DUBOW v FITNESS FIRST AUSTRALIA PTY LTD [2007] NSWSC 935 | Case summary

JUDGMENT 1 HIS HONOUR: In July 2004 the Plaintiff instituted proceedings in the General Division of the Consumer Trader and Tenancy Tribunal (hereinafter referred to as the CTTT) against the First Defendant, Fitness First Australia Pty Limited (hereinafter referred to as "FFA"). 2 In August 2004 one or more - a topic to which I shall return - orders were made in the Tribunal giving leave to FFA to be represented by a Solicitor. 3 On 1 and 2 March 2005 the proceedings were heard. At the conclusion of the Plaintiff's case there was a submission of no case to answer but before that submission was ruled upon, the Plaintiff withdrew her application to the CTTT as Section 28(5)(viii) of the CTTT Act 2001 permitted her to do. 4 FFA sought an order for costs. Written submissions were provided and on 5 May 2005 a member of the Tribunal, Ms Borsody, ordered that the Plaintiff pay 75% of FFA's costs. Reasons were provided and to these I shall also return. 5 On 29 September 2005 the Plaintiff instituted these proceedings against FFA and the CTTT seeking the following orders:- (i) Leave to appeal the decision of member Borsody of CTTT dated 5 May 1005. (ii) A stay of the costs decision. (iii) An order on the nature of certiorari setting aside the decision of the CTTT allowing legal representation for the First Defendant. (iv) Such further and other order as the Court deems appropriate. 6 Insofar as in her Summons the Plaintiff sought to appeal, the Summons was well outside the 28 days from the date of the decision limited by UCPR 50.3 for the time to appeal. Of course, insofar as prerogative relief was being sought, there is no particular time limit. The Summons contained no prayer for an extension of time although there was filed with it, and presumably served, an affidavit entitled "Affidavit as to Delay". 7 On 18 October 2005 the Tribunal filed an Appearance submitting to "the making of all orders that have been sought, and the giving and entering of judgment in respect of all of the claims that have been made, save as to costs." 8 On 27 October 2005 the Plaintiff filed an Amended Summons seeking orders to the effect:- (i) That the time for filing "this Summons" be extended to 5pm, 29 September 2005. (ii) An order that member Borsody of the CTTT erred in her decision and order made on 5 May 2005. (iii) A declaration that the Plaintiff was denied natural justice in relation to the decision and order… made on 5 May 2005. (iv) An order that the decision and order… made on 5 May 2005... as to costs be set aside. (v) In the alternative… an order that the matter be remitted to the CTTT for a hearing as to costs de novo. (vi) An order that the decision and order of the CTTT made on 23 August 2004 granting leave for the First Defendant to be represented by a solicitor be set aside. (vii) In the alternative to the orders sought at paragraphs (iv), (v) and (vi), an order that the costs of the Defendant be limited to $10,000. (viii) An order that the registration and enforcement of the order… made on 5 May 2005 be stayed pending further order of this Court. (ix) The Defendant pay the Plaintiff's costs of the proceedings. (x) Such further and other order as the Court deems fit. 9 By reference to a number of affidavits the Amended Summons contained an identification of the grounds relied upon for an extension of time and some of the grounds relied on in support of the contention that the decision and order of 5 May were erroneous. Other grounds for the latter contention were specified in the Amended Summons and were to the effect:- (i) That the order of 5 May was "ultra vires" having been made after the withdrawal of the proceedings by the Plaintiff. (ii) Ms Borsody misdirected herself in applying the test of "special circumstances" rather than the test of exceptional circumstances set out in Regulation 20(3)(a) of the CTTT regulations. (iii) Ms Borsody erred in adopting the perceptions of the Defendant as to the need to call 13 or 14 witnesses. (iv) Ms Borsody erred in finding that the Plaintiffs' requirement to have those witnesses available for cross-examination justified the making of a costs order. (v) Ms Borsody erred in finding the Plaintiffs' withdrawal of the proceedings justified the making of a costs order. (vi) Ms Borsody erred in failing to consider FFA's repeated breach of directions. (vii) Ms Borsody erred by making a finding as to costs contrary to the weight of evidence. (viii) The Plaintiff was denied natural justice in relation to the order of 5 May in that the Defendant failed to serve its submissions on the Plaintiff prior to the making of the order "and in breach of the directions therefore". (ix) The Defendant made a representation to the Tribunal on 2 March 2005 to the effect that its costs were "nowhere near the amount claimed by the (Plaintiff)." 10 Grounds of the application or appeal evident in the affidavits included statements to the effect :- (i) That at the time of the institution of proceedings in the CTTT the Plaintiff was employed in the Supreme Court but did not hold a practising certificate; (ii) That when leave was given to FFA to have legal representation, none of the requirements for legal representation was met; (iii) The stated basis for the costs order was the existence of "special circumstances, rather than "exceptional circumstances" as required by the regulations. 11 On 12 May 2005 Mr Gillard, the solicitor for the Plaintiff, provided to the Court a "Statement of Facts and Contentions" and served a copy of that on the Solicitors for the FFA. The "Statement of Facts and Contentions" does not in fact bear any notation that it was filed and the evidence bearing on the conclusion expressed in the first sentence of this paragraph is by no means as satisfactory as it might be and is not all one way. Nevertheless Mr Gillard gave evidence on the topic and I accept what he said. His evidence derives some support from the fact that on 12 May there was no order made, as there had been on some occasions previously, for the service of such a Statement. I accept also the evidence of Mr Orlizki, the solicitor for FFA, to the effect that at the time of preparation of the case for trial he was not conscious of having, or of having received, such a Statement of Facts and Contentions and no such document was in his file. 12 It is not necessary that I attempt to summarise the contents of that document. To an appreciable extent it reiterates the issues reflected in earlier documents the Plaintiff had served although it also raises a number of matters the sole relevance of which relates to the merits of the issue whether an order for costs should or should not have been made. 13 When the matter came before me for hearing on 31 October last, senior counsel appearing for the Plaintiff sought to file and rely upon a Further Amended Summons, a copy of which had been provided to the Defendant 11 days earlier. In that document the orders the Plaintiff claimed included:- (i) An extension of time up to 29 September 2005. (ii) That the order of the CTTT made on 5 May 2005 as to costs is invalid. (iii) An order under s65(3) and/or s67 of the CTTT Act that the order as to costs made on 5 May 2005 be set aside. (iv) A declaration under s65(3) and/or s67 of the CTTT Act that the CTTT had no jurisdiction to make an order for costs against the Plaintiff in the proceedings. (v) … (vi) An order under s67(3) of the CTTT Act that the question of costs be remitted to the CTTT for rehearing according to law. (vii) That a determination of costs made by the Review Panel on 9 March 2006, affirming the assessment of costs by the Costs Assessor John Hope Gibson, issued on 30 October 2005, be set aside. (viii) An order pursuant to s67(5) of the CTTT Act that the order made on 5 May 2005 be stayed pending the final determination of these proceedings. 14 The grounds relied on included the contentions that the CTTT acted beyond its jurisdiction and/or made an error of law in that:- (i) the order giving the First Defendant leave to be legally represented had been made:- (a) Despite a failure to comply with Regulation 13(iv) of the Regulations requiring the Plaintiff be given an opportunity to make submissions in respect of the application; and/or (b) On a ground not permitted by Regulation 14 of the Regulations. (ii) These failures to comply with Regulation 13(4) and Regulation 14 were not mere irregularities for the purposes of Section 32 of the Act and the Tribunal erred in so treating them. (iii) The Tribunal failed to determine whether there were "exceptional circumstances that warranted the awarding of costs". (iv) The Tribunal erred in concluding that the Plaintiff's mode of conduct of the hearing was a "special circumstance" for the purposes of Regulation 20(3)(a) of the Regulations. (v) The circumstances upon which the Tribunal relied in making the costs order were not capable of constituting "exceptional circumstances" for the purposes of Regulation 20(3)(a) of the Regulations. 15 The filing of the Further Amended Summons was opposed, as was the Plaintiff's application for an extension of time. 16 Given the nature of the issues which arose, I took the view that the answer to both of those questions should be deferred pending a hearing on at least the principal issues which the Plaintiff sought to canvass and that occurred. The conclusion at which I have arrived is that both of these applications should be granted albeit the application to extend time only on terms. 17 Relevant in this connection is that counsel for the Defendant advanced no reason of substance suggesting that the Further Amended Summons created any prejudice. Particularly relevant also is the fact that, although to the extent to which the proceedings constitute an appeal against a decision of the Tribunal, they are subject to the 28 day time limit imposed by UCP Rule 50.3, the Plaintiff at the time of filing the original Summons filed an affidavit expressly directing attention to the topic of delay; that Summons sought prerogative relief; there are reasonable grounds for seeking such relief; and in respect of such relief there is no such time limitation. 18 Of course in that prerogative relief is discretionary questions of delay are relevant but the circumstances are not such as would incline me to simply refuse relief on that ground. 19 In this connection I am also influenced by what I see as the number, nature, and extent of errors made by the Tribunal and by the fact that, between 5 May 2005 when the challenged order for costs was made and 29 September when proceedings in this Court were commenced, the Plaintiff took steps, albeit inappropriate, to challenge and have reviewed the decision of 5 May. 20 I am of course not unconscious that FFA incurred costs both before and after 29 September. An affidavit by the solicitor for FFA reveals that, inter alia:- (i) On 5 September 2005 an application for assessment of party/party costs was filed in this court. It extended to something of the order of 50 pages, many of which appear from their nature to be photocopies of other documents but the bill and its explanation extended to about 19 pages; (ii) On 18 September 2005 a letter from the costs assessor asking for copies of accounts and for submissions was received; (iii) On 21 September 2005 the Plaintiff wrote indicating objections in relation to various items and the application for assessment; (iv) On 17 October 2005 the solicitors for FFA wrote to the costs assessor making submissions, providing documents he had requested, making a number of assertions and providing other documents. The submissions and assertions extended to some 6 pages, the total to about 155 pages; (v) On 30 October 2005, the costs assessor made his determination in the amount of $14,067.70. On the same day he also issues an assessment of his own costs in an amount of $2,213.75; (vi) On 15 or 28 November 2005 the Plaintiff made application for review of the assessment; and (vii) On 9 March 2006, the Costs Review Panel affirmed the decision of the costs assessor and made an order for its own costs. FFA paid some $900 to obtain Certificates as to these matters (viii) On 6 June 2006, the Certificates were registered as judgments in the Local Court. 21 The Defendant also relies on failures on the part of the Plaintiff to comply with the time limits in various directions made during the course of these proceedings, including directions to file and serve a Summary of Facts and Contentions. In this connection it is clear that directions made on 14 December 2005, 15 February and 15 March 2006 were not complied with and that the same can be said of a direction made on 12 May for service of the transcript of proceedings in the CTTT. It may be that there is at least some reasonable excuse for this last mentioned default. 22 However, nothing was put before me to indicate that the Defendant has been significantly prejudiced in any way that cannot be compensated for by an order for costs or the imposition of conditions on the extension of time. During the hearing I raised with counsel for the Plaintiff that this might be my approach. Counsel submitted that I should not impose such terms but indicated the Plaintiff preferred the imposition of a condition rather than the refusal of an extension of time. The condition suggested was one of:- "The Plaintiff paying the costs of the application for the assessment of costs insofar as they were incurred after the expiry of the 28 day period within which (the Plaintiff) could have instituted proceedings as of right and prior to 29 September 2005 when these proceedings were instituted with such costs being agreed or taxed." 23 The details of the term suggested meet the justice of the case. Costs incurred on the First Defendant's behalf either before or after the period suggested were incurred with notice of the risks of an application or appeal such as this. I would also add that at least some errors in the reasons of 5 May must have been obvious to the First Defendant's legal advisers and that the affidavit as to delay must have put those advisers on notice that the mere fact the summons was filed out of time would not necessarily be fatal to the Plaintiff's success. 24 Given the Plaintiff's acceptance of the term quoted, it seems to me that the matter can be dealt with more cleanly if, at the time I order an extension of time, I also order the Plaintiff to pay the costs contemplated by that term. 25 I turn then to the substantive complaints as to what occurred in the Tribunal. 26 The Plaintiff, as has been said, instituted proceedings there in July 2004. On 11 August 2004 FFA faxed a request to the Tribunal which included the following:- "We have received a Notice to Appear at the CTTT on Monday 23 August in regards to the above file number. As the amount claimed by the applicant is in excess of $10,000, we request your approval to be legally represented at this hearing. Our reasons for this request are as follows:- 1. The amount claimed, $25,000 is a significant amount of money, and we feel it is necessary for us to be legally represented due to the substantial amount of the claim; and 2. The Applicant, Yolande Dubow, is herself a qualified legal practitioner (please refer to the attached email where she advises of this) and does not appear on the NSW Roll of Legal Practitioners because she is currently employed with the Attorney-General's Department as a Deputy Registrar of the Supreme Court. We would be unfairly disadvantaged should we be denied legal representation. Could you please advise if this request has been accepted by return to fax to…" 27 In the attached email the Plaintiff had observed that she had been a lawyer for 20 years. 28 In the Tribunal's file, that letter is followed by a sheet of handwritten notations:- "Respondent is requesting permission to be legally represented. Please consider. Thanks (signature) 11/8/04. As Ms Dubow is legally qualified the Resp may be legally represented. Please do not list before me - I know Miss Dubow. (initial) Graham Durie… 11 August 04." 29 The first three lines of the above were in handwriting different from the balance. 30 Following this in the file is a copy of a letter from the Tribunal to FFA advising that "As Miss Dubow is legally qualified, the Respondent may be legally represented." The original of this letter may or may not have been received. 31 The Plaintiff gave evidence that was not the subject of challenge to the effect that she had received no notice of the letter of 11 August or of Mr Durie's decision prior to 23 August 2004. 32 On 23 August 2004 the parties appeared before the Registrar of the CTTT. A number of directions were made concerning the provision of particulars and the supply of documents. What appears to be a standard form of orders (for making, altering, supplementing or deleting) together with handwritten changes and additions and which, it seems likely, was made during the hearing on 23 August contains the following:- "Leave is granted to applicant/respondent to be represented by a solicitor. The Respondent's representative shall advise the Registrar and other party in writing by no later than 4pm on 30/8/04 of the Representative's name, office, address for service, telephone and facsimile numbers. The Applicant's objection to legal representation by an office (sic) other than the legal counsel of the Respondent is noted. Also noted is the fact that the Applicant will not be independently legally represented." 33 While the first 2 of these paragraphs were substantially printed, the third was a handwritten addition to the form. The document also contains other directions and dates by which various steps in the proceedings were to be taken. Subject to matters referred to herein, neither the Tribunal's file nor any other evidence includes any expression of reasons for the Tribunal's orders just quoted. 34 Something over six pages of reasons were given for the decision on 5 May 2005 ordering the Plaintiff to pay FFA's costs. Included in those reasons was a reference to the letter of 11 August, CTTT Regulations 13 and 14 which were quoted, and the following:- "Another member of the Tribunal gave leave, in Chambers, for the Respondent to be represented. It appears that the Applicant was not given the opportunity to make submissions in relation to the application, despite Reg 13(4)." Leave was granted "as Ms Dubow is legally qualified". I note that this is not the same wording as the regulation, which is based on being entitled to practise as a legal practitioner. I note Ms Dubow's own letter to the respondent, copy provided to the Tribunal in which she states "I am entitled to the privileges of a practicing certificate from both the Law Society of New South Wales and the New South Wales Bar Association…". I further accept that issues as to whether Ms Dubow was entitled to practise were raised and agitated at the hearing. Nonetheless, bearing in mind section 32 of the Act, set out below, I accept that the irregularity in granting leave does not nullify the decision to grant leave.

32 Amendments and Irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after notifying the party to whom the amendment relates. (3) If a provision of this Act or the regulations is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings." 35 Relevant to the issue of whether there is error in these Reasons or in the decision(s) to permit FFA to be legally represented are some other of the statutory and regulatory provisions to which Ms Borsody referred. So far as presently relevant, these and some other provisions to which it is desirable to refer are:- The Act 36(1) Except as provided by this section, a party in any proceedings has the carriage of his or her own case and is not entitled to be represented by any person. (2) A party may, in accordance with the regulations, apply to the tribunal for permission to be represented by a party in the proceedings or in part of the proceedings. The tribunal may approve any such application and make an order permitting the party to be represented. 50(1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the notice or statement in accordance with the directions of the Tribunal. 53(1) Subject to this section and the regulations, the parties in any proceedings are to pay their own costs. (2) The Tribunal may, in accordance with the regulations, award costs in relation to any proceedings. DR I have a note this section was amended and a 3A added - CHECK The Regulations 13(1) An application under Section 36(2) of the Act by a party to the tribunal for permission to be represented in any proceedings may be made: (a) in writing addressed to the Registrar and lodged before the date set down for hearing of the proceedings, or (b) by oral submission at the commencement of the hearing. (4) An application for permission to be represented cannot be determined by the Tribunal unless each other party to the proceedings has been given an opportunity to make oral or written submissions in relation to the application. 14 An application under Section 36(2) of the Act by a party for permission to be represented in any proceedings may be made in any one or more of the following circumstances only:- (a) … (o) If another party in the proceedings is, or is to be represented by a person who is, entitled by law to practise as a legal practitioner, either in New South Wales or elsewhere. (p) … (q) If the Tribunal is of the opinion that the party would be placed at a disadvantage if not represented at the hearing. 20(1) This clause applies to the awarding of costs by the Tribunal as provided by Section 53 of the Act. (2) The Tribunal may award costs in relation to proceedings in respect of which the amount claimed or in dispute is not more than $10,000, or in respect of which no amount is claimed or in dispute, only if the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs. (3) In any proceedings in respect of which the amount claimed or in dispute is more than $10,000 but not more than $25,000, the Tribunal may award costs in relation to the proceedings only if:- (a) The Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs, or (b) The Tribunal has made an order under Section 30(2) of the Act in relation to the proceedings. (4) In any proceedings in respect of which the amount claimed or in dispute is more than $25,000, the Tribunal may award costs in relation to the proceedings in such circumstances as it thinks fit. 36 Nowhere in the body of her reasons does Ms Borsody use the term or, except insofar as may be implicit in passages I have quoted, address the requirement in Regulation 20(3) that there be "exceptional circumstances". 37 Before I turn to the legal issues that arise, it is appropriate to refer to other evidence as to what occurred on 23 August 2004. According to the Plaintiff, there was discussion before the Registrar of the CTTT about various directions that might be made and:- "At the end of the formal directions being made determining the timetable in fact for the filing of documents the Member indicated that leave had been granted to the parties to be represented by legal counsel. … At that point I got to my feet and voiced an objection, "I would like my objection to that noted" … and then there was a debate." (my emphasis) 38 Asked what objection she had made, the Plaintiff said that her recollection was that she objected to any legal representation or in the alternative to any representation that was not the senior legal counsel for FFA as that organisation had a legal department and would save on costs. Asked what happened then, the Plaintiff said that the Tribunal Member said, "Your objection will be noted". The Plaintiff then agreed with a question, "So, it is your evidence that you weren't given any other opportunity then to speak". A little later the Plaintiff said that advice that legal representation was to be allowed came in the process of making the formal order(s). She voiced her objection "and the Member indicated that her objection would be noted within the orders". (Again my emphasis) 39 Mr Kent, the solicitor for FFA gave a different account. He said that after a debate on the timetable, the topic of legal representation was raised. Ms Dubow indicated she would represent herself. Mr Kent indicated that FFA wished to engage his services and asked for an order permitting that. Mr Kent said that Ms Dubow responded by saying her only objection was that she believed FFA should be represented by their legal counsel, to which Mr Kent replied that if FFA was to be permitted legal representation, FFA should not be restricted as to whom. Mr Kent said that debate along these lines ensued for some time and that Ms Dubow was allowed to make the submissions she sought. 40 Mr Kent made a file note during or soon after proceedings on 23 August. What he wrote on the topic of legal representation appears at the end of the document and is in these terms:- "Noted obj'n to us appearing - should be legal counsel of Fitness First. - costs arg." 41 What conclusions should be drawn from the above? Firstly, Mr Durie's decision to permit legal representation of FFA was clearly made in breach of Regulation 13(4). Secondly, a question arises as to the operation or effect of his order. 42 In her decision of 5 May 2005, Ms Borsody seems to have regarded the order by Mr Durie as the operative order permitting FFA to be legally represented throughout the proceedings. On the evidence before me it is only Mr Durie's order that accords with Ms Borsody's description of an order made in Chambers in respect of which the Plaintiff was not given the opportunity to make submissions and one which was made "As Ms Dubow is legally qualified", words which appear in his handwritten notation of 11 August 2004. 43 Nevertheless, it does not seem to me that Ms Borsody's conclusion in this regard is correct. The application for representation which was dealt with by Mr Durie was that contained in the FFA letter of 11 August 2004 which refers to the receipt of "a notice to appear at the CTTT on Monday 23 August" and requests "approval to be legally represented at this hearing". (My emphasis.) There being nothing in the terms of the order which, expressly or by necessary implication, leads to the conclusion that it operated more extensively, the ambit of Mr Durie's order must be limited by the terms of the application which he was considering. 44 The order granting leave for FFA to be represented which was made on 23 August was a further order and the order which authorised the presence of legal representation for FFA thereafter. Ms Borsody was not the author of either of the orders made in August and was not thus in a position where one could infer she was simply correcting errors in the expression of orders she had previously made. Her, as I think erroneous, conclusion as to the order which was operational cannot govern what in fact had occurred. 45 The next question which arises is as to the validity of the order made on 23 August. That order does not suffer from the deficiency affecting that made by Mr Durie, viz. that the Plaintiff had no notice of it being sought but the question remains whether it was invalid for any other reason. Part of Ms Dubow's evidence indicates that what occurred on that occasion was simply a statement by the Registrar that leave for FFA to be represented "had been granted (previously)", although her later evidence of advice that legal representation "was to be allowed" rather indicates a fresh order was then being made. 46 Miss Dubow's evidence to the effect that she was given limited opportunity to speak on the topic provides a further basis upon which it was contended before me that any order for representation then made involved a denial of natural justice, although the weight to be given to this evidence is somewhat lessened by Ms Dubow's reference to there having been "debate" and the fact that, she having been a Registrar of this Court, it seems unlikely that she would readily have acquiesced in any steps taken by the Tribunal Member which deprived her of a fair opportunity to argue her case. 47 Mr Kent's evidence to the effect that debate ensued for some time and that Ms Dubow was allowed to make the submissions she sought obviously argues against there having been any denial of natural justice. 48 There was nothing in the demeanour of either of these witnesses to cause me to prefer one rather than another. However, apart from Ms Dubow's reference to there having been debate, and to what I see as some inherent unlikelihood of her not being allowed her entitlement to make submissions (at least without very substantial protest), the contemporaneous records also tend to support Mr Kent's account being more probable. Miss Dubow said that in addition to her contention that if FFA was allowed any legal representation, it should be by its own legal department, she had opposed FFA having any legal representation. Mr Kent said that the first of these was in fact the only submission she made and both his contemporaneous file note and the note of the Registrar, in referring only to this submission argue for Mr Kent's recollection being better than that of Miss Dubow. 49 In so concluding I do not ignore the reference in Mr Kent's file note to "costs arg". The Plaintiff's claim of a denial of natural justice is not assisted if those words were a reference to an argument in addition to that concerning the identity of the person to represent FFA. 50 Miss Dubow is the Plaintiff in this Court. She carries the onus of establishing on the balance of probabilities any facts which would amount to a denial of natural justice and I am not persuaded of any such facts. 51 Another argument advanced on behalf of the Plaintiff was that the order authorising representation on behalf of FFA was not one authorised by regulation 14(o) it being contended that Miss Dubow was not "entitled by law to practise as a legal practitioner". In this connection Section 25(1) of the Legal Profession Act 1987 provides:- "A legal practitioner whose sole or principal place of legal practice is this state must not practise as a barrister or solicitor and barrister without being the holder of a current practising certificate." 52 There was unchallenged evidence which I accept that Miss Dubow had been admitted - one may infer as a legal practitioner of some sort - but that at all presently relevant times she did not hold a practising certificate. 53 Although I do not need to finally decide upon this submission, I am disposed to the view that Miss Dubow was not "entitled by law to practise as a legal practitioner". There being no reason to read down the words of regulation 14(o), the prohibition in Section 25 seems to me to make this clear. In this connection it is to be noted that a number of sections of the CTTT Act refer to a "legal practitioner", defined in Section 4 to mean "a barrister, or solicitor, within the meaning of the Legal Profession Act 1987". The author of regulation 14(o) chose not to use the term "legal practitioner" and in these circumstances it is not appropriate to give to the substantially different expression used in the regulation the same meaning as "legal practitioner". 54 However, paragraph (o) of regulation 14 is not the only relevant paragraph. Account has also to be taken of paragraph (q) which I have set out above. The Plaintiffs' legal qualifications and the experience one might infer from her claim to have been a lawyer for 20 years entitled the Tribunal Member sitting on 23 August 2004 to take the view that FFA would be disadvantaged if it was not represented as the order made that day envisaged. 55 Thus, so far as the period after 23 August 2004 is concerned, the Plaintiff's contentions that there was a denial of natural justice or other error in the decision permitting FFA to be represented by a private, rather than an employed, solicitor fail. This conclusion makes it strictly unnecessary for me to come to consider whether, as Ms Borsody concluded, s32 of the CTTT Act led to the conclusion that what she saw as an irregularity in granting leave did not nullify that decision. However, it is proper to say that her decision was wrong. Despite its terms, it is not possible to regard s32 as extending to encompass denials of natural justice contrary to the express terms of s35 and, even if it did, to justify a Tribunal not "otherwise determining" where there was a breach of s35 or Regulation 13(4) - see Italiano v Carbone [2005] NSWCA 177 at [115], c.f.[169]; Maconachie v Kullenberg [2005] NSWCA 294 at [49]. 56 I turn then to the question of whether there was other error in connection with the order for costs Ms Borsody made. After setting out the terms of s53 and Regulation 20, what Ms Borsody said included the following:- "The respondent submitted that in this case the Tribunal should approach the issue on the basis that the amount claimed or in dispute is more than $25,000 as the Applicant claimed more than that amount in the particulars filed on 19 October. However, any amount above the Tribunal's jurisdictional limit of $25,000 was abandoned at that time. Therefore it appears to me that the amount in dispute in these proceedings was not more than $25,000. The issue of costs therefore falls to be decided based on whether there are special circumstances or whether sub-clause 20(5) applies. … The way the Applicant conducted the hearing was a special circumstance to be taken into account when looking at the issue of costs. I note that there has been no order under Section 30 of the Act regarding this. (Ms Borsody then quoted s30 and continued:) "The Applicant's mode of conduct of the hearing led to much greater costs being incurred then would normally be the case. This is a special circumstance for the purposes of the Regulation. I accept and apply to references to the award of costs in D'Alisa v "A-Builda" Home Building [2004] NSWCTTT 695 (sic). Costs are discretionary in the Tribunal (Consumer Trader and Tenancy Tribunal Regulations 2002 r.20). The rule for making costs orders as set out in Latoudis v Casey (1990) 170 CLR 534 and Ohn v Walton (1995) 36 NSWLR 77 is that costs should be awarded, not to punish one of the parties, but to compensate the other for the reasonable costs of having to bring the application." 57 Ms Borsody's reasons then include an extract from the reasons given in D'Alisa v "A-Builda" Home Building, including quotations from Latoudis v Casey and Ohn v Walton, to the effect that the rationale of an order for costs is that it is just and reasonable that a party to litigation who has caused another party to incur costs should reimburse that party not by way of punishment but by way of compensation. Ms Borsody continued:- "I am satisfied that the Respondent should have costs". 58 It was submitted on behalf of the Plaintiff that Ms Borsody's use of the expression "special circumstance(s)" when Regulation 20(3) provided that the Tribunal may award costs "only if … the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs" indicate that Ms Borsody applied the wrong test. 59 On behalf of the First Defendant it was submitted that the quotation of Regulation 20 indicated that Ms Borsody was conscious of and applied the correct statutory test and that her use of the expression "special circumstance(s)" was but a slip and not indicative of any legal error. At most, according to the Defendant's submissions, what should occur was an exercise of the power under Section 50(1) of the CTTT Act to correct any error in the written statement of the member's reasons. 60 The Plaintiff's submissions are to be preferred. In arriving at that conclusion I do not ignore the fact that among the meanings given to "special" in the Oxford English Dictionary is "of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree" and that "exceptional" is defined as "of the nature of or forming an exception; out of the ordinary course, unusual, special" and that in its definition of the word "special", the Macquarie Dictionary includes the word "exceptional". However I would respectfully agree with the observations of Balmford J in No. 2 Pitt Street Pty Ltd v Wodonga Rural City Council (1998) 104 LGERA 239 that, in the ordinary use of the expressions, "'exceptional circumstances' … must be more extreme, further from the ordinary, than 'special circumstances'". It does not seem to me that one can simply equate the 2 expressions. 61 Since this decision was reserved, it has come to my attention that in R v Wright [2005] NSWSC 588, Rothman J, in the course of considering the terms of s9D(1) of the Bail Act, providing that "An authorised officer or court is not to grant bail to a person in respect of a serious personal violence offence if the person is a repeat offender, unless the authorised officer of court is satisfied that exceptional circumstances justify the grant of bail", after considering some dictionary explanations of the terms "special" and "exceptional", expressed the opinion, at [25]:- "Thus it would seem that if a Court or authorised officer is satisfied that one or more factors either singularly or combined produced a circumstance or situation out of the ordinary or unusual the mandatory requirement otherwise contained within sub-section 9D(1) of the Act will no longer apply. "Special" on the other hand, seems to imply a unique situation or one which pertains only to that individual." 62 With respect to his Honour, these remarks do not seem to me to give sufficient weight to the use of the term exceptional nor to the stipulation that the exceptional circumstances must justify the grant of bail, a stipulation echoed in the CTTT Act by the requirement that there be exceptional circumstances that warrant the awarding of costs. 63 Nor am I disposed to accept the Defendant's argument that Ms Borsody's quotation of the regulation demonstrates that she was aware and conscious of the correct test to apply and her use of the word "special" was a mere slip of the tongue (or pen). I do not regard it as possible to regard here use of the word "special" - and not once but on 3 occasions - as other than indicating that that is the expression and test she had in mind. And it was the wrong standard to use. 64 The Defendant, as has been said, sought to rely on Section 50(1). However that provision is directed to textual errors or errors in expression not the correction of errors in reasoning. 65 I should also say something more about Ms Borsody's reference to D'Alisa v "A-Builda" Home Building and her extensive repetition of the quotations in that case from Latoudis v Casey and Ohn v Walton. These latter cases were ones where the normal rules as to costs applied. So far as may be gleaned from the report, which makes no reference to "exceptional circumstances" or the amount in dispute, so may have been D'Alisa v "A-Builda" Home Building. While I do not suggest that it was irrelevant for Ms Borsody to be conscious of the general purposes of costs orders, the statement she quoted, that "Costs are discretionary in the Tribunal", in what it did not say was, in the circumstances of the case before her, quite wrong. The questions she had to consider were whether there were relevant circumstances that could properly be regarded as "exceptional" and, if there were, whether those circumstances warranted the awarding of costs. If both of these questions were answered in the affirmative, the question would then arise as to the amount, proportion or definition of the costs the subject of any order. 66 These conclusions mean that the Tribunal's order for costs must be set aside or quashed. Although in the earlier stages of the proceedings the Plaintiff had sought consequential relief in this Court, ultimately the stance adopted on her behalf was that the appropriate course to follow in the circumstances was for the matter to be remitted to the Tribunal to be determined according to law. 67 In the circumstances of this case it seems to me that as a practical matter it does not matter whether the decision of Ms Borsody is quashed on the basis that she has exceeded her jurisdiction or set aside upon the ground that it reflects an error of law. However, as it seems to me that she did exceed her jurisdiction, the order will be that her decision be quashed. Although in the task in which it was engaged the Tribunal more properly fell into the category of a court rather than an administrative tribunal as the situation of such bodies was contrasted by the High Court in Craig v South Australia (1994-1995) 184 CLR 163 at 179, s53(2) in empowering the Tribunal to "in accordance with the regulations, award costs", and Regulation 20(3) in, so far as is presently relevant, conditioning the exercise of that power on the Tribunal being satisfied that there were "exceptional circumstances", make it clear that the Tribunal's power to award costs required it to be satisfied that there were "exceptional circumstances". In awarding costs in a situation where the Tribunal has not addressed that question nor expressly or implicitly made a finding that it was satisfied as to the existence of exceptional circumstances, the Tribunal exceeded the limits of its powers and thus exceeded its jurisdiction - see Craig v South Australia at p177. 68 Ms Borsody's power to award costs was only "in accordance with the regulations". She did not accord with this limitation and although the presence in the CTTT Act of sections such as 32(3) and 67 argue that the statutory limitations should not be regarded as going to jurisdiction, I prefer the conclusion at which I have arrived. 69 Accordingly it seems to me that the Court should make orders that include the following:- (i) Extend the time for the Plaintiff to appeal from the order of the Consumer, Trader and Tenancy Tribunal made on 5 May 2005 to the effect that the Plaintiff is to pay 75% of the costs of Fitness First Australia Pty Ltd as agreed or as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act, 1987. (ii) Order that the order of the Consumer, Trader and Tenancy Tribunal made on 5 May 2005 to the effect that the Plaintiff is to pay 75% of the costs of Fitness First Australia Pty Ltd as agreed or as assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act, 1987 be quashed. (iii) Order that the Plaintiff pay the costs of Fitness First Australia Pty Ltd of the application for the assessment of the costs ordered on 5 May 2005 to be paid insofar as such costs were incurred after 2 June and prior to 29 September 2005. 70 In light of the conclusions at which I have arrived, and the attitude of the Plaintiff at the hearing, it seems to me unnecessary to embark on any of the other issues raised in any of the summons. However, before making the orders foreshadowed, I will afford the parties an opportunity to reflect on the precise form of those orders. I will also hear any submissions on the topic of costs in this Court. In this connection it may not be inappropriate to reflect on the extent to which errors of the First Defendant have contributed to these proceedings, although obviously it is entitled to notice of any claim against it. I also remind the parties of remarks I made on the topic of costs at T64. 71 For the present, I will simply publish these reasons and stand the proceedings over for a short period.

DUBOW v FITNESS FIRST AUSTRALIA PTY LTD

At a glance

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Before

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Judgment (12 paragraphs)

Parties

Cases Cited (6)

Cited By (2)