Cornish v Deputy Secretary, Department of Local Government Planning & Policy

Determination of costs of the appeal on the papers or whether a further hearing is required

1. The directions we made on 12 January included a direction that the parties should address the question of whether costs of the appeal may be determined by us "on the papers" by a further hearing being dispensed with, or whether a further hearing is required. The Respondent proposes that a further hearing be dispensed with because there is no need for the parties to incur more expense and that the written submissions are sufficiently thorough.
2. However, the Appellant's solicitor submits that, based upon his experience "on the papers" decisions have resulted in "serious decision error". The submissions make reference to issues concerning evidence and submissions not properly reaching the Tribunal members.
3. As a consequence of the directions made by us on 12 January 2022, we have received the Appellant's submissions dated 27 January 2022 and the Respondent's submissions dated 8 February 2022. So far as we are aware, there are no other submissions to be considered.
4. In our view the issues for determination can be adequately determined by reference to the submissions identified above and, accordingly, we propose to proceed "on the papers" by reference to those submissions. A hearing on the question of costs of the appeal is dispensed with pursuant to s 50 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

Appellant's Submissions

1. As stated above, the Appellant's submissions appear to constitute a desire to re-litigate costs incurred since 15 October 2020 (which was about when the application was lodged seeking an order concerning costs at first instance). As stated above, we are concerned only with costs of the appeal being those costs incurred since the appeal was lodged on 27 April 2021.
2. The Appellant's first submission is that the Appellant was entirely successful in the appeal. The effect of the appeal was to reverse the decision at first instance (by which he did not receive the benefit of an order for costs at first instance) and in its place receive from this Appeal Panel an order that his costs at first instance be paid by the Respondent. The Appellant acknowledges that under the NCAT Act costs are normally paid by each party (that is to say there is generally no order as to costs) but an order for costs can be made where the Tribunal finds that there are special circumstances warranting an award for costs: see s 60 of the NCAT Act.
3. The Appellant relies upon the special circumstances identified in ss 60(3)(c), (d), (e) and (g). Section 60 provides as follows: 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.
4. In respect of s 60(3)(c), the Appellant submits that the Appellant has "consistently been found to have the stronger argument". The submissions then refer to other proceedings between the same parties which relate to the events which gave rise to the application at first instance.
5. In respect of s 60(3)(d), the Appellant refers to the history of the dispute between the parties which has its origins going back as far as the end of 2014. In our view that history is not relevant to our determination as to whether there should be an order with respect to the costs incurred in this appeal. What is relevant to our determination is the appeal proceedings.
6. In respect of s 60(3)(e), the Appellant again, inappropriately, attempts to reargue matters which were the subject of dispute between the parties in the Supreme Court and in which the Appellant was successful. They have nothing to do with whether there are special circumstances warranting an award of costs incurred in this appeal.
7. In respect of s 60(3)(g), the Appellant's submissions suffer the same error as other submissions and are largely irrelevant as to who should pay for costs of the appeal. Those submissions were to the effect that the Respondent has failed in the proceedings at first instance in the Tribunal and in the Supreme Court with the consequence that the Appellant has suffered delay , obstruction and costs

Respondent's Submissions

1. The Respondent's submissions may be summarised as follows:
2. The Appellant's assertion that costs run from the date of the application at first instance (said by the Appellant to be 15 October 2020 but the correct date appears to be 15 September 2020) is wrong and inconsistent with the orders made by us in this appeal. As stated above, we agree with this submission.
3. The Appellant's submissions referred to a case cited as "Berwick No 3" which the Respondent assumes is a reference to Council of the New South Wales Bar Association v Berwick (No 3) [2018] NSWCATAD 95. The Respondent's submission is that that case is inapposite to the matters to be considered in this appeal. That case involved the Tribunal making only a costs order on the basis of the comparative strengths and weaknesses between the parties on each issue that was raised. The Respondent submits that the Appellant did not in fact entirely succeed. He raised 13 grounds of appeal and one or more of his arguments were rejected. It is relevant that the Appeal Panel did not reach a unanimous view. The Appeal Panel's decision was a split one and the Appellant only succeeded by reason of the operation of s 57(3) of the NCAT Act (which had the effect that the orders proposed by the presiding member prevailed). The Respondent submits that there is no basis for special circumstances under s 60(3)(c).
4. Similarly, there is no basis for the application of s 60(3)(e). The Respondent raised cogent grounds for opposing leave being granted to the appeal.
5. The Respondent submits that neither party should receive an order for costs of the appeal.

Consideration

1. As stated above, we are of the opinion that in assessing whether there are special circumstances warranting an award of costs of the appeal, it is relevant only to consider the substantive issues in the appeal, which was whether the decision of the Tribunal at first instance dismissing the Appellant's application for an order for costs at first instance should be upheld, or whether there should be an order for costs in favour of the Appellant in respect of first instance costs. In a split decision the appeal was upheld and an order made that the costs at first instance be paid by the Respondent. In considering costs of the appeal, it is necessary to consider only the issues raised in the appeal.
2. In considering whether there are special circumstances under s 60(3)(c) we are of the opinion that the relative strengths of the claims made by the Appellant and the Respondent were evenly balanced. It cannot be said against the Respondent that the Respondent defended the appeal on a basis that could be described as not tenable. This is self-evident when one considers the reasons we gave in our split decision.
3. In considering s 60(3)(d) we are of the opinion that the appeal proceedings were of some complexity particularly having regard to what had occurred in the Tribunal and in the Supreme Court. Nevertheless, we are of the opinion that the complexity of the appeal proceedings is not such as to warrant an order for costs of the appeal. Our view is based on the fact the issue before us was limited to whether the tribunal at first instance had erred in determining that there should be no order concerning first instance costs.
4. With respect to s 60(3)(e) it cannot be said that the Respondent's defence of the appeal was frivolous or vexatious or otherwise misconceived or lacking in substance. The dissenting decision of Senior Member Furness SC is illustrative of the strength of the Respondent's case.
5. With respect to s 60(3)(g) in our view there are no other matters relevant to our determination concerning costs of the appeal which would support the Appellant's contention that there should be an order for costs of the appeal.
6. In considering the appeal proceedings overall we are of the opinion that whilst the Appellant was obviously successful that success of itself does not constitute a special circumstance. There is a long line of cases in the Tribunal that have held that "special circumstances" are circumstances that are out of the ordinary but not necessarily extraordinary or exceptional (see for example The Owners-Strata Plan No 58068 v Cooper (Costs) [2020]NSWCATAP198 at [52]). The success of the Appellant in the appeal cannot be described as a circumstance that is out of the ordinary. One or other of the two parties to the appeal were bound to be successful.
7. In our view, having regard to the way the appeal was conducted and the way in which it was resolved, the appropriate course is to make no order concerning costs of the appeal and to let the position identified in s 60(1) prevail. In other words, each party should pay their own costs of the appeal.
8. We make the following orders:
9. A hearing on the question of whether there should be an order for costs of the appeal is dispensed with.
10. The Appellant's application for an order that the Respondent pay the Appellant's costs of the appeal is dismissed.

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: 12 May 2022