Amirbeaggi v NSW Self Insurance Corporation

Submissions and evidence

1. In deciding the costs application, we have had regard to: 1. The costs application and submissions filed by the respondent on 7 December 2023; and 2. The submissions filed by the respondent on 19 December 2023; and 3. Our reasons for decision in the substantive appeal proceedings.

Respondent's submissions

1. The respondent relevantly submits that special circumstances warrant an order for costs because: 1. The appeal proceedings lacked utility and ought not to have been commenced. 2. The appellants pressed determination of the appeal proceedings after the Tribunal proceedings were transferred to the District Court because of the appellant's July transfer application. 3. Simultaneously commencing appeal proceedings and making the July transfer application in which the appellants sought the same relief is an example of the appellants' failure to comply with their obligation under s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 4. The appellants' conduct (as set out above) caused significant disadvantage to the respondent, who has had to suffer unnecessary delay and costs.

Appellants' submissions

1. In response, the appellants relevantly submit that: 1. They did not engage in conduct at any stage during the Tribunal proceedings that was dilatory or that would warrant an order for costs. 2. If the Tribunal Member did not have the material referred to in the file when he determined the transfer application, he should have made inquiries of the parties as to the existence of the evidence. 3. Lodging the July transfer application was not an abuse of process. 4. Even with the success of the July transfer application, there continued to be "factual and legal errors" in the Tribunal's decision "that were significant from a public policy viewpoint and which had significant consequences for the Appellants because of the orders for costs made against them, and the consequential applications they were forced to prosecute before the Tribunal". 5. If the Tribunal had determined the February transfer application in their favour, the proceedings would have been transferred in July 2023 and costs orders would not have been made against the appellants. Redetermination of the Tribunal's decision was "a matter of quite some importance and significance". 6. The respondents' costs submissions are "consistent with the Appellant's complaint of bad faith against it". 7. The respondent "has at each stage of the litigation has sought to gain advantage through either misleading the Tribunal or attaching to the administrative error of the Tribunal" [sic].

Issues

1. The issues to be decided in this case are: 1. Should a hearing on costs be dispensed with? 2. Which costs provisions apply to the appeal proceedings? 3. Do special circumstances warrant an order for costs in favour of the respondent?

Should a hearing on costs be dispensed with?

1. Section 50 of the NCAT Act relevantly provides: "50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. …"
2. The parties were given an opportunity to make submissions concerning whether costs could be determined on the papers. The respondent submitted that costs could be determined on the basis of written submissions without a hearing. The appellants did not seek an oral hearing.
3. We are satisfied that the issue of costs can be adequately determined in the absence of the parties by considering the parties' written submissions. The parties would be put to unnecessary expense if required to argue the costs application at a hearing. An order under s 50(2) of the NCAT Act has accordingly been made.

Which costs provisions apply to the appeal proceedings?

1. The general rule in relation to costs in the Tribunal is that unless special circumstances are established, the parties pay their own costs: s 60 of the NCAT Act.
2. It is not in dispute that s 60 applies to the costs of the appeal proceedings. Therefore, the respondent must establish that there are special circumstances warranting an order for costs.

Do special circumstances warrant an order for costs in favour of the respondent?

1. Section 60(3) of the NCAT Act states: (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.
2. Special circumstances for the purposes of s 60(3) of the NCAT Act are circumstances that are out of the ordinary. They do not have to be exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. Whether special circumstances exist is a question of fact and each case must be assessed according to its circumstances: Wynne Avenue Property Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 68 at [57]; The Owners - Strata Plan 20211 v Rosenthal [2019] NSWCATAP 49 at [13].
3. We are of the view that the respondent has established the existence of special circumstances.
4. First, as noted above, the appellants elected to commence the appeal proceedings at the same time as they made another application to transfer the proceedings. This was an unnecessary duplication of proceedings. The central reason the February transfer was refused was because the Tribunal found that the appellants had not lodged any evidence in support of the transfer application. As we noted in our reasons for decision on the appeal, there is no evidence that the Tribunal ever received the appellants' evidence. The Tribunal had previously made an order dispensing with a hearing of the February transfer application, which the appellants had clearly not objected to. In these circumstances, it was incumbent on the appellants to ensure that the material they relied on had reached the Tribunal. The Tribunal was not obliged to contact the appellants to chase up their evidence.
5. The Tribunal which determined the July transfer application found that that application was not an abuse of process. It was of course open to the appellants to make the July transfer application. That application was determined taking into account the evidence which the appellant placed before the Tribunal in support of the July transfer application. Had the July application been determined against the appellants, they could have sought leave to appeal that decision.
6. Given the July transfer application, appeal proceedings seeking the same relief were unnecessary. Further, once the July transfer application was determined in the appellants' favour, continuation of the appeal proceedings completely lacked utility. We noted in our reasons for decision in the substantive appeal proceedings that it appeared, but was not clear, that the appellants elected to continue the appeal proceedings because of the costs order the Tribunal made against them in respect of the February transfer application. This has been made more explicit in the appellants' costs submissions. For the reasons set out at [37] of the reasons for decision, this was not a sufficient reason for leave to appeal to be granted. We conclude that the duplication of proceedings seeking the same relief amounts to a special circumstance.
7. Second, the appeal proceedings had poor prospects of success. This is so, even if the appellants had not made the ultimately successful July transfer application. In relation to this, the appellants required leave to appeal. As is clear from our reasons for decision, the appellants did not establish any factors that would warrant a grant of leave. We note the appellants' submission there were "factual and legal errors" in the Tribunal's decision, that were "significant from a public policy viewpoint". We are not satisfied that the appellants demonstrated either legal or factual errors in the Tribunal's decision, let alone errors that were significant from a public policy standpoint. The weakness of the application for leave to appeal also amounts to a special circumstance.
8. While are satisfied that special circumstances exist in this case, we must also be satisfied that these circumstances warrant an award of costs; that is, we have a discretion as to whether to make such an award. The exercise of the costs discretion requires us to weigh whether those circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear their own costs: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81].
9. The appellants submitted that the respondent has acted in bad faith and has sought to gain advantage through either misleading the Tribunal or "attaching to the administrative error of the Tribunal". There is no evidence before us from which we conclude that the respondent has acted in bad faith either in the appeal proceedings or at all. Neither is there evidence that the respondent sought to mislead the Tribunal in the appeal proceedings. What the appellants mean by the respondent seeking to obtain advantage by "attaching to the administrative error of the Tribunal" is unclear.
10. We are not satisfied that the appellants have established that any behaviour of the respondent should disentitle it to an award of costs. Rather, we consider that the duplication of proceedings seeking the same remedy and the inherent weakness of the appeal proceedings has led to the respondent incurring unnecessary costs in defending the appeal.
11. Overall, we are satisfied that special circumstances warrant an order for costs in favour of the respondent.

Orders 1. A hearing on costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The appellants are to pay the respondent's costs of and incidental to the appeal proceedings, on the ordinary basis, as agreed or assessed.

    I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar 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: 10 April 2024