[1998] HCA 11
Re Minister for Immigration and Ethnic Affairs
Ex parte Lai Qin (1997) 186 CLR 622
Source
Original judgment source is linked above.
Catchwords
[1998] HCA 11
Re Minister for Immigration and Ethnic AffairsEx parte Lai Qin (1997) 186 CLR 622
Judgment (6 paragraphs)
[1]
Summary
On 31 March 2023, the appellant withdrew proceedings he had maintained in the Consumer and Commercial Division for nearly a year. Those proceedings sought to agitate matters apparently encompassed by an earlier application by the appellant against the respondent, which was dismissed after the appellant failed to appear. Withdrawal of the second application occurred only three days prior to the scheduled hearing. The respondent sought costs of the withdrawn proceedings.
On 22 May 2023, the Tribunal determined the respondent's application for costs (Primary Decision). The Tribunal ordered the appellant to pay the respondent's costs on the ordinary basis. In summary, the Tribunal was satisfied that the withdrawal of the application represented a capitulation by the appellant: Primary Decision at [2], [28].
As the amount claimed had exceeded $30,000, the usual rule as to costs contained in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) was displaced by r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) and the Tribunal was not required to consider whether special circumstances warranting an award of costs were demonstrated.
The appellant sought to appeal the Primary Decision by a Notice of Appeal lodged within the requisite time. He also lodged an application to stay the effect of the Primary Decision. On 30 June 2023, I conducted a directions hearing in respect of the appeal. The appellant withdrew the application for a stay. I directed him to lodge and serve his submissions in support of the substantive appeal by 14 July 2023.
On 14 July 2023, the appellant's lawyers wrote to the respondent and the Tribunal seeking to withdraw the appeal. The explanation given was that the appellant had been posted to a "remote and isolated part of Western Australia for work" and would be unable to provide instructions to advance the appeal.
The respondent only consented to withdrawal of the appeal on the basis that the appellant pays its costs and be prevented from re-commencing appeal proceedings without leave of the Appeal Panel and subject to having paid its costs. I made directions for the parties to make submissions on the issues, noting that the Appeal Panel may dispense with a hearing and deal with the issues on the papers. The parties were directed to address that in their submissions, should they wish to.
On 27 July 2023, having received the parties' submissions, and in the absence of any opposition to my determining the issues on the papers, I dispensed with a hearing as I was satisfied that the issues for determination could be adequately determined in the absence of the parties by considering the written submissions and other material lodged with the Tribunal. I unconditionally dismissed the appeal and vacated the hearing date, which was otherwise pressing. I reserved the question of the respondent's costs. This is my decision in respect of the costs application and my reasons for dismissing the appeal unconditionally.
I have decided to order that the appellant pay the respondent's costs of the appeal on the ordinary basis.
[2]
Principles relating to costs of the appeal
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 of this nature. However, that general rule may be displaced in respect of decisions of the Consumer and Commercial Division, and appeals from such decisions, by rr 38 and 38A of the Rules. In that regard, where the amount claimed or in dispute in the proceedings at first instance is more than $30,000, as it was here, the general rule in those proceedings is modified by r 38(2)(b).
If that remains the case in respect of the appeal, then r 38A is engaged and the Appeal Panel may award costs even absent a finding of special circumstances: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25. However, what was in dispute in the appeal was the obligation of the appellant to pay the respondent's costs of the first instance proceedings.
The respondent acknowledges that costs of the appeal are governed by s 60 of the NCAT Act, and that, consequently, it needs to demonstrate special circumstances warranting an order for its costs.
"Special circumstances" are circumstances that are out of the ordinary but need not be exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow J); 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].
An order for costs is made not for the purpose of punishing the unsuccessful party but rather for the purpose of providing a part indemnity to the successful party for their costs incurred: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.
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].
[3]
The parties' submissions
The respondent submits that various issues should lead to a finding that there are special circumstances here warranting an order for costs.
It submits that the appellant did not lodge any evidence or written submissions pursuant to directions made in respect of the application for a stay. Nor did the appellant indicate that the application would not be pressed until the day prior to the scheduled hearing.
The respondent also submits that the appellant's conduct of the primary proceedings, and the appeal, was less than satisfactory; the appellant having been regularly in breach of orders and having failed to correspond with the respondent in relation to the matter except at "the very last instant."
The respondent also challenges the veracity of the appellant's claim that he could not provide instructions, particularly where the challenge raised by the appellant in the appeal was in respect of an alleged jurisdictional error. The respondent notes that the appeal effectively alleged that the Tribunal had no jurisdiction to make the costs order after the first instance proceedings were withdrawn. The respondent submits that can be categorised as an argument that was "misconceived and doomed to fail" due to the Tribunal's power to make ancillary orders: NCAT Act, s 29(2). Ancillary orders are defined to include an order that is consequential on a decision determining proceedings, including a decision concerning awarding costs in proceedings: NCAT Act, s 4(1). The respondent otherwise submits that the appellant did little to advance his position in any meaningful way and by doing so neglected his obligation to cooperate with the Tribunal in compliance with s 36 of the NCAT Act.
In respect of the conditions the respondent sought to be placed on the potential reinstitution of the appeal, the respondent submitted that the withdrawal should only be allowed on condition, under s 58 of the NCAT Act, that the appellant only be permitted to reinstitute appeal proceedings with the leave of the Tribunal and once he had paid the respondent's costs of the first instance proceedings and the appeal.
In support of that aspect of the application, the respondent points to the issues identified in its submissions, noted above, and reiterates that it has now been forced to respond to three separate applications in respect of the dispute, each of which have been "withdrawn" by the appellant. It suggests that the orders are appropriate so that it does not face the same prejudice and to avoid a deficient application being filed, attempting to advance the same case, which would be a waste of the Tribunal's resources.
In response, the appellant confirms that the appeal was withdrawn due to the remote work posting of the appellant. In that regard, the appellant relies upon a brief statutory declaration by his solicitor, Mr Doyle. Mr Doyle confirms that, having received instructions from the appellant to bring the appeal, he received an email from the appellant on 10 July 2023 indicating that the appellant "can't deal with this anymore!" He also needed it "over and done with." The appellant further advised that he had "fully moved to a really remote part of WA."
As a result, Mr Doyle telephoned the appellant who confirmed that he did not feel that he could go ahead with the appeal because he was suffering anxiety and stress, causing him to see a doctor, and that he was posted to "a remote part of Western Australia which [he] can't even pronounce and will be out of contact."
In reply, the respondent acknowledges that the appellant may have health issues but confirms that there is no medical evidence to support a claim he is not able to pursue the appeal for medical reasons. Nor is there evidence as to why his posting to Western Australia should prevent his prosecution of the appeal, particularly on a question of law going to jurisdiction and where he had previously sought advice from counsel about his prospects.
[4]
Costs
It is the appellant's conduct in respect of the appeal, and not the proceedings at first instance, which is relevant to my considerations.
Whilst I accept that there is some apparent merit in the respondent's argument that the appeal was doomed to fail, it is generally not appropriate to speculate on who would have, hypothetically, had success in an appeal where it was withdrawn. In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6, McHugh J said at [31]:
"It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial. This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue."
However, I may have specific regard to whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings (NCAT Act, s 60(3)(a)) or has been responsible for prolonging unreasonably the time taken to complete the proceedings: NCAT Act, s 60(3)(b).
I am satisfied that both of those descriptions are apposite to the conduct of the appellant in the appeal. In respect of the first consideration, the failure by the appellant, with the benefit of legal advice, to lodge and serve anything in support of his application for a stay as directed, or withdraw it well in advance of the hearing, unnecessarily disadvantaged the respondent who had to prepare for the hearing on the basis that it might need to meet some application to rely on material lodged late, or indeed submissions made orally without notice.
In relation to the second consideration, given the protracted history of the proceedings at first instance, I cannot infer that the impact of the appellant's health concerns materialised instantaneously. Certainly, there is no evidence to that effect. Nor could the difficulties posed by his relocation sensibly have come as any surprise to him. Notwithstanding that, he only notified his solicitor of his intent to withdraw the appeal days before his material was due and at a time when he had already "fully moved". In the circumstances of this matter, that unreasonably prolonged the time taken to complete the proceedings. Taken together, those factors are sufficiently unusual to engage the power to award costs under s 60 of the NCAT Act and warrant an order that the appellant pay the respondent's costs of the appeal.
[5]
Should I place conditions on the withdrawal of the appeal?
I was not satisfied, however, that I should make the dismissal of the appeal conditional in the manner sought by the respondent.
There is no need to make the reinstitution of the appeal conditional on leave of the Appeal Panel. The appellant's time to appeal has long expired, meaning he would need leave to extend time to lodge a fresh Notice of Appeal in any event.
In respect of a condition that he only obtain such leave if he has paid any costs awarded, I am satisfied that would be a proper consideration in respect of any application to extend time to lodge a fresh notice of appeal, as it would represent an aspect of prejudice to the respondent if leave was granted. That issue can properly be considered if and when it arises. Other considerations, such as whether the costs had been assessed or whether the appellant was able to secure the amount claimed until they were, which are not presently in evidence before me, may also be relevant in that regard.
[6]
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
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Decision last updated: 04 August 2023