Australia, June 7 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. On 6 January 2025, for the reasons which were then published, the Appeal Panel dismissed an appeal by YKD against orders made by the Guardianship Tribunal on 9 May 2024.

2. The Appeal Panel ordered that if the First Respondent, YKE, sought any order for costs of the appeal, he file and serve written submissions in support of such application and the quantum of any costs sought on or before 6 February 2025. The Tribunal further ordered that in the event that YKE sought an order for costs, YKD file and serve submissions in opposition to such application on or before 4 April 2025.

3. On 20 January 2025, YKE filed an application for an order for costs in the sum of $2,250 and submissions in support of such application. On 14 February 2025, the YKD filed submissions opposing the making of any order for costs against him.

Dispensing with a hearing

4. Although the orders of the Appeal Panel of 6 January 2025 contemplated that any costs application would be determined on the papers and without a hearing, it is necessary, if the Appeal Panel is to do so, that an order be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) dispensing with a hearing. The Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions made by them, and the Appeal Panel's Reasons for Decision for dismissing YKD's appeal of 6 January 2025. The Tribunal is satisfied that, having regard to their written submissions, neither party opposes an order dispensing with a hearing and that s 50(3) of the CAT Act has accordingly been satisfied.

Costs in Tribunal proceedings

5. Section 60(1) of the CAT Act provides that each party to proceedings in the Tribunal is to pay the party's own costs of proceedings. Section 60(2) however provides that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs". Section 60(3) provides that in determining whether there are special circumstances warranting an award of costs the Tribunal "may" have regard to a number of factors. YKE relies on the provisions of s 60(3)(c) and (e) of the CAT Act:

"(c) the relative strength 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,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance."

6. Section 60(4) provides that, if costs are to be awarded, 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 the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis"

7. Section 60(5) defines "costs" to include a number of matters. If YKE establishes an entitlement to an award of costs, the sum claimed by him comprises matters which fall within the definition of "costs" in s 60(5) of the CAT Act (Malkinson v Trim (2003) 2 All ER 356).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1969f1ce6e146eda5433019b)

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