G K Burton SC, Senior MemberH Woods, Senior Member
Catchwords
APPEALS – interlocutory decision PRACTICE and PROCEDURE
– variation of interlocutory orders COSTS – where
substantive appeal rendered nugatory by intervening event (further Tribunal
orders)
Source
Original judgment source is linked above.
Catchwords
APPEALS – interlocutory decision PRACTICE and PROCEDURE– variation of interlocutory orders COSTS – wheresubstantive appeal rendered nugatory by intervening event (further Tribunalorders)
Judgment (8 paragraphs)
[1]
The appeal, filed within time on 30 May 2025, was from a decision on 6 May 2025 in 2024/00390522 in which the appellant consumer was the applicant and the appeal respondents were the respondents. That interlocutory decision was therefore the relevant primary decision.
The appellant's substantive claim in the proceedings was in respect of alleged breach of consumer guarantees in relation to the first respondent's supply of services, being small business accelerated coaching and associated software. The amount of the appellant's substantive claim exceeded the $30,000 threshold in r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) so that the ordinary costs rules were to be applied to the appeal under r 38A.
On 6 May 2025 the primary decision was made in the form of an order (order 3) that removed an order (order 4) made on 20 December 2024 that the appellant provide written opening submissions ten days before final hearing (order 5, that required responsive opening submissions from the respondents three days before final hearing, was also removed). An order on 13 March 2025 had provided for filing and service of evidence. Order 3 on 6 May 2025 read: "Order 4 and order 5 dated 20 December 2024 are set aside. Whether the parties provide written submissions at the conclusion of the final hearing is a matter to be determined at the discretion of the presiding member".
On 12 May 2025 another Senior Member refused the appellant's miscellaneous application to reinstate orders 4 and 5 because the appellant wished to give her submissions on that application to the Tribunal but keep them confidential by non-disclosure to the respondents, claiming that they would give the respondents a tactical advantage.
That Senior Member on 14 May 2025 did hear a renewed application when the appellant disclosed her submissions on the application to the respondents. In a decision on that application the Senior Member refused the appellant's miscellaneous application on the basis that he had no relevant power to vary order 3 made on 6 May 2025 and that what was required was, first, a successful appeal to overturn order 3 and then re-consideration of whether or not order 3 should have been made, either by the Appeal Panel itself or on remitter to the Tribunal.
We respectfully doubt the correctness of that decision on 14 May 2025. The Tribunal has power to control its procedures for such matters under s 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That power extends to varying matters of practice and procedure whenever necessary for the proper conduct of the proceedings, unless the interlocutory order in question has the practical effect of determining the parties' rights or preserving the status quo until such determination: Wilkshire v The Commonwealth(1976) 9 ALR 325 at 330; Douglas v John Fairfax & Sons Ltd[1983] 3 NSWLR 126 at 134-135; DPP (Cth) v Geraghty[2000] NSWSC 228, 174 ALR 60; Amalgamated Television Services PL v Marsden [1999] NSWCA 313 at [38].
However, the present appeal was not against the 14 May decision but, rather, against order 3 made on 6 May 2025.
Order 3 made on 6 May 2025 was an "interlocutory decision" within the meaning of that term in s 3 of the NCAT Act and the relevant case law (examples of which have been cited above) since it did not finally determine the rights of the parties or preserve the status quo pending final determination, and was made for and in the course of the conduct of the proceedings. Leave to appeal is required for an interlocutory decision under s 80(2)(a) of the NCAT Act.
In the appeal both sides of the record were self-represented, the respondents had common representation by a co-director of the first respondent (of which the second respondent was an employee) and no leave for legal representation was sought. Any claim for costs was therefore limited to disbursements.
A stay of order 3 on 6 May 2025 was sought when the appeal was filed and was refused, with oral reasons, on 18 June 2025.
The Appeal Panel was advised before the appeal hearing that the issue the subject of appeal (written submissions before the final hearing of the substantive matter) had effectively been rendered moot and nugatory by the occurrence of that final hearing on 23 July 2025 and the decision of a further Senior Member, who heard the substantive claim, to reserve his decision and to provide for restricted written closing submissions to supplement the oral submissions. We shall accordingly make an order refusing leave to appeal and dismissing the appeal since there is no longer a justiciable substantive issue between the parties.
The issue before us was therefore reduced to the costs of the appeal. The appellant filed on 27 August 2025 a miscellaneous application for lump sum costs of appeal disbursements, comprising the appeal filing fee of $506, $100 for obtaining sound recordings of the relevant hearings and $25.50 approximately for transcription. The respondents said that there should be no order as to the costs of the appeal.
The respondents submitted in effect that they had not delayed or otherwise detrimentally conducted the substantive primary proceedings so as to cause the appeal or so acted in the appeal proceedings. They had simply exercised rights and wanted to get to final hearing after much delay and excessive material on a consumer claim for a refund by the appellant, including this appeal which was unnecessary.
The appellant submitted that there were costs offers which were made both before and after the appeal was rendered nugatory, a lack of co-operation in the conduct of the proceedings, including the appeal, by the respondents and a number of misrepresentations to the Tribunal by the respondents which required a volume of material to correct. She said that she was forced to this appeal after trying and exhausting other avenues, that the primary member did not listen to her (she gave transcript references that allegedly supported the allegation) and didn't read her submissions; consequently, she alleged, the primary member misunderstood and was misled or confused by the respondents' submissions that orders 4 and 5 made on 20 December 2024 had been superseded.
We note from the 6 May 2025 transcript that, after hearing a deal of argument from each party, the primary member left it to the member conducting the final hearing of the substantive claim whether closing written submissions were required but considered that the claims and responses were sufficiently outlined in the points of claim that post-dated the 20 December 2024 orders. We do not need any longer to go into the merits of that conclusion.
In our view, there was a difficult but arguable basis for the appeal until it was rendered nugatory by the supervening event of the Tribunal's orders on hearing and reserving the substantive decision and providing for written closing submissions. It was not in the materials before us whether those orders were initiated or supported by all parties or only some.
There was assertion by the appellant but no objective evidence, in the material provided to us, of relevant misconduct by the respondents in the proceedings including the appeal. Absent such evidence, on the authorities below there is no basis for a costs order against the respondents in respect of the costs of the appeal.
Despite the elision of the two in her submissions, the appellant did not obtain fully what she sought to restore from order 3 which had been to provide written submissions prior to hearing; the order when the decision in the substantive proceedings was reserved was for written submissions after the hearing. There is an important distinction between opening and closing submissions, when there is consideration of written and oral evidence in between. The orders made at final hearing of the substantive claim on 23 July 2025 specified page length, type font and size, normal margin width, were not to introduce new evidence, were restricted to legal arguments concerning existing evidence and "must not re-canvass any issues that have been the subject of oral submissions today".
On 18 May 2025 the appellant proposed to the respondents to avoid an appeal by consenting to the reinstatement of order 4 made 20 December 2025. On 20 May 2025 the respondents declined the invitation.
The invitation was in open form and was not marked without prejudice or without prejudice save as to costs. Even if treated as an offer, it does not assist. The appellant did not achieve the same as what she sought by the offer, as just explained. More centrally, what was achieved, even if found to be in substance the same in the present circumstances, was not the result of the appellant's appeal or after a contest in which the appellant succeeded against the respondent's contentions.
The appellant appears to have understood what a Calderbank offer was because on 12 August 2025, after the appeal was rendered moot, she used the words "Without prejudice save as to costs (Calderbank offer)" to offer to withdraw the appeal by consent on the basis that she was paid the filing fee of $506 by the respondents and otherwise each party bore its own costs. The letter ended: "If not accepted, the appeal will proceed [presumably only on the question of costs] and I may rely on this offer on the question of costs".
In their response the following day, the respondents said that the appellant initiated the appeal
[2]
"against NCAT's procedural handling of your matter, despite our position that we would not support it and that it had no merit against Hyper. You have now acknowledged that the appeal is no longer necessary. In our view, it was commenced unreasonably and in circumstances where any costs or inconvenience arising from it are your responsibility.
[3]
Your current position appears to be that you will proceed with litigation (that you accept is unnecessary) unless we reimburse your filing fee. This is an unreasonable and disproportionate approach to this case and not an appropriate basis to resolve matters. Such conduct will be relevant to any future consideration of costs.
[4]
In the interests of finality and to avoid unnecessary preparation by either party, we are prepared to consent to orders dismissing the appeal with each party bearing their own costs of the appeal. We do not agree to a reimbursement of the filing fee.
[5]
If this is acceptable, please provide draft consent orders."
[6]
We have already said that there was no evidence before us to support the contention that the respondent should bear the costs of the appeal. The outcome of the appeal on costs on the authorities below equated to the respondents' offer.
It was the appellant's appeal that was rendered nugatory. That is more akin to a situation where a claim is withdrawn, in which the usual but not invariable order is that the withdrawing party bears the costs of the relevant proceedings because those costs are compensatory in rationale and the other part has been put to the expense of responding to the proceedings, unless there is disentitling conduct by the respondents (of which there is no evidence before us): Fordyce v Fordham[2006] NSWCA 274 at [3], [67], [84], [96]-[97]; Australiawide Airlines Ltd t/as Regional Express v Aspirion PL[2006] NSWCA 365 at [53]- [54]; Bitannia PL v Parkline Constructions PL[2009] NSWCA 32 at [54], [70].
An alternative, where there is a supervening event such as has occurred here, is that there may be no order as to costs because the event is beyond the control of either party: Newcastle Wallsend Coal Co PL v IRC (NSW)[2006] NSWCA 129 at [23]- [26], [39]. In that situation, there is a difficulty in determining who, if either, should bear the other's costs: Edwards Madigan Torzillo Briggs PL v Stack[2003] NSWCA 302 at [5] and authority there cited; McNamara v San[2010] NSWSC 809 at [12]; Metro Hotel Sydney PL v Kol Tov PL[2010] NSWSC 1195 at [8] et seq.
We have already said that there is no basis on the material before us to have the respondent bear the appellant's costs. The respondents' last counter-offer of 13 August 2025 provided an arguable basis for the appellant paying all or part of the respondents' costs of the appeal on the basis that the respondents achieve the same outcome in their offer on the application of the above authorities, before considering the counter-offer.
We do not need to determine that issue because the respondents have not sought a costs order against the appellant in respect of the costs of the appeal and are content with there being no order as to the costs of the appeal. That is the costs order we propose to make.
Orders
We make the following orders:
[7]
(1) Leave to appeal the interlocutory decision refused as rendered nugatory by further Tribunal procedural orders.
(2) Appeal dismissed as rendered nugatory by further Tribunal procedural orders.
(3) Make no order as to the costs of the appeal.
[8]
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.