EJE v Department of Education

NCAT Administrative and Equal Opportunity|2023-07-10

EJE (Applicant) Secretary, Department of Education (Respondent) Representation: EJE (Self Represented) Crown Solicitor (Respondent) File Number(s): 2022/00275923 Publication restriction: The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The applicant is to be known by the pseudonym "EJE". Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

By an Application for Miscellaneous Matters filed on 26 October 2022 the Department of Education (the agency) sought summary dismissal of EJE's Application for Administrative Review filed 14 September 2022 and an order for its costs of both applications.
I determined the agency's summarily dismissal application in the agency's favour in a decision published on 31 May 2023: EJE v Department of Education [2023] NSWCATAD 132. In short summary, I dismissed EJE's Application for Administrative Review pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the basis that it was misconceived because the Tribunal did not have jurisdiction to deal with it. That decision will otherwise speak for itself in this determination of the agency's costs application.

Publication restriction

The application was first listed before the Tribunal for a Case Conference on 10 October 2022. On that occasion, the Tribunal, differently constituted, made an order pursuant to s 64(1)(a) of the NCAT Act prohibiting publication of the applicant's name and assigning her the pseudonym "EJE". I have published these orders in these reasons. The issue has not been re-determined by me.

Dispensing with a hearing

Section 50 of the NCAT Act sets out the circumstances in which hearings are required in proceedings before the Tribunal. It relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - … (c) if the Tribunal makes an order under this section dispensing with a hearing, … … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal must not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal; in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
By order 6 of the Orders I made in disposition of the agency's summary dismissal application on 31 May 2023 I indicated, on a preliminary basis, my intention to dispense with a hearing on the issue of costs. I directed the parties to indicate in their submissions if they sought a hearing on this issue, and if so, to set out the reasons why they contended this was necessary.
Neither party has sought a hearing on the issue of costs. Having regard to the material before me and the submissions of the parties, I am satisfied in accordance with s 50(2) of the NCAT Act that the issues for determination can be adequately determined in the absence of the parties. I therefore dispense with a hearing on the issue of costs.

Evidence and submissions

The following material has been considered in reaching this determination:

Applicant 1. Administrative Review Application Form filed on 14 September 2022 and its annexures, 2. Bundle of documents and submissions filed on 4 November 2022, 3. Bundle of documents and submissions in reply filed on 29 November 2022, 4. Submissions in relation the agency's costs application dated 7 June 2023.

Agency 1. Application for Miscellaneous Matters filed on 26 October 2022 and attached submissions, 2. Bundle of documents filed on 26 October 2022 (s 58 bundle), 3. Submissions in reply filed on 21 November 2022, 4. Submissions in reply to EJE's costs submissions dated 16 June 2023.

Applicant

In her submissions filed on 4 November 2022 EJE submitted that she should not have to pay the agency's costs of the proceedings because she "has done nothing wrong by applying to NCAT for review". In her submissions filed on 29 November 2022 EJE submitted that there "is no justification" why she should pay the agency's costs because she made a valid internal review application which the agency failed to deal with appropriately.
In her costs submissions dated 7 June 2023 EJE disputes the conclusions I reached in relation to her purported applications for internal review and contends on this basis that she "did nothing that would warrant [she] pay costs for time [the agency] spent on this matter". She submits that before reading my decision she did not know about the operation of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) or how she could "use" this Act to obtain administrative review of decisions made by the agency. She appears to contend that her asserted continuing right to seek administrative review of the agency's decisions under that Act she should be considered in deciding the agency's application for costs in these proceedings. EJE submits that she is not a "legal professional and [has] no knowledge of the law outside of parts of the Privacy and Personal Information Protection Act (1998) therefore [she] assumed [she] had every right under [that] Act to apply for administrative review …".
EJE's 7 June 2023 costs submissions continue with the assertion that she should be compensated for the psychological distress the conduct of agency officers caused her. She submits that the "false information" held by the agency about her child was "documented" by the agency for "sinister reasons" "including perhaps with intent to child traffic [her] children…" She submits that she lives in constant fear that her youngest child will be abducted and never found due to the "false information" documented in the agency's records.
EJE submits that she "cannot afford to pay any sum of money" for costs because she only works limited hours on a minimum wage and depends on government supplements to her income, has no savings, her partner is unemployed and "[three-quarters] of the income coming into [her] household goes on rent". She submits that if a costs order is made, she is only capable of paying it off at the rate of $20.00 per week.

Agency

The agency contends that there are special circumstances that justify an award of costs in this case.
With respect to the considerations contained in s 60(3)(a) and (c) to (e) of the NCAT Act the agency submits that the proceedings were an abuse of process, being vexatious, misconceived and lacking in substance. It submits that the Application for administrative review was misconceived because the Tribunal did not have jurisdiction to deal with it, as no internal review had been conducted in relation to the impugned conduct, and the application was otherwise out of time. It submits that the application was vexatious because it contained complaints that had been the subject of two previous applications to the Tribunal which EJE had withdrawn and which the Tribunal had dismissed (the previous proceedings). [1] It submits that the application was without substance because the agency had complied with its undertakings to EJE at the end of the previous proceedings to attach statements provided by EJE to those of its records she disputed.
With respect to the s 60(3)(f) consideration, the agency submits that, having regard to the procedural history of the dispute, EJE failed to comply with her duty to give effect to the Tribunal's guiding principle because she sought to relitigate in these proceedings matters which had been the subject of previous proceedings, which she withdrew, and which were dismissed by the Tribunal.
With respect to the s 60(3)(g) consideration, the agency submits that it put EJE on notice by letter dated 7 October 2022 that it considered her Application for administrative review an abuse of process and set out the reasons why it considered that was the case in some detail. It submits that it invited EJE to withdraw the application on this basis, indicating that if she did not it would apply for its costs of the proceedings. It submits that EJE ignored that warning and continued the proceedings. It submits, in effect, that she did so at her own peril.
Additionally in relation to the s 60(3)(g) consideration, the agency submits that EJE has a history of unmeritorious litigation before NCAT's Administrative and Equal Opportunity Division. In this respect the agency cites 10 previous proceedings over the past two years, including EJE's two previous applications against the agency, which have been dismissed either on the basis that they were withdrawn or because they lacked merit. [2] It submits that EJE was specifically warned by an Appeal Panel of the Tribunal in EJE v Western Sydney Local Health District [2021] NSWCATAP 247 at [45] that she may face a costs order in future if there was evidence of a pattern of her initiating multiple unmeritorious applications under the PPIP Act.
The agency submits that EJE's previous applications against the agency resulted in it incurring costs despite EJE ultimately withdrawing them, only for the substance of those applications to be relitigated in these proceedings, resulting in it incurring further costs. It submits that it has incurred these additional costs unnecessarily and unreasonably.
With respect to EJE's costs submissions dated 7 June 2023 the agency submits that they substantially constitute an impermissible attempt by EJE to relitigate the issues determined in the Tribunal's summary dismissal decision. With respect to EJE's reference to the ADR Act, the agency submits that her suggestion that she has a continuing free standing right to challenge the agency's decisions under that Act is plainly wrong and that, in any event, a right to bring other proceedings, if it existed, is irrelevant to the question of costs in these proceedings.
The agency submits that the fact that EJE is not legally trained is irrelevant to its application for costs. It submits that in any event, by reason of the multiple applications she has made to NCAT under the PPIP Act, that she cannot reasonably be heard to claim ignorance of the applicable law or the Tribunal's procedure. It submits that EJE's assertion that she "assumed she had every right to apply for administrative review" should not be accepted because it had warned her by letter dated 7 October 2022 that the Tribunal did not have jurisdiction to deal with her application.
The agency submits that EJE's assertions about the alleged harm the agency's conduct has caused her is without evidentiary basis, contains scandalous allegations, are irrelevant, and ought to be rejected.
With respect to EJE' assertion that she is impecunious the agency submits that this is irrelevant to the exercise of discretion to award costs.

Applicable law

Section 60 of the NCAT contains the costs regime that is applicable in this case. It provides: 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 award 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.
With respect to s 60(3)(f) the s 36(3) duty is expressed as follows: 36 Guiding principle to be applied to practice and procedure (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. … (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle, and for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal. …
The term "special circumstances" is not defined in the NCAT Act. However, it has repeatedly been interpreted to mean 'circumstances that are out of the ordinary, but not necessarily those that are extraordinary or exceptional': Megerditchian v Kurmond Homes PL [2014] NSWCATAP 120 at [11]; CPD Holdings PL t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [24], [29]-[32]; Ingate v Andrews [2018] NSWCATAP 170 at [7]; Disapora Holdings Pty Ltd v Owners SP 686 [2019] NSWCATAP 250 (Disapora) at [17].
The discretion to award costs pursuant to s 60(2) must be exercised judicially and not capriciously having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [37]. It involves a two-step process. First, the Tribunal must determine if there are special circumstances that justify would justify an award of costs such that the discretion to award costs is enlivened. If the discretion is enlivened, second, the Tribunal must determine if that discretion should be exercised in favour of a costs order being made. The Tribunal retains discretion not to make a costs order even if special circumstances exist: Obeita v Australian College of Professionals PL [2014] NSWCATAP 38 at [81]; Brodyn Pty Ltd v Owners Corporation SP 73019 (No 2) [2016] NSWCATAP 224 at [23]-[26] (Brodyn); Alexander James Pty Ltd v Pozetu Pty Ltd (No, 2) [2016] NSWCATAP 75 at [14]; Disapora at [17].
Each case turns on its own facts: Kadsielski v Guca 1 Pty Ltd [2018] NSWCATAP 223 at [15]; Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [30]; Brunsprop Pty Ltd v Joanne Hay and Wes Davies [2015] NSWCATAP 152 at [27].
If the discretion to award costs is enlivened, in the exercise of the discretion the Tribunal is to have regard to the facts upon which the finding of special circumstances was based and the principles applicable to the awarding of costs generally. Those principles are: costs are compensatory; an unsuccessful party bears the costs of the successful party; whether by reason of the relative success of the parties on different issues and the time taken to determine those that an order for costs based on issues should be made; and, whether a costs order should be made to reflect the fact that only some aspects of the case should properly be characterised as out of the ordinary: Brodyn at [24]-[25].
A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with "ordered costs") and the Legal Profession Uniform Law (NSW): 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 (203 Castlereagh Street) at [38]. Section 60(4) of the NCAT Act empowers the Tribunal to make a fixed sum costs order if that is the appropriate course: 203 Castlereagh Street at [35].
There are several principles to be applied in determining if a lump sum costs order ought to be made.
First, the circumstances of the case must warrant the exercise of discretion to award costs in a lump sum. This will be particularly the case where the amount claimed is modest and the expense, delay and aggravation arising from a cost assessment is likely to extinguish the value of an order for costs: Beach Petroleum NL v Johnson (1995) 57 FCR 119 per von Doussa J. It will also be the case where the costs of the litigation will become even more disproportionate to its outcome if costs are referred for assessment: Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 per Beazley, P Meaher and Payne JJA (Bechara) at [18]. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Bechara at [13].
Second, the power to award lump-sum costs should only be exercised when the Tribunal considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Bechara at [12].
Third, a "broad brush" approach is appropriate. To require the same or a similar level of details as in a formal costs assessment would defeat the purpose of the lump sum order: Bechara at [14].
Fourth, it is usually appropriate to apply a discount in assessing costs on a lump sum basis: Bechara at [15]. In both Simone Starr-Diamond v Talus Diamond (no.4) [2013] NSWSC 811 and Huang v Drumm [2017] NSWSC 1006 the Court determined it was appropriate to apply a discount of 20% in circumstances where there was nothing extravagant or disproportionate on face of a bill of costs.

Consideration

To determine the outcome of the agency's costs application the Tribunal must pose and answer the following questions: 1. Are there special circumstances that justify an award of costs in this case such that the discretion to award costs is enlivened? 2. If the answer to (a) is "yes" how should the discretion to award costs be exercised in this case? 3. If the discretion is to be exercised by the making of an order for costs in the agency's favour, should a lump sum costs order be made as the agency submits? 4. If a lump sum costs order is to be made, what amount should be allowed? 5. If a lump sum costs order is to be made, should it be payable by instalments as EJE contends?

Are there special circumstances that justify an award of costs in this case?

I am satisfied that there are special circumstances that justify an award of costs in this case based on the s 60(3)(c) and (e) considerations. In my disposition of the agency's summary dismissal application, I determined that EJE's Application for administrative review was misconceived, being based on a misunderstanding of legal principle, as the Tribunal did not have jurisdiction to deal with it. It was thus a claim that had no tenable basis in law. I have published my reasons for reaching those conclusions, so it is unnecessary to repeat them here.
I am not satisfied that any other s 60(3) consideration is engaged in the circumstances of this case. In this respect consideration s 60(3)(a) relates to the conduct of proceedings, not the institution of proceedings. EJE has not engaged in any conduct in these proceedings that has disadvantaged the agency, other than perhaps maintaining the proceeding, despite the Tribunal's lack of jurisdiction to deal with it. However, that is a matter that goes to the s 60(3)(c) and (e) considerations. Otherwise, EJE's application was only before the Tribunal twice, once for a Case Conference and once for consideration of the agency's summary dismissal application, which was dealt with on the papers. That procedural history does not disclose any conduct of the proceedings by EJE that has disadvantaged the agency. Nor, for the same reasons, can the s 60(3)(b), (d), and (f) considerations be engaged in the circumstances of this case. With respect to the s 60(3)(d) consideration, the outcome of EJE's Administrative review application turned only on the relatively simple issue of the Tribunal's jurisdiction to deal with it. With respect to the s 60(3)(f) consideration, EJE did cooperate with the Tribunal's processes by attending the initial Case Conference and by complying with its procedural directions for the filing of evidence and submissions. There is no reasonable basis upon which she can be criticised on that account.
I am not satisfied that it is appropriate to take account of the 60(3)(g) considerations the agency contends for in determining if special circumstances exist in this case. The outcome of other litigation in which EJE has been involved cannot, in my view, give rise to special circumstances in this case. However, I am satisfied that these considerations are relevant in the way that I explain below to the exercise of discretion to award costs.
For the foregoing reasons there are special circumstances that justify an award of costs in this case. In this respect I am satisfied that two s 60(3) considerations are engaged. Those considerations are the same considered via different lenses. However, it is not necessary for the agency to establish that all, or multiple, s 60(3) considerations are engaged. It is sufficient that any s 60(3) consideration is engaged.

How should the discretion to award costs be exercised in this case?

I am satisfied that the discretion to award costs should be exercised in the agency's favour in the circumstances of this case.
As set out above, EJE's Application for administrative review was misconceived and had no tenable basis in law.
It was purportedly made in reliance upon the provisions of the PPIP Act, which is beneficial legislation: MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 at [171]. I consider that. I also consider that there is a public interest in persons being able to assert their rights under that Act without fear of incurring costs if they are unsuccessful. However, that consideration is not unconfined. There is no public interest in misconceived applications being asserted in purported reliance upon that Act. Permitting a misconceived applicant to avoid the costs implications of such conduct has the potential to bring the legislative scheme into disrepute given the significant public resources that may have to be deployed in responding to such applications.
Having regard to the general law, costs are compensatory, and a successful party is usually entitled to an award of costs in the absence of some limiting or disqualifying factor (limited success on issues, misconduct in the proceedings etc): Latoudis v Casey [1990] HCA 59; 170 CLR 534; Oshlack v Richmond River Council [1998] HCA 11; (1997) 152 ALR 83. There are no limiting or disqualifying factors in this case that would operate to deprive the agency of the benefit of the discretion to award costs once special circumstances have been made out. In this respect the discretion must be exercised judicially and not capriciously.
EJE's Application for administrative review was dismissed on the basis that it was founded upon a misapprehension of legal principle. EJE contends against a costs order being made on the basis that she is not a legal professional, has limited knowledge of the law, and was self-represented in the proceedings. I accept, as a general proposition, that the Tribunal should not expect a self-represented litigant to possess the same degree of knowledge of the law and legal process as a legal practitioner. Some latitude must be extended in this regard. However, there is a firm limit to which this is relevant on an issue of costs. Unmeritorious litigation is no less unmeritorious because it is pursued by a litigant in person. Such litigation results in the respondent involuntarily incurring the costs of its response to the litigation. Generally, a respondent is entitled to recover those costs in accordance with the compensatory principle.
In any event, although EJE is not a legal professional she has experience in litigating privacy complaints before NCAT's AEOD Division and its Appeal Panel. That experience at first instance is extensive. This has provided her with an opportunity to develop an understanding of the applicable law and legal process associated with such matters greater than most legal practitioners would have. Having regard to the extent of her prior litigation of privacy complaints EJE cannot reasonably be heard to say that she is unfamiliar with the applicable law.
Nor can EJE be reasonably heard to say that she did not appreciate the potential cost implications of pursuing an unmeritorious application. I accept the agency's submission that it explicitly warned EJE of this in its letter to her dated 7 October 2022. Additionally, this is not the first time EJE has faced the prospect of a costs order being made against her in a privacy administrative review proceeding. In EJE v Western Sydney Local Health District [2021] NSWCATAP the respondent sought its costs. In support of that application the respondent relied, in part, on the applicant's history of making unmeritorious applications under the PPIP Act. The Appeal Panel declined to award the respondent its costs, but stated at [45]: 45. Nonetheless, the Agency makes a powerful argument that it has been required to expend significant resources in defending this appeal and the proceedings below, in circumstances where each have been found to be misconceived and lacking in substance. There is a public interest in the Agency's limited resources not being wasted on time-consuming and misconceived crusades. Had there been better evidence of EJE initiating multiple unmeritorious applications under the Privacy Act we may have reached a different conclusion.
Having narrowly avoided a costs order in that proceeding it would be reasonable to expect EJE to act with prudence and responsibility in instituting further proceedings invoking the provisions of the PPIP Act. I am not satisfied that she has done so in the circumstances of this case. That is even more the case because the issues agitated in this proceeding are essentially the same as those agitated in the previous proceedings.
EJE also submits that a costs order should not be made because of her very limited income and incapacity to pay costs (except by way of small instalments as to which see following). I accept the agency's submission that EJE's capacity to pay costs is irrelevant to the question of whether a costs order should be made. In Northern Territory v Sangare (2019) 265 CLR 164 (Sangare) the High Court (per curiam) set out the principles that apply with respect to these issues at [27]-[35] (references omitted unless stated): Impecuniosity … 27. In Board of Examiners v XY, Chernov JA, with whom Neave JA agreed, identified difficulties of practice and principle that beset the approach of the Court of Appeal in the present case. As a practical matter, difficulties arise in determining the level of impecuniosity at which it would become a relevant consideration. There would also be substantial practical difficulties in determining, after the conclusion of the litigation, the unsuccessful party's financial standing. In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation: and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person. 28. The circumstance that the appellant is a public authority is likewise irrelevant. As McHugh J said in Oshlack v Richmond River Council: "The law judges persons by their conduct not their identity. In the exercise of the costs discretion, all persons are entitled to be treated equally and in accordance with traditional principle. The fact that a successful [party] is a public authority should not make a court less inclined to award costs in its favour. Gone are the days when one could sensibly speak of a public authority having 'available to them almost unlimited funds'. … 32. Whether a party is rich or poor has, generally speaking, no relevant connection with the litigation. It may be said, by way of qualification to that general proposition, that a party's financial position may be relevant to the extent that it may inform the structure of a costs order. For example, impecuniosity may justify providing for the payment of costs over time in order to avoid inflicting unnecessary hardship while at the same time improving the likelihood of compliance with the order. … … Futility 34. It was erroneous for the Court of Appeal to decline to make the order sought because it perceived that the award would be futile. The making of an order for costs is no occasion to invoke the concern of the Court of Chancery that equity not act in vain. That concern is a consideration attending the exercise of the discretion to grant equitable remedies. In stark contrast, the courts do not regard the impecuniosity of a defendant wrongdoer as a reason for declining to order the payment of damages found to be due to an injured plaintiff. Likewise, the favourable exercise of the statutory power to award costs is not the grant of an equitable remedy in respect of which a likely failure of compliance is a relevant consideration. 35. In any event, as a matter of authority, the courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so. The circumstance that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility. The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant. …
I accept the agency's submission that the allegations EJE makes about the harm and risk the agency's conduct has occasioned her are without evidentiary basis, are scandalous, and irrelevant to the issue of costs. Those allegations are rejected. Nor do EJE's costs submissions otherwise assist in determining the issue of costs. This is not an opportunity for EJE to reopen the issues I determined in disposition of the agency's summary dismissal application, or to attempt to generate a further dispute based on an asserted other legal right, which is misconceived in any event.
For the foregoing reasons, the discretion conferred by s 60(2) to award costs should be exercised in the agency's favour.

Should a lump sum costs order be made?

I am satisfied that this is an appropriate case in which to make a lump sum costs order. The costs claimed by the agency are relatively modest particularly as legal costs go. The cost, delay and aggravation associated with a costs assessment would extinguish the value of any order for costs and result in an escalation of the costs of the proceedings that would be disproportionate to its outcome. I am also satisfied that I have sufficient information before me to enable me to determine an appropriate sum.
In this last respect the agency relies upon an Affidavit of Tom Alexander Allchurch, solicitor employed with the Crown Solicitor, affirmed on 26 October 2022. At paragraph 3 of his Affidavit Mr Allchurch deposes that as of 26 October 2022 the agency had incurred legal fees in these proceedings of approximately $5,000.00. In support of that statement, Mr Allchurch annexes a schedule of his time worked on this case between 29 September 2022 and 26 October 2022 which itemises a total of 14.69 hours of work at the rate of $335.00 per hour for a total of $4,924.50. Having regard to the documents and submissions the Crown Solicitor has filed on behalf of the agency I have no difficulty in accepting that this cost has been incurred by the agency and that it is proportionate to the work performed by the Crown Solicitor to respond to EJE's Administrative review application. I am satisfied that Mr Allchurch's charge out rate is not excessive having regard to fees payable generally in the legal services industry.

What amount of costs should be allowed?

The agency applies for $2,500.00 in costs, which is less than 80% of the costs it has incurred in retaining the Crown Solicitor to respond to EJE's administrative review application (it is just over 50%). Adopting a broad brush approach and acknowledging the discount already provided for in the amount claimed I will allow that amount.

Should costs be payable by instalments?

As I have indicated above, in her submissions dated 7 June 2023 EJE states that if a costs order is made, she would only be able to pay it by instalments of not more than $20.00 per week because of her limited income. EJE has provided a payslip to prove her income. It establishes that she has casual employment status and that she worked 9 hours in the week ending 28 May 2023 earning a total of $315.27. I accept this is evidence that EJE is on a limited income. I also take, at face value, the other submissions EJE makes about her household income. I am satisfied on these bases that she would be unable to pay the amount of costs I have awarded the agency in a lump sum immediately or in the foreseeable future.
That circumstance may give rise to a situation where the agency is obliged to take enforcement action in the Local Court to recover its costs. This would involve delay, further costs, and no doubt aggravation, to both parties. This process might place more stringent requirements on EJE to prove her financial capacity, but on the view I take of her evidence, it is unlikely to result in any different conclusion to the one I have drawn in relation to her capacity to pay a lump sum.
Having regard to this consideration to assist the parties to avoid enforcement action I will make a costs order that is payable by the instalments that EJE proposes. However, her instalment will be payable calendar monthly on the first of each month in the amount of $87.00 (which is equivalent to $20.00 per week on a calendar month basis) to reduce the administrative burden of the instalment arrangement for both parties.
Consistent with what the Court said in Sangare at [32] the objective in structuring the costs order in this way is to avoid unnecessary hardship to EJE while improving the likelihood of compliance with the order for the agency. Nevertheless, to provide some security to the agency I will also order that if EJE defaults on these instalments the whole balance of costs order will become immediately due and payable. That will enable the agency to pursue enforcement in the usual way if that becomes necessary.

Orders

For the foregoing reasons I make the following orders: 1. A hearing of the respondent's Application for Miscellaneous Matters (costs) filed on 26 October 2022 is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. EJE must pay the Department of Education its costs of the proceedings in the lump sum of $2,500.00 by instalments of not less than $87.00 per calendar month, the first payment being due on 1 August 2023. Failure to pay any instalment will result in the whole balance becoming due and payable immediately.

Endnotes

Application No.s 2020/248473 and 2020/248476 which were later refiled as 2020/248213; and 2020/248217.
EJE v Service NSW and Commissioner for Fair Trading [2021] NSWCATAD 62; EJE v Western Sydney Local Health District [2021] NSWCATAD 84; EJE v Registrar of Births, Deaths and Marriages [2021] NSWCATAD 92; EJE v Department of Communities and Justice [2021] NSWCATAD 96; EJE v Charles Sturt University [2021] NSWCATAD 190; EJE v Western Sydney Local Health District [2021] NSWCATAP 247; EJE v Nepean Blue Mountains Local Area Health District [2021] NSWCATAD 289; and, EJE v Commissioner for Fair Trading [2022] NSWCATAD 33. 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

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Judgment (18 paragraphs)

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Cases Cited (28)