FZK v Secretary, Department of Communities and Justice (No 4)

Bechara trading as Bechara and Company v Bates [2016] NSWCA 294

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333

Birketu Pty Ltd v Atanaskovic [2025] HCA 2

Boughen v Kumar & Paentia (No 2) [2021] NSWCATAP 262

BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87

Brahmbhatt v Osorio [2023] NSWCATAP 188

Brodyn Pty Ltd v Owners Corporation - Strata Plan SNP 73019 (No 2) [2016] NSWCATAP 224

Brown v Wingecarribee Shire Council (No 2) [2020] NSWCATAD 225

Brunsprop Pty Ltd v Joanne Hay and Wes Davies [2015] NSWCATAP 152

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60

CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21

Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81

DYH v Public Guardian (No 3) [2022] NSWCATAP 34

eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94

FHH v Port Stephens Council (No 2) [2023] NSWCATAP 282

Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77

FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120

FZK v Secretary, Department of Communities and Justice (No 3) [2025] NSWCATAP 150

Gabrielle v Abood (No 4) [2023] NSWCA 100

Grasso v The Owners - Strata Plan No. 52399 [2022] NSWCATAP 91

Idoport Pty Limited v National Australia Bank [2007] NSWSC 23

Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116

Latoudis v Casey (1990) 190 CLR 534; [1990] HCA 59

McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

Michael Wilson & Partners v Emmott (No 2) [2024] NSWCA 309

News v Cotes (No 2) [2019] NSWCATAP 235

Owners Corporation - Strata Plan 4521 v Zouk [2007] NSWCA 231

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15

Re Filsell and Comcare [2009] AATA 90

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Sanna Construction Pty Limited v Kelly (No 2) [2025] NSWCATAP 203

Sethi v Secretary, Department of Communities and Justice (No 2) [2024] NSWCATAD 107

STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98

Sweeten v Haggerty (No 2) [2025] NSWSC 897

The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245

The Owners - Strata Plan No 82306 v Anderson [2018] NSWCATCD 1

The Owners - Strata Plan No. 47027 v Peter Clisdell Pty Ltd (No 2) [2018] NSWCATAP 46

The Owners Strata Plan No 79633 v Graorovska (No 2) [2022] NSWCATAP 245

Wilson v Dash (No.2) [2018] NSWCATAP 155

Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135

NSW Civil and Administrative Tribunal Administrative and Equal Opportunity Division Guideline August 2017

Secretary, Department of Communities and Justice (Respondent)

Department of Communities and Justice, Legal (Respondent)

Pursuant to an order made on 25 September 2024 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the appellant is prohibited. The appellant is to continue to be known by the pseudonym FZK.

Preliminary issues - paragraph 3

Issue 1 - recusal application - paragraph 4

Issue 2 - amendment to a document - paragraph 9

Issue 3 - whether the costs are legal costs - paragraph 12

Issue 4 - summary dismissal of costs application - paragraph 18

Dispensing with a hearing - paragraph 24

Award of costs generally - paragraph 30

No tenable basis - paragraph 42

Frivolous or vexatious - paragraph 44

Unsubstantiated assertions of improper conduct - paragraph 46

Self-represented parties - paragraph 51

Costs are compensatory not punitive - paragraph 52

Recoverable costs - paragraph 53

The Respondent's materials - paragraph 55

Respondent's evidence - paragraph 57

Respondent's submissions - paragraph 59

No tenable basis in fact or law - section 60(3)(c) - paragraph 60

Frivolous, vexatious, misconceived and lacking in substance - section 60(3)(e) - paragraph 71

Refusal or failure to comply with the duty imposed by section 36(3) - section 60(3)(f) - paragraph 73

Other relevant matters - section 60(3)(g) - paragraph 74

Appellant's submissions

Special circumstances - paragraph 81

Consideration in relation to special circumstances

Section 60 matters

Collateral purpose - paragraph 89

Section 36 NCAT Act - paragraph 91

Other matters - paragraph 94

Relative strengths - paragraph 102

Frivolous, vexatious or misconceived - paragraph 105

Self-representation - paragraph 112

Conclusion in relation to special circumstances - paragraph 114

Overall discretion - paragraph 117

Fixed or lump sum order - paragraph 120

Orders - paragraph 1

1. At first instance, the appellant contended that the respondent failed to comply with a summons (the Non-Compliance Hearing). That application was dismissed by a Senior Member on 6 January 2025 (the Compliance Decision). Subsequently, leave to appeal was refused and the appeal was dismissed: FZK v Secretary, Department of Communities and Justice (No 3) [2025] NSWCATAP 150 (the Appeal Decision). The respondent applied for their costs of the appeal, on the basis that there are "special circumstances" as contemplated by s 60(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
2. For the reasons set out below, including the lack of utility of the appeal, the unmeritorious submissions of the appellant, and unsupported serious allegations made against the Tribunal at first instance and the respondent, we are satisfied that there are indeed special circumstances; and further, that in all the circumstances and in the exercise of our overall discretion, a costs order should be made. Further, to avoid delay and the potential expense of a costs assessment, we are satisfied that an order for costs in a fixed sum is appropriate; however, we have discounted the amount sought by the respondent.

1. The appellant's submissions identify what are said to be five issues, followed by brief submissions in relation to each of the paragraphs of s 60(3) of the NCAT Act relied upon by the respondent. Four of those issues should be dealt with prior to considering an award of costs.

1. Issue 1 concerns an application that the Appeal Panel members recuse themselves from hearing the costs application. The argument in support of this relates to a criticism of the Appeal Decision; in particular, insofar as the Appeal Decision proceeded on the basis that the Compliance Decision was an interlocutory decision, as opposed to a decision which entitled the appellant to appeal as of right, by reason of what occurred at a call over and programming hearing for the appeal.
2. The appellant characterises this issue as conduct of "judicial misbehaviour and breach of members' code of conduct, let alone actual bias." We understand the application is brought on the basis of actual or apprehended bias.
3. We recently outlined the principles for recusal in FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120 at [17]- [34]. In accordance with QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15, we have each turned our minds to this question.
4. Neither the conclusion, nor the appellant's stated dissatisfaction with the Appeal Decision and in particular, that leave to appeal was required because the Compliance Decision was an interlocutory decision, founds a reasonable basis to conclude that we are unable to bring to bear an independent mind to the determination of the question of costs, nor that there is a reasonable apprehension of bias. As to actual bias, the focus is on prejudgment. We are each, separately, satisfied that, on an objective and subjective assessment, we would not bring preconceived conclusions to bear and that we are open to persuasion. As to apprehended bias, the logical link between the matters raised by the appellant and the feared deviation from the course of deciding the case on the merits, is not made out.
5. The application that we recuse ourselves is dismissed.

1. In Issue 2, the appellant seeks an amendment, pursuant to s 53 of the NCAT Act, for the solicitors employed by the respondent to write their names on their submissions and to sign those submissions. Section 53(1) of the NCAT Act provides that the Tribunal may, in any proceedings, make any amendment to any document filed in connection with a proceeding that the Tribunal considers to be necessary in the interests of justice.
2. Leaving aside the question of whether s 53(1) extends to a power to amend a party's submissions, which we need not decide, we do not consider it is necessary, in the interests of justice, to accede to the application for an amendment of those submissions. It is clear on the face of the document that the party on whose behalf the submissions were filed had the authority to do so. A similar argument was rejected by a partially similarly constituted Appeal Panel in FZK v Department of Customer Service [2024] NSWCATAP 185 at [37]- [44].
3. The application for an amendment to a document is dismissed.

1. Issue 3 raised by the appellant is that the amounts claimed for costs by the respondent are not legal costs. The appellant argues that the legal officers are employees of the respondent and that they are not from a law practice providing legal services to the respondent. The appellant further argues that the legal officers neither charge Attorney-General's rates, nor will the respondent be liable to pay the legal officers the Attorney-General's rate in addition to salaries. On this basis it is said that the amount claimed does not relate to legal costs.
2. In Birketu Pty Ltd v Atanaskovic [2025] HCA 2 at [20] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ), the majority of the High Court affirmed what had been decided in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 at 357 [68], 352 [50], 351 [47] as follows:

"Nevertheless emphasised in Bell Lawyers was that rejection of the Chorley exception did not entail any disturbance of the in-house solicitor rule, which was noted by Gageler J to have been established before the introduction of the Chorley exception and which was described by the plurality in terms of 'the well-established understanding in relation to in-house lawyers employed by governments and others, that where such a solicitor appears in proceedings to represent his or her employer the employer is entitled to recover costs'. The in-house solicitor rule was referred to as being applied in practice 'on the footing that the actual cost to [the employer] of the legal services provided by its employed solicitor would not exceed, in any substantial amount, the sum recoverable by [the employer] for professional legal costs'."

1. Moreover, practitioners employed by the Crown, or a statutory authority, or a corporation, are entitled to have their work assessed on the same basis as that of independent solicitors exercising comparable skills in the performance of comparable work. It is not the manner in which the practitioner carries on his or her profession which counts, it is the nature of the work, the time spent, and the skill, care and responsibility involved: Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60 at [21].
2. The Tribunal has, on a number of occasions, treated costs in respect of in-house lawyers employed by Government departments as capable of being awarded: Sethi v Secretary, Department of Communities and Justice (No 2) [2024] NSWCATAD 107; Brown v Wingecarribee Shire Council (No 2) [2020] NSWCATAD 225.
3. We do not accept the appellant's submissions that the claimed costs do not relate to legal costs. Contrary to the appellant's submission, an award of costs is in favour of the employer, and not in addition to salaries.
4. We reject the submission that the costs sought are not legal costs.

1. Issue 4 raised by the appellant claims that the fact that the respondent did not file a Notice of Representation with legal representative details constitutes an admission that it is self-represented and not legally represented. It is argued that self-represented parties are not entitled to legal costs. This submission proceeds to argue that, accordingly, the appellant seeks summary dismissal "on vexatious" grounds pursuant to s 55(1)(b) of the NCAT Act.
2. There is no requirement for a party to file a Notice of Representation under the NCAT Act or the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). A party is only required to provide an address for service, which is to be included in an originating document or reply: r 16(1) of the NCAT Rules. The Reply to Appeal form includes a section where the respondent must provide an address for service and representative details. The respondent duly completed that section in the Reply to Appeal filed 28 February 2025.
3. In correspondence to the Registrar of the Tribunal on 25 July 2025, the appellant requested that the Registrar request the respondent to file a Notice of Representation "to correct the (respondent's) error" and that the costs application not be listed until the notice (signed by the respondent's "legal representatives") is filed. However, as there was no requirement to file such a document, the appellant's requests are not relevant to the determination of the costs application brought by the respondent.
4. The request that the costs application not be "listed" or heard is refused.
5. Further, there is no merit in the submission that the respondent was not represented in the appeal proceedings by legal practitioners in respect of whom it is entitled to recover legal costs if successful; as explained in relation to Issue 3. Accordingly, there is no basis to entertain an application under s 55(1)(b) of the NCAT Act.
6. The application to dismiss is dismissed.

1. The Appeal Panel gave the parties an opportunity to provide submissions in relation to whether the Appeal Panel could dispense with a hearing of the costs application. The appellant opposed such a course. The appellant argues that the proposing party, the Appeal Panel, and the agreeing party, the respondent, have a burden of proof as to why a hearing should be dispensed with. It is argued that s 50(2) of the NCAT Act requires the Tribunal to be satisfied that the written materials before it are adequate to determine the issues, therefore proposing such an outcome before the filing of the materials, is prejudgment and actual bias. The appellant argues that as there is no affidavit filed, a hearing is warranted.
2. We have considered the appellant's opposition to dealing with this application on the papers and dispensing with a hearing. Nevertheless, we are satisfied that the written submissions and materials enable us to deal with the application on the papers. Whilst the respondent did not file an affidavit, we are not bound by the rules of evidence (s 38(2) of the NCAT Act) and we had before us a detailed schedule of how the costs were calculated, including the rate, the time taken and nature of the task and the basis for calculating the amount sought, including where no charge was calculated and the overall discount from that position.
3. In Re referral by Deputy Secretary, Local Government, under s 438HA of the Local Government Act 1993, concerning Mr Thaler, a Councillor [2025] NSWCATOD 102, it was said at [16]:

"In the event a hearing is the starting position, the factors that were material to my consideration to dispense with a hearing include:

(1) In favour of holding a hearing:

(a) The Objects of the Tribunal include 'to ensure that the Tribunal is accountable and has processes that are open and transparent; and to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members': ss 3(f) and (g) of the NCAT Act.

(b) The importance of open justice: John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476; John Fairfax Publications Pty Ltd v Ryde Local Council (2005) 62 NSWLR 512; [2005] NSWCA 101 at [60]- [63].

(c) The principles of open justice apply to the Tribunal: Forest v Suzanne [2022] NSWCATAP 188 at [30].

(a) In relation to 'proceedings', the starting position is that a hearing is required (unless it falls into one of the specified exceptions) and that hearings are open to the public (unless otherwise ordered): ss 50 and 49 of the NCAT Act. However, this decision concerns a question which arises anterior to the commencement of proceedings. The issues the subject of this decision do not concern an extant proceeding. There is no 'proceeding' in the Tribunal, to decide whether or not to accept the referral. There is no proceeding unless and until the Tribunal accepts the referral.

(b) If and when the Tribunal decides to conduct proceedings, the Act expressly provides for the circumstances of when a hearing of the referred proceedings may be dispensed with: s 470B.

(c) By way of contradistinction, the Act does not expressly refer to a hearing in relation to the decision to conduct proceedings. However, I accept that where the rules of procedural fairness required it, this might be implied.

(d) This decision relates to the question to whether the Tribunal should accept the referral; it is not the occasion to test evidence, nor to form concluded views on the submissions.

(e) This is not the occasion to form concluded views in relation to the allegations of misconduct or the defences to the contentions.

(f) The parties provided comprehensive written submissions.

(g) No oral evidence is required; and nor is there any need for cross examination.

(h) This decision will be published and will expose the Tribunal's reasoning and the submissions.

(i) Where, as here, the hearing would likely simply amount to a recitation of the written submissions, there is a public interest in conserving the Tribunal's resources and the costs to the parties.

(j) The guiding principle of the NCAT Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings before the Tribunal: s 36(6) of the NCAT Act.

(k) No issue was raised as to prejudice, if this decision is undertaken without a hearing; although I note the Councillor's objection to this course."

1. Similar considerations arise here. This decision concerns the costs of an appeal against an interlocutory decision. The respondent's reasoning for their calculation of costs is, here, well exposed and can be assessed against the background well known to the parties and the Appeal Panel; as set out in the Appeal Decision. As detailed further below, in considering a fixed sum costs order, it is appropriate for the Appeal Panel to take a "broad brush" approach: Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 (Bechara) at [12]-[15]; Sweeten v Haggerty (No 2) [2025] NSWSC 897 (Sweeten) at [32]. Accordingly, no oral evidence is required; and this is no occasion to test the evidence. Further, as the respondent articulated its position in detail, both as to the relevant legal principles and an analysis of the issues and quantum, the appellant had the benefit of those submissions and materials which provided an adequate opportunity to reply. There are costs savings in dispensing with a hearing and we are not persuaded that the grounds relied upon by the appellant in opposition to dealing with the matter on the papers merit a hearing, when viewed against the factors weighing in favour of dispensing with a hearing.
2. Notwithstanding the appellant's objection to the Appeal Panel dispensing with a hearing, having afforded the parties an opportunity to make submissions and having taken those submissions into account, we are satisfied that this is indeed an appropriate case in which to dispense with a hearing.
3. In accordance with s 50(2) of the NCAT Act, a hearing in relation to the application for costs is dispensed with. The proceedings are determined on the basis of materials provided to the Tribunal: s 50(4) NCAT Act.

1. Section 60 of the NCAT Act regulates costs of proceedings in the Tribunal. Section 60 provides:

60 Costs

(1) Each party to the 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.

1. The usual rule is that a party is to pay their own costs of proceedings but, as the legislation makes clear, the Tribunal may make an order for costs if satisfied that there are "special circumstances": s 60(2) NCAT Act.
2. Six leading principles are apposite.
3. First, special circumstances are circumstances that are out of the ordinary. It is not necessary to establish extraordinary or exceptional circumstances: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] quoting Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 per Santow JA at [60]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
4. Secondly, the onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in its favour: see McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38].
5. Thirdly, the Tribunal is to consider whether the circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear its own costs: BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]. The mere existence of one of the enumerated factors in s 60 of the NCAT Act will not of itself be sufficient to warrant the conclusion that there are special circumstances.
6. Fourthly, each case will depend on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay and Wes Davies [2015] NSWCATAP 152 at [27].
7. Fifthly, mere success (or failure) of an application does not give rise to special circumstances: The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46].
8. Sixthly, the discretion to award costs must be exercised judicially and 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 [48].
9. Overall, what is required is for the Tribunal to exercise its discretion in a manner which is fair and reasonable having regard to the particular circumstances of a particular case.
10. The decision to award costs pursuant to s 60(2) of the NCAT Act involves, in effect, two decisions. The first is the Tribunal's satisfaction that there are special circumstances warranting an award of costs. The satisfaction involves a degree of subjectivity and thus, in a broad sense, may be described as a discretionary decision (as described in respect of similar legislative provisions in a different statutory context in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [20] per Gleeson CJ, Gaudron and Hayne JJ). If the Tribunal has regard to any matters as set out in s 60(3) of the NCAT Act, the matters must be given due weight.
11. As s 60(2) of the NCAT Act makes clear, if the requisite satisfaction is reached, the Tribunal "may" make the order. Satisfaction as to the existence of special circumstances merely enlivens the discretion to award costs rather than mandating an award of costs: Al-Aaraj v Commissioner of Police, NSW Police Force (No 2) [2025] NSWCATAP 166 at [40]; Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [32]. This necessitates the making of a second decision (which we term the overall discretion) as to whether in all the circumstances, an award for costs should be made.

1. The interpretation of s 60(3)(c) of the NCAT Act was considered by the Appeal Panel in DYH v Public Guardian (No 3) [2022] NSWCATAP 34. The Appeal Panel stated at [20]-[22]:

"20 The Victorian case law considered an equivalent provision to s 60(3)(c) of the NCAT Act provides some helpful analysis. The Victorian Civil and Administrative Tribunal may also award costs if fair to do so having regard to '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' (Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT ACT"), s 103(3)(c). The meaning and operation of s 103(3)(c) of the VCAT Act were considered by Senior Member Byard in Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691. He said at [14] - [15]:

"The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a 'tenable basis in law or fact' is a consideration included within the consideration of the relative strengths of the claims of the parties.

This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party's claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to 'costs following the event'. It would compromise the general rule created in s 109(1)."

21 The Senior Member also commented (at [19]) that '"untenable" in the context of s 109(3)(c) means something like so weak as to be unarguable, rather than merely weak'.

22 In our view, the Senior Member's observations apply with equal force to s 60(3)(c) of the NCAT Act."

1. Special circumstances may be established because a claim is lacking in substance, even if such a finding was not expressly made in determining the substantive application, provided such a finding is not inconsistent with the reasons given for dismissing the application: Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 (Zucker) at [52].

1. In respect of s 60(3)(e) of the NCAT Act (whether proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance), the Appeal Panel has adopted the statement of Ipp JA in Owners Corporation - Strata Plan 4521 v Zouk [2007] 69 NSWLR 61; [2007] NSWCA 23 (Zouk) at [45], that "lacking in substance" means not "reasonably arguable". It is a meaning, his Honour held, not dissimilar to "frivolous, vexatious, misconceived": Zouk at [45], which has been applied to s 60 of the NCAT Act by this Tribunal: Zucker at [50].
2. The words "frivolous" and "vexatious", used together, may signify that the application lacks a legal foundation or that it is "not legally properly based": Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 (Fox v Commissioner of Police) at [26], quoting 601 Management Company Pty Ltd v Commissioner of State Revenue [2011] VCAT 2129 at [12], and Fox v Commissioner of Police at [28] citing Re Filsell and Comcare [2009] AATA 90 at [33]. The term "vexatious" "can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are so obviously untenable or manifestly groundless as to be utterly hopeless": Re Filsell and Comcare [2009] AATA 90 at [33], cited in Fox v Commissioner of Police at [28].

1. Allegations of deliberate falsehood, perjury, bad faith, personal impropriety and corruption might be described as scandalous: Young v Cooke [2016] NSWSC 408 at [50(c)] per Garling J; Munsie v Dowling (No 4) [2015] NSWSC 37 at [18] per Hoeben CJ at CL. Allegations are scandalous where they scandalise the Court or an individual by being on the Court record: Young v Cooke at [50(c)]. Such allegations have "no place in the determination by the Court of whether relief ought to be granted" and in part led the summonses to be struck out: Young v Cooke at [50(c)]. Similarly, in Munsie v Dowling (No 4), Hoeben CJ at CL said that the defendant's "scandalous and unsubstantiated" assertions of judicial corruption and of personal impropriety on the part of the opposing party led, in part, to the defendant's submissions being struck out as "scandalous and embarrassing": at [18], [25].
2. Scandalous allegations might amount to an abuse of process: ZSJ v ZSK [2021] NSWCATAP 144 (ZSJ v ZSK) at [57]. Alternatively, an application that seeks to vindicate findings of a criminal offence or misconduct might be described as having a collateral purpose, as those findings cannot be made in this forum: Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232 at [36]- [48] per McCallum JA, MacFarlan JA agreeing at [1], Leeming JA agreeing at [2]; Attorney-General (NSW) v Wentworth [1988] NSWCA 8; (1988) 14 NSWLR 481, 491 per Roden J.
3. Various appeal panels have considered whether scandalous allegations may or may not constitute "special circumstances" for the purpose of an award of costs under s 60 of the NCAT Act. However, we note that concerning an award of costs, every matter depends on its facts and is to be viewed in the context of its own proceedings.
4. This is exemplified by the different outcomes of the cost applications of the following three decisions. On the one hand, in Liang v University of Technology, Sydney [2019] NSWCATAP 17 at [19], costs were awarded in part due to allegations contained in the appellant's appeal submissions which were described by the Appeal Panel as "scandalous". These allegations, when considered cumulatively with other matters, were found to constitute special circumstances under s 60 of the NCAT Act, although the Appeal Panel noted that the appellant was self-represented. On the other hand, in ZSJ v ZSK and MSP Consulting and Building Constructions Pty Ltd v Karkoulas (No 2) [2016] NSWCATAP 183 (MSP Consulting), despite scandalous submissions made by the appellant, costs were not awarded, as lack of legal representation was found to tip the balance against an award of costs: ZSJ v ZSK at [57]; MSP Consulting at [35].
5. All three matters concerned the grant of an award of costs against an appellant who was self-represented.

1. Although lack of representation can tip the balance against an award of costs, the Appeal Panel has noted that a party, including a self-represented party, does not have a "licence to use NCAT's proceedings to make scandalous allegations against an opponent": ZSJ v ZSK at [56].

1. An award of costs is intended to be compensatory and not punitive: Latoudis v Casey (1990) 190 CLR 534 at 567; [1990] HCA 59; Grasso v The Owners - Strata Plan No. 52399 [2022] NSWCATAP 91 at [12(6)].

(1) the costs of, or incidental to, proceedings in the Tribunal (s 60(5)(a) NCAT Act); and

(2) 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 (s 60(5)(b) NCAT Act).

1. According to the NSW Civil and Administrative Tribunal Administrative and Equal Opportunity Division Guideline August 2017 on costs (Costs Guideline), a party can seek the following costs:

(1) the fees charged by the lawyer for preparing and running their case;

(2) the out-of-pocket expenses (disbursements) of their lawyer; and/or

(3) the out-of-pocket expenses (disbursements) of a self-represented party.

1. The respondent submits that the Costs Guideline provides that a party may ask for the fees charged by the lawyer for preparing and running the case. The respondent relies on the work performed by four solicitors employed by the respondent and submits that the levels are appropriate for the performance of work in respect of the appeal.
2. The respondent submits that the Appeal Panel should make an order for a fixed sum of $6,886.23, in accordance with paragraph 11(a) of the Costs Guideline, being the total sum of the legal costs sought by the respondent on a discounted basis, or such amount as the Appeal Panel considers appropriate.

1. The respondent included, as part of its written submissions dated 9 July 2025, a schedule of the respondent's costs in preparing for the appeal. The schedule contains information about:

(1) the solicitors who carried out the work,

(2) the solicitors' hourly rate and daily maximum,

(3) a weblink to the Attorney General's rates for legal representation, and

(4) a table which includes the date, action, solicitor, time taken and time claimed for the legal work carried out for the appeal.

1. This schedule appears to have been prepared for the purpose of the written submissions. There is no accompanying affidavit by any of the solicitors for the respondent attesting to the truth or accuracy of the information contained in the schedule, nor has the respondent submitted any evidence of the time and cost of the legal work performed for the appeal, for example by way of screenshots.

1. The respondent relies on s 60(3)(c), (e), (f) and (g) of the NCAT Act.

No tenable basis in fact or law - section 60(3)(c)

1. In the respondent's view, the appeal had no prospects of success as their case was without foundation as to be hopeless. It is submitted that the appellant made claims that had no tenable basis in fact or law (s 60(3)(c) of the NCAT Act) and was weak in comparison to the respondent's case.
2. The respondent contends that the appellant was fully aware that the arguments raised and maintained in support of the appeal, and that pressing the respondent's non-compliance with the summons, were baseless and misguided. The appellant elected to pursue the appeal in the face of their knowledge that the appeal had no prospects of success.
3. The respondent submits that the transcript of the Non-Compliance Hearing on 17 December 2024 establishes the great lengths undertaken by the Senior Member to explain the uncontroversial jurisprudence regarding a party's obligation to comply with a summons. It was explained that the respondent's obligation is limited to the production of information in its custody and control. The respondent's written submissions dated 13 December 2024 were consistent with the Senior Member's explanation.
4. At the Non-Compliance Hearing, the respondent maintained its position that the "2017 SAP Manual" sought by the appellant under the summons was not held by the respondent. The respondent made oral submissions on the day and provided affidavit evidence by Kimberly Tram, a payroll team leader employed in Shared Services and Customer Experience in the Corporate Services Division in the Department of Communities and Justice, in support of its contention that the respondent had complied with the summons as the 2017 SAP Manual was not in the respondent's "custody and control".
5. During the Non-Compliance Hearing, the Senior Member also explained to the appellant that reliance on clause 12(1)(b), schedule 4 of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) to assert that the respondent had an immediate right of access to the 2017 SAP Manual held by a third party agency, was groundless. That clause provides:

12 Government information held by agency

(1) A reference in this Act to government information held by an agency is a reference to -

...

(b) information contained in a record held by a private sector entity to which the agency has an immediate right of access ...

1. The Compliance Decision, the decision the subject of the appeal, addressed the appellant's contentions about the principles to be applied in the context of allegations of non-compliance with a summons as follows (from [54(2)(a)]):

"(2) ...

(a) I reject the submission that, where a document is not in a party's possession, custody or control that the failure to produce that document is non-compliance. A summons can only compel a person to produce documents that are in his or her 'possession, custody or control' and in such circumstances where documents are not in a party's possession, custody or control, there will be nothing to produce. This is uncontroversial.

...

(3) ...

(c) With respect to the Applicant's reliance on s 12(b) of Schedule 4 of the Government Information (Public Access) Act 2009 (NSW), that provision has no bearing on the law as it relates to disclosure obligations with the sections expressly limited to references to a document being held pursuant to that Act. However, even if that was incorrect, as stated in paragraph (a) above, there is no evidence to establish that the Respondent has an 'immediate right of access' to the SAP Manual even if held by 'GovConnect NSW' or that 'GovConnect NSW' is a 'private sector agency'."

1. The appellant's Notice of Appeal was accompanied by submissions in support (appellant's initial appeal submissions) in which they raised three grounds of appeal:

"Appeal ground 1 - Whether the Respondent is in control of the documents when the documents are with another government agency

Alternatively, Appeal ground 2 - Whether Clause 31 is to be adopted if the person named objects to production

Appeal ground 3 - whether the Respondent failed to comply with the Summons"

1. The respondent submits that the orders sought under the appellant's Notice of Appeal and accompanying submissions demonstrate an intention at the time of filing the appeal to readvance the same grounds as asserted during the Non-Compliance Hearing. The respondent also submits the appellant's Notice of Appeal and accompanying submissions are in support of the contention that the respondent had failed to comply with the summons. These grounds had been expressly rejected by the Tribunal.
2. It is then submitted that an appeal to the Appeal Panel does not provide a losing party in the Tribunal with an opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Brahmbhatt v Osorio [2023] NSWCATAP 188 at [27], [28].
3. The respondent recognised that the appellant is self-represented. However, it is said that the appellant has experience in the Tribunal and is familiar with the processes of both the Tribunal and its Appeal Panel. The appellant also has extensive experience in other court and tribunal proceedings. It follows that the appellant understood the limited prospects of the appeal at the time of filing.
4. Further, the respondent noted that the appellant filed further submissions (appellant's appeal submissions) in support of the appeal on 13 March 2025. A significant portion of the appellant's appeal submissions were irrelevant to the real issue in dispute, including making baseless allegations of misconduct, intimidation and evidence tampering by the Senior Member who determined the matter at first instance, and alleging contempt in the face of the Tribunal by a solicitor from the respondent.

Frivolous, vexatious, misconceived and lacking in substance - section 60(3)(e)

1. The respondent submits that the appeal proceedings were vexatious, misconceived and lacking in substance as the proceedings:

(1) lacked legal foundation for the reasons set out above;

(2) were initiated with the intention of delaying the advancement of their substantive matter. This is further supported by the fact that the appellant appears to have initiated the administrative review application with limited, if any, genuine belief in its substantive merit;

(3) were brought for the purposes of ventilating unsubstantiated claims that the solicitor for the respondent was "in contempt" of the Tribunal and urging the Appeal Panel to make a finding of misconduct against the Senior Member who determined the Non-Compliance proceedings.

1. The respondent then seeks to support this ground on the basis that there were two forms of collateral purpose; namely delaying the advancement of the substantive matter and urging the Appeal Panel to make a finding of misconduct and contravention of the Crimes Act 1900 (NSW) (Crimes Act).

Refusal or failure to comply with the duty imposed by section 36(3) - section 60(3)(f)

1. The respondent submitted, relying on s 36 of the NCAT Act, that the appellant has refused or failed to comply with the duty imposed by that section to cooperate with the Tribunal to give effect to the guiding principle of the NCAT Act. The respondent identifies the history of conduct said to support this ground.

1. The respondent argued that it is difficult to conceive that the appeal constituted a legitimate assertion of the appellant's rights to obtain the records sought under the summons issued to the respondent. The appeal was superfluous in that it was an appeal against a decision of the Tribunal that had no potential or practical effect upon the appellant. This is because it had already been determined that the respondent did not have custody and control of the summonsed records.
2. The respondent draws attention to the appellant demonstrating an awareness as early as the Non-Compliance Hearing on 17 December 2024 that the information sought under the summons was held by a third-party entity (the Department of Customer Service/GovConnect) and not the respondent. The appellant's submissions dated 16 December 2024 state:

"... 8: (the Appellant) seeks leave to amend the Summons 'order to person named below' to GovConnect NSW, to produce the SAP Manual."

1. The transcript of the Non-Compliance Hearing evidences that the appellant was aware that GovConnect is a "business unit of government within the Department of Customer Service" (DCS). It was also explained to the appellant that a new summons would need to be filed as DCS is a "new party". This was reflected in the Compliance Decision at [54].
2. On or around 4 February 2025, the appellant served a summons on DCS. The summons issued to DCS was in materially the same form as that issued to the respondent and sought "the 2017 version of the SAP User/Operational Manual/Handbook/Guideline of FACS". The respondent says this evidences that the appellant did not lodge the appeal with the intention of asserting a legitimate intent to obtain the SAP Manual in support of the substantive matter.
3. The respondent also highlighted that the appellant brought an application against DCS for non-compliance with a summons seeking the SAP Manual. On 20 March 2025, before the appeal was heard, the Tribunal held that DCS had complied with the summons and did not have possession, custody or control over the 2017 SAP Manual (DCS Compliance Decision).
4. In light of the above, the respondent contends the appellant was fully aware that the appeal would have had no practical effect on changing the outcome that the respondent did not hold the records and therefore did not have custody and control of the 2017 SAP Manual.
5. In that regard, the appeal was unnecessary and wasteful of the resources of the respondent and the Appeal Panel. It is said that the appellant's reliance on the appeal process appears to have served as a basis for not filing submissions in support of their underlying administrative review application. This has contributed to the delay in the finalisation of the underlying, substantive proceedings.

1. The appellant's submissions under the heading "Issue 5" relate to the provision under s 60(3) of the NCAT Act that the respondent may claim out of pocket expenses on special circumstances. As indicated below, where we have found the submissions warrant greater consideration, we have done as indicated.
2. The appellant argued the respondent's submissions in relation to special circumstances are misconceived, false, prejudgement, opinion or conclusions without evidential support. However, there is no substance to this broadly framed and generalised submission. Nevertheless, we have considered the question of special circumstances in detail below.
3. In respect of the submissions by the respondent that there is no tenable basis in fact or law for the appeal, the appellant argues that the submissions are misconceived, as an appeal is to review the Tribunal's decision that the "appellant disagrees with, and the Appellant is entitled to a new hearing at the appeal." That submission, however, does not address the issue to which it purports to respond; which is whether the appeal was a re-run of the first instance case and unarguable. In addition, there is no automatic right of appeal in respect of an interlocutory decision that an appellant disagrees with and no automatic entitlement to a new hearing: s 80(3) NCAT Act. The Appeal Panel determined in the Appeal Decision that the first instance decision, the subject of the appeal, was an interlocutory decision; notwithstanding the appellant's submissions to the contrary: Appeal Decision at [66]. This is not the occasion to challenge that finding; and the decision regarding costs must proceed on that footing.
4. The appellant submits that the submissions by the respondent, in relation to the question of whether the appeal was frivolous, vexatious, misconceived and lacking in substance, are misconceived. This submission by the appellant is based on opinion and conclusions without evidential or legal support, and is not elaborated upon. Nevertheless, this issue is considered below.
5. The appellant then deals with the reliance by the respondent on collateral purpose and takes issue with the analysis by the respondent. We take the appellant's view into consideration below.
6. In response to the respondent's reliance on s 36(3) of the NCAT Act, the appellant argues that the submissions are misconceived, as the parties have a duty to the Tribunal to comply with directions and orders. The appellant argues that communications between the Tribunal and the parties are irrelevant in respect of compliance. This issue is considered below.
7. In relation to the submissions by the respondent in reliance of s 60(3)(g) of the NCAT Act, the appellant submits that the submissions are false, namely that the submission that the respondent did not have access and control of the 2017 SAP Manual was false. No grounds are provided as to why this is so; although, to the extent they are premised on the same grounds as the appeal, we have already rejected these: Appeal Decision at [76].
8. We have also had regard to the submissions by the appellant on 28 July 2025 which, in our view, do not add materially to the earlier submissions, except for the submission in relation to s 50 of the NCAT Act which we have dealt with above.

Consideration in relation to special circumstances

1. The respondent's submissions in this regard fall into two categories: (1) delay; and (2) scandalous submissions. Insofar as delay is concerned, we are not persuaded by the respondent's arguments in respect of collateral purpose under s 60(3)(e) of the NCAT Act, and do not conclude they tend towards special circumstances, in this case. Further, the absence of raising this issue on the appeal also dictate against this submission. Leaving aside for this moment that we ultimately found all of the appellant's grounds unmeritorious, we are satisfied that the appellant did not bring the appeal to delay the underlying proceedings. The appellant's ultimate goal was to obtain the 2017 SAP manual, which viewed objectively, the appellant views as critical to the underlying administrative review proceedings.
2. With respect to the appellant's submission that the Tribunal, at first instance, was guilty of misconduct or contravention of the law or that the respondent was in contempt or made false submissions, or the like, this might suggest that an appeal has been brought for collateral purpose. Whilst viewed objectively, we accept the appellant's submissions as being brought to aid their ultimate goal of obtaining a copy of the 2017 SAP Manual, the assertions were groundless and might be described as scandalous. It is in that sense that they were collateral to the real issues in dispute. We consider this under a separate heading discussed below.

1. In respect of the reliance by the respondent on s 36 of the NCAT Act, such matters are more appropriately dealt with, if raised, in the substantive hearing and we do not attach any weight to those submissions.
2. We also note the appellant's contention that parties have a duty to the Tribunal under s 36 of the NCAT Act, therefore, inter partes communications are not relevant. The proposition that the parties have a duty to the Tribunal under s 36(3) of the NCAT Act is correct; but this extends beyond what happens at the hearings.
3. As already noted, we are not persuaded that the appellant did not lodge with the intention of asserting a legitimate intent to obtain the SAP Manual. For the same reasons, we also do not intend to give weight to the respondent's arguments that the appellant's reliance on the appeal process was to provide a basis for not filing submissions in support of the administrative review application.

1. In relation to s 60(3)(g) of the NCAT Act, we regard the following matters as material for our consideration.
2. First, the nature of the proceedings at first instance which involved a challenge to compliance with a summons to produce a limited number of documents. Proceedings of that nature are not intended to provide an avenue, or drawn-out process, for a full-scale trial and should be dealt with expeditiously and efficiently. A party who does not agree with the outcome does not have an automatic entitlement to pursue appellate proceedings. There are sound reasons for requiring the grant of leave for an interlocutory decision. The requirement for leave to appeal promotes expedition and avoids delays of the substantive proceedings and avoids unnecessary fragmenting of the appeal process: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424, 431 (Bowen CJ, Lockhart and Sheppard JJ).
3. There may be more scope to grant leave to appeal for a decision that, although interlocutory, has the practical effect of finally determining rights: Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221, 225, 226 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ). This case, concerning as it did the question of compliance with a summons, did not finally determine rights and the requirement for leave was an important aspect of the appeal.
4. Secondly, it is also clear that the appellant prosecuted the appeal as if entitled to a second chance without identification of error, either on a question of law or otherwise. The bar for leave to appeal an interlocutory decision requires identification of an important point of principle and more than a merely arguable case: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] (Gleeson JA, on behalf of the bench).
5. We note the appellant contends that the directions made at a call over after the filing of the Notice of Appeal, to the effect that the Appeal Panel would decide whether to allow the appeal to proceed on grounds other than a question of law, provided a basis for the appellant to consider that the appeal was as of right on a question of law. However, no question of law was identified at the call over by the Tribunal. It must also be borne in mind that the Notice of Appeal had already been filed, and that the Notice did not identify any question of law entitling the appellant to prosecute the appeal.
6. Although questions of law are at times difficult to identify or articulate, the appellant did not adequately identify errors which, upon evaluation by the Appeal Panel, could be regarded as raising a question of law; and no warrant for the grant of leave was identified.
7. Thirdly, whilst not known at the date of lodging the appeal, the appellant prosecuted the appeal to a hearing, held on 2 May 2025, in circumstances where one of the issues pursued, namely, an obligation to seek documents which were not in the respondent's possession, from DCS, was maintained when it was already apparent due to the DCS Compliance Decision of 20 March 2025, that DCS did not have such a document in its possession. This raised the question of whether, even if the appellant was right as a matter of law, there was any utility in pursuing the appeal.
8. These matters weigh in favour of our satisfaction as to the existence of special circumstances.

1. In respect of s 60(3)(c) of the NCAT Act, we are of the view that the appellant made claims that had no tenable basis in fact or law. The central point the appellant argued was that the respondent had an obligation to seek the document from another business unit, a claim which had been explained in the Compliance Decision as not available, yet, without any legal support, was again pursued on appeal.
2. Further, these claims were pursued beyond the scope and the express terms of the summons, which did not impose any such obligation on the respondent, without any basis for arguing that the summons could be, or should be, interpreted in such a way. In addition, the relative strength of the respondent's case far outweighed the strength of the appellant's case which displayed an absence of any merit.
3. These considerations under s 60(3)(c) of the NCAT Act weigh in favour of our satisfaction as to the existence of special circumstances.

1. In relation to s 60(3)(e) of the NCAT Act, we are of the view that the case was from the outset hopeless. It was at all stages misconceived and lacking in substance. However, it was also of little utility, as it appears to have been accepted that the respondent did not have physical possession of the SAP Manual. Further, the person identified as having the SAP Manual, who the appellant contended the respondent was required to seek the document from, DCS, had already been held to have complied with a summons seeking the SAP Manual, despite not producing it: DCS Compliance Decision. This is to say that, the main argument of the appellant was that the respondent should seek the document from the DCS; when the appellant was aware from the DCS Compliance Decision that the DCS did not have the document. This demonstrated that even if the appellant was correct and the respondent had an obligation to ask DCS for the document, it would have come to naught. This marks the appeal as frivolous, vexatious or misconceived.
2. The appellant made various allegations in the course of the appeal proceedings towards the respondent and the Senior Member who determined the matter at first instance. The appellant, in their written submissions dated 13 March 2025, stated that the respondent "wilfully failed" to comply with the Summons and was consequently "in contempt of the Tribunal." The appellant accused the respondent's solicitor of lodging a "false document per s307C of Crimes Act" and of making numerous "false submissions". The appellant, in the same written submissions, directed various accusations against the Senior Member. These accusations included improper conduct, false claims, evidence tampering, and purposeful deceit on the part of the Senior Member, as well as alleged threats made by the Senior Member to the appellant. Three of these accusations included allegations of contraventions of the Crimes Act. The appellant's written submissions included an annexure of the various sections of the Crimes Act said to have been contravened by the respondent and Senior Member. These allegations were unsubstantiated.
3. The following submissions alleging misconduct on the part of the Senior Member who heard the case below included:

"23. [The Senior Member] breached bias and evidence rule by falsely accusing the Appellant being 'non-compliance', knowing that 'non-compliance' accusation is without evidential support.

24. [The Senior Member] further breached evidence rule, by tempering with 40 paragraphs of evidence, constitutes an admission she has no evidence to support her decision, an offence per s317 of Crimes Act (Particular IV).

25. [The Senior Member] demanded the Appellant to produce evidence, knowing she has no power to request at direction hearing. They are unwarranted demand per s249L of Crimes Act (Particular V).

26. [The Senior Member] prepared the Decision in publication format, knowing it won't be published, but to deceive with false sense of accountability and confidence, an offence per 192E of Crimes Act (Particular VI)."

1. There was no substance to any of the allegations directed at the practitioner or the Senior Member. We have regard to this conduct: The Owners Strata Plan No 79633 v Graorovska (No 2) [2022] NSWCATAP 245 at [20]- [22].
2. We view these allegations as scandalous. They did not further the substantive submissions raised in the appeal.
3. We are satisfied that these allegations contributed to the manifest weakness of the appellant's appeal under s 60(3)(c) and to the lack of substance under s 60(3)(e) of the NCAT Act.
4. This factor weighs in favour of our satisfaction of the existence of special circumstances.

1. We recognise that the appellant is self-represented. However, the Tribunal at first instance went to some lengths to set out the facts and law which should have informed the appellant of the nature of a summons and the errors of the appellant's complaints. Nonetheless, the appellant sought to challenge that reasoning without any apparent identification of error.
2. We will, however, give weight to this factor against our satisfaction of the existence of special circumstances and we are not persuaded by the respondent's arguments that the appellant's familiarity with proceedings counts against them, in this regard. Despite involvement in several proceedings, the appellant is not a lawyer.

Conclusion in relation to special circumstances

1. Recognising that the starting position is that each party bears their own costs, the matters which favour special circumstances outweigh any factors in favour of there not being special circumstances, which we have identified above.
2. Accordingly, we are satisfied that in this case, special circumstances exist warranting an award of costs. Viewed cumulatively, the following factors were significant:

(1) Relative weakness of the appellant's case.

(2) The lack of identification of any basis for the assertions of error.

(3) The appeal was prosecuted as a re-run of the first instance proceedings.

(4) The subject matter was an interlocutory dispute concerning compliance with a summons that did not have the practical effect of determining rights.

(5) There was an identifiable lack of utility; even if the appeal ground could have been made out, as the person said to have possession of the documents had been found not to so have: DCS Compliance Decision.

(6) The myriad of unsupported and scandalous submissions made.

1. We are satisfied that this case is out of the ordinary. This is not overcome by the fact that the appellant is self-represented and not a lawyer, although allowance has been made for this.

1. As we are satisfied that there are special circumstances, we now turn our minds to whether an award of costs ought to be made. In respect of our overall discretion, having regard for the matters which we have set out above, we consider that an award for costs should be made in this case. Whilst we accept that the mere existence of special circumstances does not, of itself, justify the exercise of the discretion to award costs, in this case, we consider that there are special circumstances warranting an award of costs. These include, in particular, the raising of scandalous submissions, the lack of a tenable basis, the mere re-run of the case at first instance without identification of error, and the lack of utility. These considerations are weighty. This, coupled with the circumstances that the decision appealed was an interlocutory procedural decision that did not render a final determination, weigh in favour of the award of costs. In this regard, we take into consideration that the appellant is self-represented. Nevertheless, we do not see this factor as sufficient to mitigate against the gravity of the special circumstances we have identified.
2. The appellant has not raised any meaningful or reasoned arguments as to why we should not exercise our discretion in favour of the respondent.
3. Having regard to the fact that an award of costs is to compensate the winning party, we consider that the special circumstances in this case warrant an award of costs and there are no overbearing countervailing factors.

1. The respondent has asked the Appeal Panel to make a lump sum costs order.
2. There is wide acceptance in the Tribunal, that s 60 of the NCAT Act empowers the Tribunal to make such an order. Section 60(4) provides as follows:

(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.

1. Different appeal panels have interpreted s 60(4) of the NCAT Act as providing a source of power for the making of a lump sum order in one of two ways:

(1) That s 60(4)(a) of the NCAT Act gives the Tribunal a discretion to determine "to what extent costs are to be paid", which includes the making of a fixed sum costs order: 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 (203 Castlereagh Street) at [35]. We note that 203 Castlereagh Street has been followed in a number of subsequent appeal panel and first instance decisions: see, for example, Wilson v Dash (No.2) [2018] NSWCATAP 155 at [17]; The Owners - Strata Plan No 82306 v Anderson [2018] NSWCATCD 1; News v Cotes (No 2) [2019] NSWCATAP 235 at [10]; FHH v Port Stephens Council (No 2) [2023] NSWCATAP 282 at [43]; Sanna Construction Pty Limited v Kelly (No 2) [2025] NSWCATAP 203 at [17].

(2) That s 60(4)(b), which allows the Tribunal to order costs to be assessed "on the basis set out in the legal costs legislation ...or on any other basis" (our emphasis) enables it to make an order for lump sum costs: STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [49].

1. Other appeal panels have accepted, without advancing any reasoning about the construction of s 60(4), that it provides a source of power for the making of a lump sum costs order. That was the approach of the Appeal Panel in the oft-cited Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116 at [40], in which the Appeal Panel stated:

"...we agree that in the exercise of its broad discretion in relation to costs and in accordance with s 60(4), the Tribunal has the power to make a gross sum costs order..."

1. It has also been held that when s 60(4) is read in conjunction with the guiding principle in s 36 of the NCAT Act requiring the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings, there is ample statutory power to support the making of a lump sum costs order: Boughen v Kumar & Paentia (No 2) [2021] NSWCATAP 262 at [47(1)]; The Owners - Strata Plan No 82306 v Anderson [2018] NSWCATCD 1 at [22].
2. It is not necessary to resolve the question of the source of power, as we consider it beyond argument that the Tribunal has such power. We proceed on the basis that s 60(4)(a), at least, provides a source of power, and that the discretion to make an order for lump sum costs must be exercised judicially.
3. Relevant principles were identified in Idoport Pty Limited v National Australia Bank [2007] NSWSC 23 (Idoport) at [9], per Einstein J:

"For present purposes it seems convenient to commence with a recitation of the principles which inform the exercise of the discretion:

i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119 , Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as 'the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation' (All ER page 265)];

ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];

iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 , per Giles JA at para [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199];

iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22];

v. the gross sum 'can only be fixed broadly having regard to the information before the Court': Beach Petroleum at 124;

[In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum 'only if I apply a much broader brush than would be applied on taxation, but that ... is what the rule contemplates'.]

vi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120';

vii. In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, put the matter as follows, at paras [16]:

'On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary "fail safe" discount on the cost estimates submitted to the Court: Leary v Leary at 265. ...'"

1. In Bechara at [12]-[15], the Court of Appeal added that the following principles also apply:

"12 The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123.

13 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: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing).

14 A 'broad brush' approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7].

15 The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814]."

1. Recently, the broad brush approach was reaffirmed in Sweeten at [32] per Payne JA:

"A "broad brush" approach is appropriate when lump sum costs are ordered. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673; (1999) 93 FCR 1 at 5; [1999] FCA 673 per O'Loughlin J; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7] per JC Campbell AJA."

1. The principles set out in Idoport and Bechara have been applied by the Tribunal countless times. A recent example is the Appeal Panel's decision in Sanna Construction Pty Limited v Kelly (No 2) [2025] NSWCATAP 203, which sets out the accepted approach to the making of a lump sum order for costs in the Tribunal as follows:

"17 As to the making of a lump sum order for costs, in a number of cases the Appeal Panel has recognised a power to make such an order pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) and has proceeded to make such an order: see, for example, Allsopp v Owners Corporation SP 6006 [2024] NSWCATAP 93 and News v Cotes (No 2) [2019] NSWCATAP 235; cf 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd [2017] NSWCATAP 29. We note that in the two cases first mentioned the amount ordered was a relatively modest amount and involved a significant discount in respect of the solicitors' costs that were actually incurred.

18 In Michael Wilson & Partners v Emmott (No 2) [2024] NSWCA 309 (Emmott), the Court of Appeal applied the principles relevant to the making of a gross sum costs order as set out in Hamod v State of New South Wales [2011] NSWCA 375 and as stated in Gabrielle v Abood (No 4) [2023] NSWCA 100, where the Court (Bell CJ, Kirk and Adamson JJA) said at [6]:

The power to make a gross sum costs order provided by s 98(4)(c) of the Civil Procedure Act 2005 (NSW) is discretionary. Authority establishes that the discretion is not confined and may be exercised whenever the circumstances warrant its exercise; it should only be exercised when the Court considers that it can do so fairly between the parties, and that includes having sufficient confidence in arriving at an appropriate sum on the materials available; courts have typically applied a discount in assessing costs on a gross sum basis; and the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: see Hamod v New South Wales [2011] NSWCA 375 at [813]- [820] and authority there cited.

45. In the present case, as adverted to above, the evidence as to the costs incurred by the respondent is more than sufficient to enable an assessment of a gross sums costs order to be made. This is appropriate where the amount sought is relatively small and the costs of assessment are likely to be disproportionate to the amount that may reasonably be in issue on assessment. The Court on a gross sum costs application does not apply a process similar to a taxation of costs, but adopts a much broader brush. A discount is ordinarily warranted to reflect the contingencies ordinarily inherent in the assessment process. That said, one must be astute to avoid both overstating the recoverable costs and underestimating the appropriate amount by applying some arbitrary discount to the amounts claimed.

46. In all the circumstances it is appropriate in our opinion to fix the gross sum costs order by: (1) allowing 85% of the solicitor's costs, including in respect of the costs of the preparation of this gross sum costs application (being a conservative discount of 15% rather than the 35% that the applicant suggests); (2) allowing the whole of Counsel's fees and disbursements (which are not on their face excessive), including in respect of the costs of the preparation of this gross sum costs application; (3) applying a further discount of 10% to the sum of the solicitor's and Counsel's costs so calculated, to take into account contingencies inherent in the taxation process and the complaints made by the applicant as to the components included in the costs claimed; and (4) adding to that figure the filing fee for this application (in full).

20 In Emmott the Court had before it evidence from the respondent's solicitor as to the discounts applied in the assessment of costs."

1. We consider it appropriate to make a lump sum costs order as we accept this could avoid further delay and the potential expense of a costs assessment. We take account of the following factors:

(1) The appellant only addressed the question of whether the respondent is entitled to legal costs, at all; and made no challenge to the quantum if that argument was rejected, as it has now been. In any event, as discussed below, we are able to take that into consideration in determining the appropriate amount.

(2) We have sufficient material before us to exercise the discretionary power "fairly between the parties", as we have "sufficient confidence in arriving at an appropriate sum on the materials available": Gabrielle v Abood (No 4) [2023] NSWCA 100, the Court (Bell CJ, Kirk and Adamson JJA) at [6] applied by the Court of Appeal in Michael Wilson & Partners v Emmott (No 2) [2024] NSWCA 309 (Emmott).

(3) As noted by Payne JA in Sweeten, "no matter how strongly a litigant feels about their case, it is never appropriate to make completely unsupported allegations of fraud" at [15]. It was appropriate for the respondent to respond.

(4) The costs sought are in a sum of $6,886.23; which whilst not minimal are proportionate to the importance and complexity of the proceedings: s 36(4) NCAT Act. On the one hand, we found in the Appeal Decision that the appeal did not raise issues of principle or public importance, insofar as the central issue was concerned, regarding the duty of a recipient of a summons to make enquiries to a third party or take further steps to obtain custody or control of documents sought. On the other hand, the scandalous nature of some of the appellant's submissions required responses and the appeal could not be described as trivial.

(5) It is in the interests of justice to bring these proceedings to an end and not risk further appeals in relation to a cost assessment process. This avoids future "expense, delay and aggravation": Sweeten at [33].

1. In respect of the quantification of the lump sum order, we are satisfied as follows:

(1) It was reasonable for the respondent to use the services of junior and senior practitioners and the charge out rates guided by the Attorney-General's scale appear to us to be reasonable.

(2) The work carried out is, largely, identified.

(3) Whilst we note that the appellant objected to the Appeal Panel dispensing with a hearing on this matter and it is conceivable that the appellant might have at a hearing said more on the reasonableness of the quantum in relation to certain items in the cost schedule, this is naturally accommodated by the discount we propose to apply to the respondent's cost application, as detailed below.

(4) In respect of the work for which costs are sought, it is within the bounds of work and time taken that would reasonably be expected, including in circumstances where serious (albeit unfounded) allegations were made by the appellant against some of the practitioners.

1. As we understand the respondent's position from the schedule of costs it relied on, it has reduced the actual costs claimed which reflect, in a way, party and party costs as opposed to indemnity costs. We regard that approach as reasonable. In addition, as was the case in Emmott, we have before us detail as to the discounts applied in the assessment of costs.
2. Nevertheless, as highlighted in Sweeten, the adoption of a broad brush approach is appropriate, and it is unnecessary to accept the amount and all the details as provided by the respondent.
3. We will therefore apply a further discount of 35% to take account of:

(1) the costs sought for the overall conduct of the appellant in reliance on s 36 of the NCAT Act which we have not accepted;

(2) contingencies arising on a potential cost assessment of the claimed costs; and

(3) proportionality to the importance and complexity of the proceedings.

1. Accordingly, the amount of the lump sum costs order shall be 65% of $6,886.23, namely, $4,476.05.
2. In our view, the appellant should pay the costs of the respondent fixed in the sum of $4,476.05 within 28 days.

(1) In accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing in relation to the application for costs is dispensed with.

(3) The application pursuant to s 53 of the Civil and Administrative Tribunal Act 2013 (NSW) seeking an amendment to the respondent's submissions requiring the addition of the names of the solicitors and their signatures is dismissed.

(4) The appellant's application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed.

(5) The appellant is to pay the respondent's costs of the appeal including in respect of the appellant's stay application in the fixed amount of $4,476.05 within 28 days.

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.