appeal Panel and did not justify a grant of leave extending the appeal to a review of the merits of the Tribunal's decision.

The appeal to this Court

24 The amended summons does not contain grounds of appeal that identify any question of law in relation to which it is said there was error on the part of the Appeal Panel. Instead it contains an argument that partly addresses the merits of the underlying decision and more generally addresses the question whether the home should be sold, taking into account matters which have occurred since the Appeal Panel's decision in August 2012. It is necessary to deal with each of the arguments raised.

25 First, the appellant contests the Tribunal's conclusion that it was not satisfied that his mother's express desire that the house not be sold was a reasoned and considered decision. That conclusion was as to a matter of fact which could not be challenged on the appeal to the Appeal Panel in the absence of leave extending the appeal to a review of the merits. Accordingly, the Appeal Panel did not err in not addressing that question. Secondly, the appellant says that the Appeal Panel repeated that factual error in its own reasoning. That is not correct. The Appeal Panel, when addressing whether the Tribunal had taken into account the views of the protected person, as it was required to do by s 39 of the NSW Trustee and Guardian Act, referred to the Tribunal having taken account of her express desire that the home not be sold. That involved no error on any question of law on the part of the Appeal Panel in concluding that the Tribunal had not failed to address s 39.

26 Thirdly, the appellant submitted that the officer of the respondent principally involved in the decision made in September 2011, Ms Tamblyn, had asserted wrongly that leasing the property to provide income for the protected person was not consistent with the rationale put forward by the appellant for keeping the property which was eventually to enable his mother to return home. Whether this analysis was justified or involved any factual error does not matter for the purposes of the appeal. The decision with which the Appeal Panel was concerned, and only then in relation to questions of law, was the decision of the Tribunal, not that of the respondent which was reviewed by the Tribunal.

27 Fourthly, the appellant refers to events occurring after the decision of the Tribunal and, in some cases, after the decision of the Appeal Panel which are said to be relevant to the question whether the home should be sold. The matters that the appellant refers to include a report prepared by the Public Guardian for the purposes of a guardianship review hearing in October 2012. That report, dated 16 October 2012, indicated an apparent change in the position of the Public Guardian with respect to whether the appellant's mother should remain living at Wollongong Nursing Home or move to some other facility. In particular, that report noted:

"The Public Guardian has not made a decision regarding any future move as this is dependent on [X's] property in Gymea Bay being sold. If funds had been available, the Public Guardian would possibly have made a decision to move [X] to an 'added services' facility early in the initial period of the Public Guardian's appointment. However, in considering a future accommodation decision, the Public Guardian would have to weigh up the advantage to [X] of moving versus the effect of such a move on her level of confusion and orientation.

The Public Guardian is not aware of the needs of [X's] son, [AHB]. In one of many discussions the Public Guardian has had with the Trustee, the Public Guardian has voiced a concern [AHB's] need for accommodation as he is living in the Gymea Bay home and would be rendered homeless on the sale of the property."

28 These matters are not relevant to the correctness or otherwise of the Appeal Panel's decision, either generally or with respect to any question of law. However, it will be necessary to refer to them in the context of the respondent's application for the costs of the appeal.

29 Finally, the appellant contended that the Appeal Panel should not have confirmed the Tribunal's decision whilst there remained a real possibility that his mother may be able to return to live in her home with 24 hour carer assistance and EACH funding. As I have observed already, the events concerning this matter occurred in and after August 2012, well after the hearing before the Tribunal in February of that year. The Appeal Panel did not err in concluding that this matter was not one for the Appeal Panel to address because it was not relevant to the making of the September 2011 decision of the respondent which was the subject of review by the Tribunal.

30 None of these matters identifies any error with respect to a question of law on the part of the Appeal Panel. It follows that the appeal to this Court must be dismissed.

Costs

31 The respondent seeks an order that the appellant pay its costs of the appeal. The discretion to award costs is given by s 98 of the Civil Procedure Act 2005 (NSW) and is to be exercised in accordance with Part 42 of the Uniform Civil Procedure Rules. Ordinarily, an order in the terms sought by the respondent would be made to reflect the event that the appeal has been dismissed. There are, however, aspects of the way in which this matter came on for hearing more than two years after the relevant decision which require further consideration.

32 The appellant has represented himself in the proceedings in this Court. Those proceedings were commenced in September 2012 and transferred to the Court of Appeal in September 2013, two years after the relevant decision. At that time two things were or should have been readily apparent to the respondent. The first was that whilst the appellant was having difficulty in formulating the basis of his challenge to the decision of the Appeal Panel, his primary concern was to prevent, if at all possible, the respondent from acting on its decision made in September 2011 to sell his mother's house. The second was that the circumstances in which that decision was made might change. If they did, the outcome of the appeal may become irrelevant because of the need to revisit the subject matter of the earlier decision in light of the changed circumstances.

33 In early 2014, the appellant made an application to the Guardianship Division of the Civil and Administrative Tribunal of New South Wales (NCAT) for a review of the guardianship order made in respect of his mother. On 28 February 2014, NCAT directed the Public Guardian to provide an updated report in relation to decisions made on the protected person's behalf since 24 October 2012.

34 The appeal proceedings were listed for hearing before this Court on 5 March 2014. On that day there was no appearance by or on behalf of the appellant. By an email communication to the Registrar of the Court, he sought an adjournment relying on a medical certificate which the Court (Macfarlan, Gleeson and Leeming JJA) described as "inadequate to establish his unfitness to attend the hearing today". In the context of considering whether an adjournment should be granted, the Court was informed on behalf of the respondent that there was a possibility that the appeal might become otiose "if certain things happened before the Guardianship Tribunal and the Trustee changed its decision". In its short reasons delivered on that application, the Court noted "from the nature of the matter before the Guardianship Division [that] the present appeal may become otiose as a result of the decision made there concerning the protected person's future care and accommodation".

35 On 19 March 2014, the Public Guardian provided a report in accordance with NCAT's direction. That report includes the following in relation to the current position:

"However [the move to an 'added services' facility] was never made as her home has not been sold. The Public Guardian has since come to the view that, as there had been a long delay in selling her home, and in the intervening time [X] had deteriorated, she would only be distressed and confused by a move to another facility and now lacks the capacity to enjoy the benefits of such a move.

The Public Guardian has advised the Trustee and Guardian of this and of the Public Guardian's belief that [X] would not want her son, [AHB], rendered homeless and would want him provided for as there was evidence that she had supported all three of her children in earlier times."

36 This report records a material change in the position of the Public Guardian concerning two matters. The first was its view (which formed the basis of the respondent's decision of September 2011) that the appellant's mother should be accommodated in an extra services nursing home. The second was the statement of its belief that she would not want her son left homeless. The report also shows that the respondent was made aware of these changes in the Public Guardian's position.

37 The evidence before this Court showed that the appellant forwarded a copy of that report by registered post to the respondent on about 28 April 2014, together with a letter which included the following request:

"... I ask you to review your decision to sell my mother's home in order to raise a bond to relocate my mother to another nursing home. A copy of the Public Guardian's decision that my mother should not now be relocated to another nursing home is included with this correspondence."

38 That letter concluded by requesting an acknowledgement from the respondent that there was no longer a need to sell the house in order to raise the substantial bond required to move the appellant's mother to another nursing home.

39 By the end of March 2014, it must have been apparent to the respondent that the decision which was the subject of the appeal had been overtaken by subsequent events. There had been material changes in the circumstances on which it was based and the appellant had requested that a further decision be made in light of the Public Guardian's current position.

40 That being the case, the question is whether the respondent should have taken steps to avoid the need for a hearing of an appeal, the outcome of which was almost certainly irrelevant, except perhaps as to any question of costs. Section 56 of the Civil Procedure Act identifies the "overriding purpose" of that Act and the rules to be to facilitate the "just, quick and cheap resolution of the real issues in the proceedings" and imposes a duty on the parties to assist the Court to further that purpose, including by participating in the processes of the Court and complying with its directions and orders.

41 There is no question in this case of the respondent not having complied with any particular order or direction of the Court. However, the respondent is a New South Wales Government agency: s 6 of the NSW Trustee and Guardian Act. As such, it is a part of the executive government and should conduct itself, in relation to litigation, in the manner expected of the executive. The relevant principles are discussed in the judgment of Basten JA (Giles and Bell JJA agreeing) in Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201 at [16]-[20]. Broadly speaking, they require that the executive government act fairly and in a way which assists the Court to arrive at the proper and just result. Consistent with that being the position, the State has adopted a Model Litigant Policy which requires that it and its agencies act honestly and fairly in handling litigation including by endeavouring to avoid litigation where possible and, if that is not possible, by attempting to keep the costs of litigation to a minimum.

42 In the course of oral argument the appellant informed the Court that in the latter part of 2013 the respondent had offered to resolve the appeal proceedings on the basis that there be no order as to costs. There is no material before the Court indicating the basis on which that offer was made. The respondent having resisted the appeal, it may be assumed that there was no indication that the decision under review would be reconsidered. Nor did the respondent take that position when the issue of costs was raised in the course of oral argument. Rather, counsel for the respondent stated that "one thing to bear in mind is that the current reason for selling, that is liabilities exceed income, was a significant matter the first time around, so to that extent considerations are the same": Tcpt, 18/06/14, p 16 (40).

43 Absent detailed evidence, the correctness of that proposition is doubtful. While the material before the Court did suggest that expenses exceeded income, the annual deficit was not shown to be such as would require the sale of the protected person's home. An obvious alternative which permitted the house to be retained was to fund any annual shortfall by borrowings secured by mortgage over the property. Furthermore, it is clear from the reasons set out above that the mere existence of that annual shortfall was not the basis on which the decision under review was justified before the Tribunal: see [11] above.

44 There was a debate in the course of the hearing as to whether the respondent had received a copy of the Public Guardian's Report dated 18 March 2014. The applicant proffered a postal receipt as evidence that he had sent a copy to the respondent on 28 April 2014. Counsel for the respondent sought instructions on the basis that the question was whether a copy had been received from the applicant on or about 28 April 2014. After obtaining instructions, he responded, at Tcpt, p 20 (15)):

"If it was received it didn't make it to the legal division, who are the people who provide instructions in these proceedings. It may well have been received by my client and if that postal receipt is tendered, I won't be tendering anything in response to it, but I can't say that it is common ground."

45 That was not a satisfactory response with respect to a document sent by registered post some six weeks before the date of the hearing. In any event, that did not resolve the problem. As is observed above, the Report stated that the Public Guardian "has advised the Trustee and Guardian" of its belief that the protected person would not want her son rendered homeless, and of the reversal of its earlier decision that the protected person should be removed to other accommodation. In other words, those within the respondent responsible for decision-making were aware of these material changes in the Public Guardian's position well before receipt from the appellant of the March Report.

46 The model litigant policy is directed to the decision-making arm of the executive and not merely its "legal division". Here the inference which must be drawn is that the decision-makers within the respondent did not communicate to its legal representatives the fact that there had been a significant change to the circumstances in which the challenged decision had been made and that they had been requested by the appellant to reconsider the earlier decision. That communication should have occurred and there should have been a reassessment of the need to continue litigation concerning a decision which was no longer relevant. These omissions involved a failure on the part of the respondent to adhere to the requirements that it endeavour to avoid litigation and to keep the costs of litigation to a minimum. That failure should be taken into account in the exercise of the discretion as to costs. It justifies a departure from the ordinary rule that costs follow the event.

47 While the failure of the respondent to comply with the model litigant policy might be a reason for depriving the respondent of its costs from some date, probably in early March, when it received advice from the Public Guardian as to the change in circumstances regarding the accommodation for the protected person, that would not of itself justify a refusal to make an order as to costs incurred prior to that date. There is, however, a further factor to be taken into account. The respondent presently has a costs order in its favour with respect to the costs thrown away by the order vacating the first date on which the matter was fixed for hearing, namely 5 March 2014. The applicant, in seeking the adjournment, had provided a medical certificate to the Registry. The Court adjourned the matter, in the absence of the applicant, but ordered that he pay the costs thrown away on the basis that the medical certificate supplied to the Registry was "inadequate": see at [34] above. At the hearing on 16 June, the applicant sought to tender a more detailed medical report explaining his ill health on the earlier date. Because no challenge had been made (prior to oral argument) to the order made by the first court, the evidence was not admitted. However, the order having been made in the absence of the applicant, even if it had been entered, the Court had power to set aside or vary the order: Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2).

48 It is in the interests of the just, quick and cheap administration of justice that these proceedings not be extended by further disputation as to relatively minor amounts of costs. On the basis that the applicant not be permitted to reopen that earlier adverse costs order, the respondent should forego any order it might otherwise seek with respect to costs incurred prior to early March 2014 and not covered by the costs order it presently enjoys.

49 Accordingly, the orders I propose are that the appeal be dismissed and that there be no order as to the costs of the appeal.

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Decision last updated: 07 July 2014