EEC v Federation Council

Parties' Submissions

1. The Respondent relied upon the Appellant filing a Notice of Appeal on 12 April 2022 and the fact that, by the time the appeal was due to be heard, 8 July 2022, the appeal had been "on foot" for almost 3 months. The Respondent also relied upon the directions of the Tribunal of 20 April 2022 that any amended Notice of Appeal, together with submissions in support, were to be filed by 10 June 2022, and the fact that the Appellant did not file submissions until 15 June 2022, and did not file any amended Notice of Appeal prior to the hearing of the appeal.
2. The Respondent relied upon its letter to the Appellant's solicitors of 28 June 2022 enquiring whether the Appellant intended to file an amended Notice of Appeal, and the absence of response to that enquiry.
3. The Respondent submitted, accurately, that its Counsel had appeared and been ready to have the Appellant's Notice of Appeal heard on 8 July 2022. The Respondent relied, accurately, on the Appellant having abandoned the grounds set out in his original Notice of Appeal, and having sought leave to appeal on materially different grounds which were articulated in Counsel's submissions, and, it was submitted, did not constitute grounds of appeal.
4. The Respondent relied upon the fact that the grounds which the Appellant sought to agitate, and ultimately did agitate at the hearing of the appeal on 21 September 2022, necessitated the adjournment of the hearing on 8 July 2022. The Respondent submitted that the costs incurred and work done in preparation for the hearing on 8 July 2022 were "completely wasted".
5. The Appellant submitted that the "power to award costs is concerned with costs of the proceedings as a whole" and that, in circumstances where the Respondent did not, and could not have sought an order for costs of the proceedings as a whole, it would "not be appropriate" to make the orders sought by the Respondent. It was further submitted that it was "hard to see how the Court could be persuaded to make an order that the Appellant pay the costs of a part of the proceedings". Why that was said to be so was not explained.

Consideration

1. The principles governing the present application are not in doubt and require little reiteration. Pursuant to s 60(1) of the CAT Act each party to proceedings is to pay that party's own costs. Section 60(2) of the CAT Act provides that costs may be awarded in relation to proceedings "only" if the Tribunal is satisfied that there are "special circumstances warranting an award of costs". Section 60(3) records 6 specific matters to which the Tribunal may have regard when determining whether there are special circumstances warranting an award of costs, and, s 60(3)(g), any other matter which the Tribunal considers relevant. It is not in dispute that s 60 governs the current application.
2. In Cripps v G & M Dawson Pty Limited [2006] NSWCA 81 the Court of Appeal accepted that "special circumstances" for the purpose of proceedings in the Tribunal did not need to be "extraordinary or exceptional", it being sufficient that an applicant establish circumstances which were "out of the ordinary". In FFP v Cumberland City Council [2022] NSWCATAD 136, at [35], by reference to the decision in CEU v University of Technology Sydney [2017] NSWCATAD 280, it was accepted that it was sufficient to establish "special circumstances" that the circumstances relied upon were "out of the ordinary" and did not have to be "extraordinary or exceptional".
3. The Respondent relied upon the decision in Fitzpatrick Investments Pty Limited ATF The Number One Trust v Chief Commissioner of State Revenue [2022] NSWCATAD 159 in which it was accepted that an appellant pressing an untenable case until the "very last moment" forcing the respondent to have to address such case was an unnecessary disadvantage pursuant to s 60(3)(a) of the CAT Act.
4. The Tribunal does not accept that the power to award costs is constrained in the manner asserted by the Appellant. Not insignificantly, no authority for the Appellant's proposition was advanced. It would be surprising, and contrary to the clear terms of s 60(2) and (3), if the Appellant's construction of the section were accepted.
5. The Appeal Panel is comfortably satisfied that it has the power to award costs, at any stage of proceedings before it is enlivened once special circumstances are established. If that were not so, in cases where an appellant was ultimately unsuccessful, but not in circumstances which constituted special circumstances, there would be considerable incentive for an appellant to unreasonably prolong proceedings, and potential for injustice to the respondent.
6. Section 60(3)(a) of the CAT Act, on which the Respondent relied provides that, when determining whether special circumstances have been established, the Appeal Panel may have regard to whether a party has conducted proceedings in a way that has "unnecessarily disadvantaged" another party to the proceedings. Having regard to the orders of the Tribunal at first instance, if the Respondent is awarded its costs of 8 July 2022, it will not have been unnecessarily disadvantaged by the conduct of the Appellant.
7. Section 60(3)(b) of the CAT Act, on which the Respondent relied provides that, a party "unreasonably prolonging" the proceedings may be taken into consideration when determining whether special circumstances have been established. The adjournment of the proceedings on 8 July 2022 prolonged the proceedings, but, having regard to the fact that Appellant expeditiously prosecuted his amended grounds of appeal, the prolonging of the proceedings was not unreasonable.
8. Section 60(3)(c) of the CAT Act, on which the Respondent also relied, provides that in determining whether special circumstances have been established the Appeal Panel may have regard to, relevantly for present purposes, "whether a party has made a claim which has no tenable basis in fact or law".
9. In The Owners - Strata Plan 97383 v CLSM Pty Ltd [2022] NSWCATAD 59, at [22]-[27] the Tribunal reviewed authorities in which the meaning of "no tenable basis in fact or law" was considered. In DYH v Public Guardian (No 3) [2022] NSWCATAP 34, the Appeal Panel accepted, at [20]-[22] that "untenable" in the context of s 60(3)(c) of the CAT Act was "something like so weak as to be unarguable, rather than merely weak". In Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691, it was accepted that "untenable" was stronger than "weak", and included cases which were "so weak as to be unarguable", "so weak" that they "should not be argued", or "so weak" that it would be "an abuse to seek to maintain" them. The Tribunal concluded, at [27] that "untenable" in the context of s 60(3)(c) of the CAT Act involved "a substantial disparity between the strength of one claim and the weakness of its competitor".
10. It can reasonably be inferred that the Appellant abandoned his original grounds of appeal because his competent and experienced Counsel and solicitor formed the view that those grounds fell within one or more of the definitions which emerge from the authorities, and, unlike the grounds of appeal ultimately, albeit unsuccessfully relied upon, had no tenable basis in fact or law. The Respondent has established special circumstances warranting an award of the costs of 8 July 2022.
11. The Appeal Panel will accordingly grant the relief sought by the Respondent.

Order 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Appeal Panel dispenses with a hearing of the Respondent's costs application. 2. The Appellant is ordered to pay the Respondent's costs of and incidental to the hearing of the appeal on 8 July 2022 as agreed or assessed on a party and party basis. 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: 11 July 2023