Bakir v Roads and Maritime Services

The Tribunal's power to award costs

The Tribunal's power to award costs is set out in s 60 of the CAT Act: 60 COSTS (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (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. (4) If costs are to be awarded by the Tribunal, 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 section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis. (5) In this section: "costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
'Special circumstances' are circumstances out of the ordinary but not necessarily extraordinary or exceptional: Younan v Commissioner for Fair Trading (No 2) [2016] NSWCATOD 60 at [7]. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration: CRIPPS and Another v G& M DAWSON Pty Ltd and Another; G & M DAWSON Pty Ltd and Another v CRIPPS and Another [2006] NSWCA 81 at [60].
It is the applicant for costs who bear the onus of establishing an entitlement to costs in a jurisdiction where the primary rule is that each party bears their own costs: Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 at paragraph [18].
In Yammatree Pty Ltd (Applicant); North West Local Land Service (Respondent) [2015] NSWCATAD 221 the Tribunal said: 8… Subsection 60(2) gives the Tribunal a wide discretion to award costs where it is satisfied that there are 'special circumstances' that warrant an award of costs. That is, the Tribunal must be satisfied there are 'special circumstances' and that these warrant an award of costs. 9 Section 60 (3) provides that the Tribunal may have regard to a range of factors. These include the subsection 60(3)(g) provision regarding "any other matter that the Tribunal considers relevant." It is clear that the factors set out in section 60(3)(a) to (f) are not meant to be an exhaustive list of what might constitute "special circumstances". 10 However, as the Appeal Panel noted in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, it does not follow that a costs order should be made because some factors are made out. 11 It remains necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs.
When regard is given to the criteria in s 60(3) the conduct of a party, including the conduct of the litigation, can be a relevant factor for the Tribunal to take into account: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [166]. The purpose of costs orders "are to help ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others": AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [146], referring to Hendrickson v Yarra Bay 16 ft. Skiff Sailing Club Lid (No 2) [2011] NSWADT 204).
In Ceepee Pty Ltd v RMS [2015] NSWCATAD 130, the Tribunal said: 10 Where a court or a tribunal is conferred with the discretion to award costs, such discretion must be exercised judicially and not capriciously (Oshlack v Richmond River City Council (1998) 193 CLR 72 at 81). The fundamental rationale for the awarding of costs is that such an award is compensatory, not punitive: Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. …
In Fitzpatrick Investments Pty Limited v Chief Commissioner of State Revenue [2015] NSWCATAD 103 the Tribunal said: 35 The Applicant also submits that "where there has been no hearing on the merits, the Tribunal is not able to have regard, as is required by s60(3)(c), to 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". In support, the Applicant cited the High Court decision in Re Minister for Immigration and Ethnic Affairs, ex part Lai Qin [1997] HCA 6; (1997) 186 CLR 622 where his Honour McHugh J noted that, in the absence of a hearing on the merits of a case, "a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order". His Honour went on to say: Having read the Tribunal's decision and the affidavit filed in support of the application for the grant of an order nisi, it seems to me that, although the prosecutrix had an arguable case, she did not have strong prospects of success. If I had to make a prediction about the outcome of her application, I would think that it would probably have failed. However, as I have said it is not the function of a court on costs application - in most cases at all events - to make a prediction as to the outcome of a hypothetical case. … 55 I agree with counsel for the Applicant that "where there has been no hearing on the merits, the Tribunal is not able to have regard, as is required by s 60(3)(c), to 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". I think, Lai Qin, cited by counsel in support of this submission, confirms that it is not the function of a Tribunal "on costs application - in most cases at all events - to make a prediction as to the outcome of a hypothetical case". As suggested in Lai Qin by the High Court, this is the general rule. In some cases, where the facts are brief and not in dispute, the matter can be considered on the "papers". But this was not such a case. In this matter there was a great volume of evidence including several expert reports on various aspects of the land. Against that background, the Tribunal was, in any case, really not in a position to determine in a conclusive manner whether the Applicant's claim had no tenable basis in fact or law or lacking in substance.
The objects of the CAT Act at section 3 and the Guiding Principles at section 36 of the CAT Act are relevant to the interpretation of the "special circumstances": Chan v Commissioner for Fair Trading [2015] NSWCATAD 62 at [35] to [38]; BHR and BHS v Biripi Aborignial (sic) Children's Services (No2) [2015] NSWCATAD 109 at [29]; Yammatree Pty Ltd (Applicant); North West Local Land Service (Respondent) [2015] NSWCATAD 221 at [12]-[13].
Section 36 of the CAT Act states: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
The normal statutory procedure requires that parties comply with their obligations to file and serve documents in accordance with the Tribunal's directions. In Hadidi v Owners Corporation Strata Plan 84787 [2015] NSWCATAP 74 the Appeal Panel, having found that a party had failed on two occasions to file submissions and evidence in accordance with directions of the Tribunal said: 37 The appellant has failed to comply with the duty imposed in s 36(3) to comply with directions of the Appeal Panel: s 60(3)(f) and s 36(3).
A further factor to be taken into account is that the respondent, being a State agency, was also required to act as a model litigant: Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273 (Basten JA, Giles and Bell JJA agreeing); Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130.

Consideration of the submissions

Both the Applicant and Respondent included extensive new evidence, of dealings between their legal representatives and the Tribunal, in their filed submissions for this costs application. This is not appropriate in circumstances where both parties were represented in relation to the costs application and submissions by experienced legal representatives. Whilst section 38(2) of the CAT Act makes clear that the Tribunal is not bound by the rules of evidence, there is a significant difference between filed evidence which is deficient as to (for example) the hearsay rules, and expecting the Tribunal to accept new evidence in the form of submissions which has otherwise not been provided to the Tribunal. I reject the new evidence contained in the parties' submissions accordingly. Specifically, I reject paragraphs 13 to 18 of the Applicant's submissions dated 28 November 2017 and paragraph 3 of the Respondent's submissions dated 18 December 2017 to the extent that they purport to provide the Tribunal with evidence.
The Applicant's submissions in reply dated 3 January 2018, from paragraphs 3 to 28, reply to those factual matters I have rejected from the Respondent's submissions and accordingly I reject those submissions to the extent that they purport to provide the Tribunal with evidence. The Applicant also filed a handwritten letter from the Applicant dated 28 December 2017, addressing additional submissions and including further additional evidence. In fairness to the Respondent, because there has been no opportunity for the Respondent to consider or reply to that letter which I would otherwise accept as evidence from the Applicant, I reject that letter in relation to my consideration of the applicant's costs application.
Despite my rejection of this evidence, there remains significant material on the file for these proceedings, available to the Tribunal's consideration of whether or not "special circumstances" exist to warrant the granting of an order for costs.
The Applicant's submissions included a detailed restatement of the authorities for the principles to be applied in determining whether "special circumstances" existed. However they did not specifically engage with the provisions of section 60(3) or section 36(3) by explaining how the Respondent's conduct was said to create any special circumstances, other than a generalised "unnecessary prolonging of the proceedings".
The Respondent submitted that in the circumstances, "there are no special circumstances given the evidence referred to and the charges that were preferred against the Applicant". Significantly, the Respondent submitted that "in respect of this matter there has been no hearing on the merits to determine the merit of either of the party's cases".
The Background to these Reasons for Decision is taken from the Tribunal's file, which includes records of each occasion the parties appeared before the Tribunal, records of each contact either party had with the Tribunal, the evidence filed prior to the hearing and tendered as exhibits at the hearing, and the transcript of proceedings, where available. The hearing commenced on 7 June 2017 and, significantly, on 17 July 2017 the Applicant was affirmed and gave evidence, and was subject to cross-examination by Mr Wozniak. It is part of the Tribunal's normal procedure to swear or affirm a self-represented litigant to give evidence, even where there is no written statement, so that he or she may answer questions during the hearing which will be considered as evidence. This is also done because of the propensity of self-represented litigants to be ignorant of the difference between submissions and evidence in the context of an oral hearing. This was done, according to Tribunal records, on 17 July 2017 with the Applicant, who preferred an affirmation to an oath on that date.
It was as a result of the Applicant's evidence, given during the hearing on 17 July 2017 that the Tribunal pointed out to the Respondent that it had not provided the Tribunal with any evidence from the Zero-200 network of the jobs being offered to or rejected by the Applicant. This was part of the hearing on the merits. The Tribunal's request that the Respondent file additional evidence on that occasion was made pursuant to section 38(1) and 38(2) of the CAT Act. It is not the case, as the Respondent submits, that there was no hearing on the merits in these proceedings. The hearing had commenced and continued on each occasion that the parties were before the Tribunal on 7 June 2017, 17 July 2017, 6 September 2017, and 9 October 2017. There was no decision on the merits because the parties effectively settled the proceedings on 9 October 2017 when the Respondent "withdrew its decision" and agreed that the Applicant's licence would be renewed, as is expressed in the transcript from that occasion, where the following exchange occurred: AJAJE: Member I have not been able to get clear instructions. My client is quite emotional about these matters, um so - MEMBER: Did you want to take some time? AJAJE: I have spoken to him I don't think it's going to resolve it. Um, my friend's indicated that he withdraws the matter, um so - I don't know - where does it technically leave the matter? Where does it - at the moment, once withdrawn - it leaves it, I suppose, there is no contest here now is there? MEMBER: No WOZNIAK: There's no decision then to appeal I suppose. MEMBER: That's right AJAJE: Does that - does that by implication mean that the license is reinstated? MEMBER: Yes WOZNIAK: Yeah the license will be granted, yeah.
Having regard to the provisions of s60(3), not all considerations are relevant in the circumstances of these proceedings. Subsection 60(3)(c) is not relevant to costs in these circumstances because, following the principles espoused in Fitzpatrick above, there were no factual or legal arguments which were determined to finality, so it is not necessary for the Tribunal to engage in the weighing up of the strengths or otherwise of each parties' case. Similarly, the nature and complexity of the proceedings pursuant to subsection 60(3)(d) isn't particularly relevant in the circumstances - there is nothing special submitted about either to be considered. There is no suggestion by either party that the other's claims fell within the parameters of being considered frivolous, vexatious, misconceived or lacking in substance pursuant to section 60(3)(e).
On the facts and submissions, subsections (a), (b), and (f) to section 60(3) are relevant considerations in the circumstances. They are: (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, … (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), specifically that the Respondent is to comply with directions and orders of the Tribunal.
Considering the circumstances, the following seem to me to constitute "special circumstances" in that they are occurrences out of the ordinary in the course of having this matter heard and determined or finalised by the Tribunal: 1. That when the hearing resumed on 6 September 2017, the Respondent had not filed or served the evidence sought by the Tribunal on 17 July 2017 regarding the Zero-200 radio network and the offering and refusing of appropriate wheelchair jobs to the Applicant, and had not notified the Tribunal or the Applicant of any difficulty in doing so ("SC-1"); 2. That the Respondent issued summonses on 15 August 2017 to Zero-200 and Combined Communications Network, one day prior to the Respondent's evidence being due, but the Applicant's representatives was not aware of them until the hearing on 6 September 2017 ("SC-2"); 3. That the Respondent informed the Tribunal on 9 October 2017 at the commencement of the resumed hearing that "the RMS will withdraw its decision. Accordingly, that would conclude the proceedings essentially" ("SC-3"); 4. That the Respondent did not assist the Applicant and the Tribunal in having the incorrect orders issued on 10 October 2017 corrected prior to 7 November 2017 ("SC-4").
The next step is to determine whether any of these "special circumstances" warrant an order for costs, within the meaning of section 60(3).
In my view, the Respondent's actions expressed at SC-1 in not having filed the evidence sought by the Tribunal by 16 August 2017, and not notifying the Tribunal or Applicant of any difficulties doing so prior to 6 September 2017, clearly created "special circumstances" within the meaning of subsections 60(3)(a), (b), and (f). This put the Applicant at a disadvantage of not having the evidence sought by the Tribunal to respond to, of preparing extensive affidavit evidence which required amendment, and consequently, in the Tribunal's view, necessitating an adjournment for the Respondent to file its evidence, and for the Applicant to have an adequate opportunity to consider that evidence and respond. This unnecessarily prolonged the proceedings. It was not the only action which prolonged the proceedings from conclusion, but certainly caused significant general delay and specifically caused the hearing to be adjourned again on that occasion. The Respondent's (in)actions were also contrary to the Tribunal's directions and orders, thereby also a failure to comply with the duty imposed by section 36(3) of the Act.
The Respondent argued, and I accept, that some of the Applicant's actions caused delay, disadvantage, adjournments and non-compliance with the Tribunal's directions. I agree to the extent of the Applicant's actions prior to 31 August 2017. However, those circumstances can be explained by the Applicant's lack of consistent representation and legal advice, and his self-representation, with an interpreter, at the hearing on 7 June 2017 and 17 July 2017. In the circumstances of a self-represented litigant, I don't find the Applicant's actions or inactions prior to 31 August 2017 to be "special circumstances", and they do not mitigate any of the Respondent's conduct.
The Respondent's actions expressed at SC-2, being the issuing of summonses on 15 August 2017 exacerbated the special circumstances described above regarding SC-1. The issuing of summonses one day prior to the Respondent's evidence being due demonstrates that the Respondent had no intention of complying with the Tribunal's order. The failure to provide notice to the Applicant adds further to the Applicant's disadvantage as a special circumstance pursuant to section 60(3)(b) of the CAT Act.
The Respondent's actions on 9 October 2017 expressed at SC-3 disadvantaged the Applicant by essentially expressing the Respondent's capitulation after the 4th hearing day had commenced. No specific reason for this was given to the Applicant or the Tribunal, and the Respondent expressed its decision as a "withdrawal" following "discussions between the parties", which created serious confusion for the Tribunal and the Applicant as to whether and to what extent the proceedings would continue. The confusion is evident from the transcript of the hearing on that date and the issuing of incorrect orders from the Registry which followed. The Respondent's lack of notice and lack of explanation to the Applicant or the Tribunal caused the Applicant disadvantage pursuant to section 60(3)(b) of the CAT Act in having to later contact the Tribunal to correct the orders. This resulted in an additional directions hearing and hearing day to be listed to finalise the proceedings, which could have been avoided by the Respondent notifying the Applicant of its decision at a reasonable time prior to the hearing on 9 October 2017.
Finally, the Applicant submitted that the Respondent's conduct on 17 October 2017 lead to unnecessary delays and expenditure of costs, specifically requiring the engagement of counsel. I don't accept that submission on the basis of the evidence before me. I do however find that, as expressed at SC-4, the Respondent did not assist the Applicant and the Tribunal in having the incorrect orders issued on 10 October 2017 corrected prior to 7 November 2017. The file indicates that the Applicant corresponded with the Tribunal Registry on 12 October 2017 about incorrect orders being made. There is no communication from the Respondent either confirming or objecting to the Applicant's request for assistance. The matter was listed for a directions hearing, which did not resolve the issues. As a result, the proceedings were not appropriately finalised with the correct orders until 7 November 2017, when counsel appeared for the Applicant, and the parties jointly drafted appropriate orders reflecting the agreed resolution of proceedings. So whilst I accept that the Respondent's conduct necessitated the Applicant engaging counsel in the circumstances, I don't agree that this was because of the Respondent's conduct particularly on 17 October 2017, as I do not have specific evidence I am willing to accept of what occurred on that occasion. Rather, I accept that the Respondent's conduct between 10 October 2017 and 7 November 2017 placed the Applicant at a disadvantage within the meaning of subsection 60(3)(b).
In the circumstances, I accept that the Respondent's conduct as described at SC-1, SC-2, SC-3 and SC-4 above constitutes "special circumstances" warranting the imposition of costs in the Applicant's favour pursuant to section 60(3) of the CAT Act.
The Applicant submitted that its costs incurred amounted to $15,000 plus GST for its solicitor's fees, and $2062.50 for counsel, but failed to forward the Tribunal any memorandum of fees. In my view the Respondent's conduct constituting "special circumstances" which warrants the imposition of costs commenced following the hearing on 17 July 2017, at the time that the Respondent's evidence was due on 16 August 2017. Those costs should be paid on an ordinary basis. There being no submissions made regarding any basis on which an award for indemnity costs would be appropriate, I make no such order. In accordance with section 60(4) of the CAT Act, I consider it appropriate for the Respondent is to pay the Applicant's costs from 16 August 2017 on an ordinary basis, as agreed or assessed.

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