FCZ v Illawarra Shoalhaven Local Health District

Costs - the applicable law

1. Costs in the Appeal Panel of the Tribunal are to be determined in accordance with s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act").
2. Section 60 provides: (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.
3. The Tribunal's power to award costs in this appeal is that found in s 60.
4. The Appeal Panel's task, therefore, is to determine whether there were special circumstances warranting an order for costs of the appeal, bearing in mind that the usual course is that each party pays its own costs.
5. In Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249, at [9], the Appeal Panel said: "Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary. These principles are well established and have been consistently applied in this Tribunal: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]."
6. The Tribunal's discretion to award costs must be exercised judicially, and not arbitrarily, capriciously or so as to frustrate the legislative intent: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [22].
7. A costs order is compensatory and not punitive: Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22].

Consideration of whether to determine the costs application on the papers

1. The Tribunal can make an order dispensing with a hearing, pursuant to s 50(1)(c) of the NCAT Act.
2. The parties had an opportunity to make submissions as to whether the issue of costs should be determined on the papers. FCZ opposed a hearing on the papers. We decided to list the costs application for hearing.

Recusal application

1. At the commencement of the appeal FCZ made an application that for the members of Appeal Panel recuse ourselves for bias. FCZ submitted first, that the Appeal Panel had encouraged the Crown to make a costs application. Second, she said that Acting Judge Coleman had previously determined against FCZ an application in the enforcement division of the Tribunal (FCZ v Crown Solicitor [2022] NSWCATEN 3). Third, the Appeal Panel had made statements which were wrong in the substantive appeal and that the decision to dismiss the appeal was "wrong".
2. The Respondent opposed the recusal application. In Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 8 at [22] - [24], the Appeal Panel said, which we adopt: 22. The High Court of Australia has given guidance on how to determine whether apprehended bias is established in various decisions. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6] the Court said: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial. 23. The Court went on, at [19] as follows: Judges have a duty to exercise the judicial functions when the jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose the judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then the objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. 24. In R v The Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1969) 122 CLR 546 the High Court considered an application for a writ of prohibition against the Commission on the grounds of apprehended bias and a breach of the principles of natural justice. The Court said, at pages 553-554: [The] requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.
3. FCZ offered no evidence, but merely an unsubstantiated assertion that the Appeal Panel had encouraged a costs application to be made by the Respondent. The assertion was not made out. We find there was no basis on this ground for recusal.
4. Apart from Acting Judge Coleman presiding over the enforcement proceeding involving the parties to this appeal, there is no evidence that his doing so would amount to either perceived or actual bias. Neither proceeding involved his Honour in making findings with respect to the credibility of FCZ or the reliability of her evidence. The proceedings involved different factual and legal issues.
5. The final submission made by FCZ, namely that the Appeal Panel had made false statements or that the decision in the appeal was wrong, is not a ground for an allegation of bias. If anything, FCZ could have appealed the decision to the Supreme Court. She chose not to do so.
6. We are satisfied that nothing about our determination of the appeal, or Judge Coleman's disposition of the enforcement proceeding would give a fair-minded lay observer reasonable apprehension that we might not bring an impartial mind in determining this costs application.
7. We refused the recusal application.

The respondent's submissions

1. The Respondent submits there are four reasons why the application for the costs of the appeal should succeed: 1. FCZ conducted the proceedings in a way that unnecessarily disadvantaged the Respondent (s 60(3)(a) of the NCAT Act) for the following reasons: 1. Grounds of appeal were not adequately particularised; 2. A delay in making and serving various interlocutory applications. 3. Not providing the Tribunal with documents which were relevant to the grounds raised in the notice of appeal. It fell upon the Respondent to prepare and file documents relied upon in the proceedings at first instance and the transcript of that hearing. 1. FCZ's case in relation to her appeal was weak. No ground of appeal was upheld, despite raising 13 grounds (s 60(3)(c) of the NCAT Act).; the proceedings were frivolous, vexatious or otherwise misconceived and or lacking in substance (s 60(3)(e) of the NCAT Act); and 1. FCZ failed to comply with the duty imposed by s 36(3) of the NCAT Act (s 60(3)(f) of the NCAT Act).
2. In addition, it is submitted that little weight should be given to the fact that FCZ was not legally represented in either preparing or running the appeal. Further, FCZ's submission of impecuniosity is an irrelevant factor to be considered when deciding whether to exercise a discretion to make a costs order pursuant to s 60 of the NCAT Act. The Respondent relies on D'Annunzio v North Sydney Council (No 2) [2022] NSWCATAP 98 (s 60(3)(g) of the NCAT Act).
3. The Respondent says the following considerations in Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24]-[25] are relevant to the exercise of the Tribunal's discretion to award costs: [24] Further, where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account. These include: (1) Costs are compensatory: see Latoudis v Casey (1990) 170 CLR 334; (2) That an unsuccessful party bears the costs of the successful party: Oshlack v Richmond River Council [1998] HCA 11 at [134]; (3) 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; see eg Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304. [25] Further, in some circumstances where s 60 of the NCAT Act regulates an award for costs, a limited order for costs might be made to reflect the fact that only some aspects of the appeal should properly be categorised as out of the ordinary and to make a general order for costs in favour of a successful party might be inappropriate having regard to principle that absent special circumstances each party is to pay their own costs. See eg McPherson v Mace (No 2) [2016] NSWCATAP 198.
4. The Respondent seeks a fixed amount for its costs. Should we have decided to make a costs order, we would not have undertaken the exercise of a costs assessment. Our decision would have been that costs be paid as agreed or assessed.

The Appellant's submissions

1. In short FCZ opposes an order for costs in the Respondent's favour and submits that each party should pay its own costs as the Respondent has failed to establish "special circumstances".
2. The Appellant submits the following in her reply: 1. FCZ did not conducted the proceedings in a way that unnecessarily disadvantaged the Respondent (s 60(3)(a) of the NCAT Act) for the following reasons: 1. The Respondent won, it was not disadvantaged; 2. FCZ was self-represented. The Respondent had all the resources of the Crown Solicitor. It is disingenuous to submit that the Respondent was unnecessarily disadvantaged given the "power and resource" imbalance no matter how misconceived or inefficient her participation in the appeal was; 3. There was an obvious institutional imbalance between the Respondent and the Crown Solicitor and the Tribunal; 4. The appeal grounds were adequately disclosed; 5. There was a delay in the Tribunal registry providing to her a copy of the sound recording which was out of her control; 6. The "fresh evidence" was a letter from Medicare which was received by FCZ a week before the hearing; 7. As a self-represented litigant, FCZ was not aware that the material filed in the Tribunal was not able to be accessed by the Appeal Panel. As a model litigant, the Respondent had an obligation to ensure all the relevant material was before the Appeal Panel. 1. FCZ contends that her case was not weak (s 60(3)(c) of the NCAT Act). If the law does not support FCZ having access to the documents, she says the law is weak. 2. The proceedings were complex for FCZ, but ought not to have been novel or complex for a sophisticated agency with the resources of the Crown Solicitor. The reply in the substantive proceeding by the Respondent was basic. Namely, that reliance was had to the decision in the Family Court. 3. FCZ contends that if the respondent truly believed that the first instance application and the appeal were misconceived, or not reasonably arguable, an application for summary dismissal could have been made. The Respondent chose not to do so. Only after a finding had been made by the Appeal Panel, FCZ submits that it is too late to retrospectively argue the strength of the appeal after the Appeal Panel rejected FCZ's submissions. FCZ also draws to the Appeal Panel's attention that there was only one aspect of the appeal that the Appeal Panel found was not reasonably arguable, namely, about whether FCZ was the person with whom the information related. Otherwise, the remainder of her grounds of appeal were reasonably arguable. 4. FCZ also contends that it is not unusual for the Appeal Panel to deal with basic or poorly drafted grounds of appeal filed by a self-represented litigant. FCZ said just because a ground of appeal is dismissed, or not found to be proved, that the finding does not render the ground misconceived or not arguable. 5. FCZ denies that she failed to comply with the duty imposed by s 36(3) of the NCAT Act (s 60(3)(f) of the NCAT Act). FCZ submits that she complied with, as far as reasonably practicable, timetabling orders imposed by the Appeal Panel. She had difficulty in some aspects of compliance because of a flood in her rental apartment which led to her submissions being half a day late (7 July 2022). Issues raised concerning anonymisation in respect of an intended agent were not out of the ordinary. The registry told FCZ to raise this issue at the hearing before the Tribunal. FCZ contends that no costs order should be made and each party pay its own costs of the appeal.

Consideration

1. Are there special circumstances warranting an award of costs for the purpose of s 60(2) of the NCAT Act?

Legal principles For the purposes of s 60(2) of the NCAT Act "special circumstances" are circumstances that are out of the ordinary. They do not have to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], citing Cripps v G & M Mawson [2006] NSWCA 84 at [60]. In Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 at [14] the Appeal Panel stated: 14. An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special. There are no scientific means by which the former can be ascertained. The evaluative process is necessarily one of impression informed by the particular provisions of section 60, which by section 60(3)(f) incorporates also a consideration of section 36(3) of the Act.

1. Even if special circumstances are established, the Tribunal has a discretion as to whether to award costs. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: Megerditchian v Kurmond Homes Pty Ltd at [11].
2. The respondent submits that there are a number of special circumstances warranting an order of costs in its favour as set out above.

FCZ conducted the proceedings in a way that unnecessarily disadvantaged the Respondent (s 60(3)(a) of the NCAT Act)

1. It is not uncommon in appeals by self-represented appellants, for the grounds of appeal to not be adequately particularised. That is particularly so, when contrasted to the way one would expect a legally trained representative to draft such grounds. FCZ's grounds of appeal were: 1. The Senior Member erred in fact in paragraphs [2], [3] and [8] of her reasons, and selectively and prejudicially quoted from the family law judgment in para [22] of her reasons, to a degree that created ostensible bias. 2. The Senior Member denied procedural fairness by failing to consider the following of FCZ's submissions: (a) In the Applicant's Summary of Legal Argument filed 14 November 2021 - paragraphs 29-30, 34-37, 38 and 40; (b) In the Applicant's Response to the Submissions of the Respondent filed on 17 December 2021 - paragraphs 5a, 6 (with respect to the Gillick issue), 8, 11 and 13. 3. The Senior Member is not authorised to interpret the Family Court's Reasons for Judgment [21]-[27]. 4. The Senior Member erred in holding that FCZ did not have sufficient parental responsibility to count as being an 'authorised representative' (see reasons at [63]-[66]) 5. The Senior Member erred in holding that FCZ was not the 'individual to whom the information relates' (see reasons at [67]). 6. The Senior Member erred in not holding that the primary purpose was to provide FCZ with medical information about her daughter (see reasons at [71(2)(a)] and note that the statement that HPP 11 was not in issue (at [35]) was not correct). 7. The Senior Member erred in not holding that the applicant was entitled to the requested documents pursuant to HPP 11. 8. The Senior Member erred in holding that disclosure would not be in the child's best interests (see reasons at [71(3)]). 9. The Senior Member was impermissibly speculative and took into account irrelevant matters at para [71(1)] of her reasons. 10. The Senior Member materially erred in fact at para [72(2)] of her reasons. 11. The Senior Member took into account irrelevant factors at para [72(3)] of her reasons. 12. The Senior Member improperly weighed the public interest for and against disclosure (see reasons at [69] and [73]). 13. The Senior Member erred in holding that there was no breach of HPP 7 (See reasons at [74]).
2. FCZ is not legally trained. Where, the appellant is self-represented, consistent with our obligation to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicality or legal forms (s 38(3) of the NCAT Act), subject to the requirements of procedural fairness, the Appeal Panel must consider whether a question of law is readily discernible from the stated grounds of appeal: Cominos v Di Rico [2016] NSWCATAP 5 at [13]; Khan v Kang [2014] NSWCATAP 48 at [15]; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. The grounds in our view are not such that they could be regarded as so hopeless, that they lack such particularity that the Respondent's solicitors or the Appeal Panel could not identify a question of law or whether leave to appeal is required. This is not a factor which amounts to "special circumstances".

Delay in making and serving various interlocutory applications.

1. The respondent contends that FCZ was "tardy" in requesting the sound recording. On or about 9 May 2022, FCZ requested a copy of the sound recording. On 22 May 2022, the registry indicated that the request was being processed urgently. On 24 May 2022, FCZ contacted the registry by email again indicating the urgency of her obtaining the sound recording to comply with the Appeal Panel's orders to provide a copy of the sound recording in the appeal by 19 May 2022. FCZ received the sound recording on 26 May 2022. A request to vary the timetable was made by FCZ which led to the Respondent having less time to prepare its case. The delay in FCZ obtaining the sound recording was not of her making. She made appropriate requests to obtain the sound recording to comply with the Tribunals orders. This is not a factor amounting to "special circumstances".
2. The submissions relating to an amendment to the notice of appeal, making an application to adduce fresh evidence and not serving an application for an order under s64 of the NCAT Act, whilst they are late and could be described as "tardy", do not amount to "special circumstances". They are not circumstances which are "out of the ordinary".
3. The failure of FCZ to put before the Appeal Panel the evidence she relied upon from the proceedings below, is a clear breach of the Tribunal's orders made to progress the appeal. FCZ says due to her lack of legal experience, she was not aware of the requirement to put this evidence before the Appeal Panel. This is because she assumed the Appeal Panel would have the evidence from the proceedings below. However, this submission is inconsistent with the correspondence passing between the parties concerning the agreed orders and a variation of those orders. Namely, the reference to the material before the Tribunal in the proceedings below was specifically referred to. However, this is a circumstance which is not out of the ordinary when a party is self-represented and not legally trained. The Appeal Panel regularly faces such a deficiency in the preparation of a self-represented party's appeal. In the absence of the Respondent placing before the Appeal Panel that material, the usual outcome is that the appeal fails because the appellant can not demonstrate error. This is not a "special circumstance".

FCZ's case in relation to her appeal was weak. No ground of appeal was upheld, despite raising 13 grounds (s 60(3)(c) of the NCAT Act); the proceedings were frivolous, vexatious or otherwise misconceived and or lacking in substance (s 60(3)(e) of the NCAT Act);

1. It is correct that we found grounds 5, 6 and 7 to be misconceived. These are factors that could be considered special circumstances to consider in deciding whether to exercise a discretion to make a costs order.
2. However, as to the remainder of the Respondent's argument that the grounds of appeal were not reasonably arguable, we disagree. The appeal could not properly be described as frivolous, vexatious or misconceived in its entirety. It is clear that FCZ genuinely believed there had been an error but she failed to establish any such error. She is not an articulate legal draftsperson, nor should that standard be expected of FCZ. We do not find "special circumstances" on the basis that the appeal was "lacking in substance", based on an "Untenable proposition of fact or law" or that it is otherwise not "reasonably arguable".

FCZ failed to comply with the duty imposed by s 36(3) of the NCAT Act (s 60(3)(f) of the NCAT Act).

1. We repeat our findings with respect to FCZ not meeting timetabling obligations, not placing the required material before the Appeal Panel and pressing an application dated 6 April 2022 for an order under s 64 of the NCAT Act after the hearing. Her actions, or inactions, while regretful and in some circumstances are explained, are such that do not in our view amount to a finding of a breach of the duty imposed by s 36(3) of the NCAT Act. This is not a factor amounting to "special circumstances".

Other matters s 60(3)(g) of the NCAT Act

1. The Respondent submitted that little weight should be given to the fact that FCZ was not being legally represented in either preparing or running the appeal. We disagree. This is a relevant factor when determining the strengths of the parties to the appeal and costs. It is always a consideration the Tribunal takes into consideration if it is asked to decide whether a party should be granted leave to have a legal representative appear in the proceedings. FCZ is not legally trained. She sought to pursue the appeal in the best way that she could and failed. Her attempt in doing so and her ignorance of administrative law proceedings, and the appeal process, does not in itself amount to "special circumstances".
2. We agree that FCZ's submission of impecuniosity is not a relevant factor to be considered when deciding whether to exercise a discretion to make a costs order pursuant to s 60 of the NCAT Act. It is disregarded.
3. We do not think it plain that the initial application for administrative review, or the conduct of the appeal were so unreasonable as to warrant an order for costs.
4. Even if we had found "special circumstances", an order for costs is not considered to be warranted in this case, noting that (1) the starting point in Tribunal proceedings is that each party bears their own costs, (2) FCZ was neither legally qualified nor represented with the result that she could not reasonably be expected to run her case as if she was and (3) this appeal, as with the first instance proceedings, was of a kind commonly encountered by the Tribunal.

Orders 1. The application that the members of the Appeal Panel recuse themselves is refused. 2. The application for an award of costs 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: 05 April 2024