Amirbeaggi v NSW Self Insurance Corporation

NCAT Appeal Panel|2023-11-24

Summary

On 17 August 2023, I dismissed an application for a stay brought by the appellants and gave reasons: Amirbeaggi v NSW Self Insurance Corporation [2023] NSWCATAP 230 ('Primary Decision' or 'PD'). Notwithstanding my opinion, expressed in those reasons, that the issue of costs of the application for a stay might be best addressed on the basis that there be no order made as to costs, the respondent took up the opportunity to make submissions seeking its costs of the application and the appellants responded. The parties had the opportunity to object to my dealing with the issue on the papers. Neither did. I will dispense with a hearing as I am satisfied the matter can be adequately dealt with on the material lodged.
For the reasons set out below, I have decided to order that the appellants pay the respondent's costs of the application on the ordinary basis.

Background

In dismissing the application for a stay, I was satisfied that the application was ill-conceived as: 1. the orders that were appealed and sought to be stayed had no prospective effect: PD at [26]; 2. the orders the appellants proposed should be stayed simply amended an earlier timetable they had not complied with, meaning a stay of those orders would be of no benefit to them: PD at [27]; 3. the appellants had apparently failed to come to grips with the meaning of the orders they challenged and sought to stay: PD at [29]; and 4. the appellants had not demonstrated significant prejudice if the orders were not stayed in any event: PD at [30] - [32].

The parties' submissions

The respondent, in seeking its costs, submits that costs are a procedural issue and the appellants submitted to the Tribunal's costs jurisdiction when filing the Application.
The respondent recognises what was said by Leeming in Wilson, at [5] that: "If, say, the Appellant had failed to obtain interlocutory relief before NCAT appreciated that the proceedings were outside its jurisdiction, and NCAT had ordered that the Appellant pay the respondent's costs on that issue, the power to order costs would not be available and any order NCAT might make would be liable to be set aside. The granting or the refusal of interlocutory relief is part of the same "matter", jurisdiction in respect of which may not be conferred upon NCAT, and likewise the power to order costs as a consequence of determining that part of the matter is unavailable. But that does not preclude the order made in the present case by NCAT constituted by the Senior Member."
However, it also refers to Wilson at [3] and [4], where Leeming JA stated: "Some proceedings commenced in NCAT, including those commenced by Mr Wilson, may not be determined on their merits for constitutional reasons. In such proceedings, any substantive orders NCAT might make are liable to be set aside for want of jurisdiction. However, the fact that the proceedings cannot be heard and determined on their merits by NCAT does not mean that NCAT is denied power to order Mr Wilson to pay the respondents' costs, in an appropriate case, of and incidental to the jurisdictional issue. So far, I am in agreement with White JA. However, respectfully taking a slightly broader approach than his Honour, I consider that the implied limitation upon State legislative power does not confine the power to award costs of proceedings which are dismissed or removed for want of jurisdiction to the costs of and incidental to the jurisdictional issue. In an appropriate case, if an Appellant has wrongly invoked NCAT's jurisdiction and has also otherwise so conducted himself or herself as to warrant a special costs order, then such costs may be ordered at the same time as the proceedings are dismissed. In my view, where the implied constitutional limitation bites is to prevent costs orders which are consequent upon or linked to the adjudication of aspects of the matter which are in federal jurisdiction."
The respondent submits this is such "an appropriate case" where the Tribunal should be comfortable in making orders as to costs and such an order is not consequent upon or linked to the adjudication of aspects of a matter in federal jurisdiction. It relates to the extant proceedings in the Consumer and Commercial Division.
Further, the respondent submits that the Tribunal has power to award costs even if it ultimately found that it did not have jurisdiction to determine other relief, citing In The Trust Company Ltd v Diamond Certification Laboratory of Australia Pty Ltd [2016] NSWCATAP 63, at [30], where that Appeal Panel stated: "The costs power granted to the Tribunal is accordingly broad, and the Appeal Panel is satisfied the power to award costs is not dependent upon whether or not the Tribunal finds that it has jurisdiction to grant any relief: rather, the power arises because proceedings have been brought before the Tribunal. This fact of itself is the criteria upon which a court is empowered to make an order for costs. For further consideration see Doula Spirit Pty Ltd v Andrew Argyrou [2014] NSWCATAD at [227]."
In short, the Respondent submits that: 1. costs should follow the event and the Tribunal has costs jurisdiction; 2. the matters raised at paragraph PD [13] dismissing the stay application do not prevent a costs order; and 3. it should have its costs.
The appellants, in response, submit that upon the filing of their Amended Points of Claim, the Tribunal ought to have known and determined that it did not have jurisdiction. After that point in time, every further decision or order made was without jurisdiction which would infect the making of any costs order as sought by the respondent.
The appellants raise that they have initiated proceedings before the Supreme Court of NSW, in which the Tribunal appears, seeking prohibition on the Tribunal making any further order other than determining whether the proceedings should be transferred to a court.
Cavilling with my decision, they submit that I ought to have recognised that the jurisdiction of the Tribunal is in question, that the Tribunal was reserved on an application for transfer (grounded upon a lack of jurisdiction) and stayed the operation of the decision to timetable the proceedings in the Tribunal. They say that they have sought to appeal my decision to the Supreme Court of NSW, and that application for leave remains extant. In those circumstances, they submit that I should not make any further order, other than to, potentially, reserve the issue of costs.
As the appeal does not concern a monetary sum, to attract the application of rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules), the appellants submit that special circumstances warranting an order as to costs needs to be demonstrated by the respondent: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 60.
The appellants submit that there are no special circumstances within the meaning of section 60(2) of the NCAT Act and they have not engaged in any conduct (including that described in section 60(3) of the NCAT Act) that would attract the operation of section 60(2) of that Act.
They submit there is no basis for the making of an order for costs, and such an order would unfairly penalise them, and result in a further appeal to address the making of such an order in circumstances where the issue of jurisdiction of the Tribunal is reserved in three separate proceedings (i.e., before Senior Member Robertson SC in HB 22/30996, before the Appeal Panel in 2023/00213688, and before the Supreme Court of NSW).
In reply, the respondent submits the appellants' submissions on costs serve as a distraction and do not address the relevant considerations. Only the appellants are to blame for the multiplicity of proceedings and overlapping applications. This amounts to special circumstances within the meaning of section 60 of the NCAT Act, at least because the application was: 1. frivolous; 2. contrary to the appellants' obligations under s 36 of the NCAT Act to cooperate in the just, quick and cheap resolution of the real issues in dispute; and 3. the underlying proceedings seeks damages exceeding $30,000. The discretion at large applies pursuant to r 38 of the Rules. In the circumstances, the discretion as to costs should be invoked and the appellants should pay the respondent's costs.

The general position as to costs

The primary provision governing costs in relation to proceedings in the Tribunal is s 60 of the NCAT Act. Pursuant to that section, each party to proceedings is generally to pay their own costs in appeals unless the amount in issue in the proceedings at first instance and the appeal exceeds $30,000: see the combined effect of rr 38 & 38A of the Rules. However, pursuant to s 60(2) of the NCAT Act, the Tribunal may award costs if it is satisfied that there are special circumstances warranting it doing so. Section 60(3) provides a non-exhaustive list of relevant factors which might constitute special circumstances.
Each application for costs must be determined on its own merits and the central and overriding principle in any order as to costs is that of doing justice between the parties in each particular case: Moseley v AB (No 2) [2017] NSWSC 1812 at [65] - [66].
"Special circumstances" are circumstances that are out of the ordinary but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow JA); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. Even if satisfied that there are special circumstances, I must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21].
Leaving to one side the issue of whether special circumstances warranting an award of costs exist, the relevant principles in respect of the exercise of the costs discretion in interlocutory proceedings are those summarised in Ausino International v Apex Sports [2006] NSWSC 1119, where Campbell J described the usual exercise of the discretion in interlocutory matters as follows: [55] In contrast, the present proceedings before me are brought on the basis that they are an interlocutory process. The usual order, which is made as to costs concerning interlocutory processes, is that if the plaintiff is the applicant, and succeeds, then the costs of the interlocutory process become the plaintiff's costs in the cause, while, if the plaintiff is the applicant, and loses, the usual order is that the plaintiff pay the defendant's costs of that application. [56] The rationale for that arises from the way that interlocutory proceedings are intended to advance the final hearing. If a plaintiff has a victory on the way to a final hearing, whether that victory is ultimately one which is fruitful will depend upon whether the plaintiff succeeds in the final hearing. However, if the plaintiff brings an interlocutory application and loses, then that interlocutory hearing is one which will, irretrievably, have cost the defendant money, and the justice of the situation is that the defendant should be indemnified for those costs, regardless of the outcome of the proceedings.

Consideration

A difficult tension initially arose in the determination of this application. My tentative view is that because determination of the application for a stay did not involve, and was not materially linked to, the "adjudication of aspects of the matter which are [potentially] in federal jurisdiction" (Wilson at [4]), the Appeal Panel retains jurisdiction to make consequent costs orders. In that regard, I consider it important that it is only necessary, in conducting an application for a stay, to consider whether the appeal "raises serious issues for the determination of the appellate [tribunal]": McLean Tecnic v Digi-Tech; Kalifair v Digi-Tech [2002] NSWCA 383 at [18]. Resolution of the application does not require the Appeal Panel to "adjudicate" on any aspect of the matter potentially beyond jurisdiction.
However, it is difficult to distinguish Leeming JA's comment in Wilson at [5] that "[i]f, say, the Appellant had failed to obtain interlocutory relief before NCAT appreciated that the proceedings were outside its jurisdiction, and NCAT had ordered that the Appellant pay the respondent's costs on that issue, the power to order costs would not be available and any order NCAT might make would be liable to be set aside". It may simply be that, in an appropriate case, the Appeal Panel determining the application for a stay is left in the uncomfortable position of making a determination as to costs that is liable to be set aside when the issue of jurisdiction can be more thoroughly considered.
However, events have moved on in a way that has made this issue moot in this matter. On 4 October 2023, Senior Member Robertson released his unreported decision on the reserved application to transfer the proceedings to the District Court. He was satisfied that he should do so but made a finding that federal jurisdiction was not engaged because the appellants' relevant claims were "no more than a colourable attempt to attract federal jurisdiction": at [47]. Later, on 20 November 2023, the appellants withdrew the appeal to which this application relates, and it was dismissed with a partial costs order made against them. On 23 November 2023, another, differently constituted, Appeal Panel dismissed an earlier appeal in proceedings 2023/00213688: Amirbeaggi v NSW Self Insurance Corporation (No 2) [2023] NSWCATAP 311. In those circumstances, and in the absence of an order of the Supreme Court, the issues of res judicata or issue estoppel arises to negate the appellants' argument that costs are unavailable here due to federal jurisdiction being invoked.
Having reached that conclusion, I reject the respondent's contention that r 38 of the rules has any bearing on the issue of costs in this application, as there was not an amount claimed or in dispute in the appeal proceedings that exceeded $30,000: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25.
However, I do accept that the application for a stay, whilst not frivolous, was lacking in substance for the reasons I set out at [3(1) & (2)] above, and that constitutes a special circumstance that warrants an order as to costs of the application.

Orders

My Orders are as follows: 1. A hearing of the Respondent's application for costs is dispensed with; 2. The Appellants are to pay the Respondent's costs of the application for a stay on the ordinary basis, as agreed or failing agreement as assessed.

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: 24 November 2023

(2020) 103 NSWLR 140

At a glance

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Judgment (7 paragraphs)

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Cases Cited (14)