Gartrell v Roth

Submissions

1. The respondents submit that the following matters are circumstances warranting an award of costs: 1. The appellants were entirely unsuccessful in the appeal. 2. The first ground of appeal, which invoked the jurisdiction of the Tribunal to hear matter appealed from, had been determined a long time ago, and could never have been successful. 3. There was nothing put forward by the appellants to establish that the Tribunal below, when exercising its discretion to extend time, committed any error or acted on any incorrect or wrong principle or any mistake of fact.
2. In short, the respondents submit that the appeal was manifestly hopeless, should never have been commenced and was doomed to fail.
3. The appellants submits that costs should not be awarded because: 1. The mere fact that a case has been found to lack merit cannot be the basis for a special costs order. 2. The mere prolongation of a matter will not without more ordinarily justify an award of special costs. 3. An issue in the appeal was the nature of the limits on the Tribunal's jurisdiction imposed by s 21(3) of the Agricultural Tenancies Act 1990. In the absence of any authority directly considering that section the appellants assessed their prospects prospectively. 4. In its reasons the Appeal Panel made no finding that the appeal was hopelessly untenable, or unreasonably maintained.

Principles

1. In Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 the Appeal Panel stated at [43]: Section 60 has been considered in many recent decisions: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48; and Rose Nettis Pty Ltd v Three Tall Trees Pty Ltd [2015] NSWCATAP 51. As the Appeal Panel noted in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]: The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]- [31]. From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, 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. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.
2. Each case depends upon on its own particular facts: Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164, and will depend on the circumstances of the individual case: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152.

Consideration

1. It is appropriate to set out some of the history of this appeal. As we stated in the principal reasons: 8. . . . The proceedings had a somewhat unusual commencement, in that, of the three respondents in the proceedings below, in the notice of appeal in proceedings AP 15/01097 filed 9 January 2014, only Mr Gartrell was named as an appellant. 9. Subsequently, on 9 April 2015, Mr Bannister filed an appeal (AP 15/26624). He was the only appellant named in that notice of appeal. 10. Both these proceedings were first listed for hearing before the Appeal Panel on 17 April 2015. On that occasion Mr Smith sought, and was granted, leave to appear to represent Mr Gartrell as his agent. 11. The Appeal Panel explained to Mr Gartrell and Mr Bannister that an appeal could not proceed without the involvement of all parties in the proceedings below. Logic dictates that one may be left with inconsistent decisions where the Tribunal has made an order in respect of the parties, and the Appeal Panel is being asked to reach a different conclusion in respect of only some of those parties. The respondents described this situation, in their submissions, as a "patent absurdity". 12. The proceedings were adjourned, the Appeal Panel directing that Pipeclay be joined as a party to proceedings. We note that, in any event, reg 29 of the Civil and Administrative Tribunal Rules (the Rules) provides that the parties to an internal appeal are the appellant, and any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance. We further note, that at this hearing Mr Bannister withdrew his separate appeal (AP 15/26624), on the basis that he would be joined as a party to this appeal. 13. The appeal was adjourned to 13 May 2015. Again, on that occasion, the matter could not proceed, principally because Pipeclay was not represented. Mr Smith advised the Tribunal that he did not have any instructions to act on behalf of Pipeclay. In addition, Mr Gartrell, who had not intended to appear, attempted to participate by his mobile telephone, and the reception was extremely poor and Mr Gartrell was unable to participate in any meaningful way. 14. At the hearing of the appeal on 23 June 2015 Mr Adams of counsel sought leave to represent Pipeclay. Mr Washington opposed that application. The Appeal Panel granted leave for Mr Adams to appear at the hearing, and indicated at the time that we would provide our reasons in writing. 15. Our reasons are as follows. Mr Washington submitted that Pipeclay's application had not been made in accordance with previous directions. That is correct. However, the history of this matter shows that the matter had been adjourned because of the failure of Pipeclay to be a party to the proceedings. Pipeclay was a necessary party and, by operation of reg 29 of the Rules, had been a party since the commencement of the appeal. Pipeclay, however, was unaware of this. Clearly, Pipeclay, a company, had to be represented by some representative, and, in circumstances where the proceedings had been adjourned twice to ensure that Pipeclay appeared, it was appropriate that Mr Adams should represent it. In all the circumstances, we considered that leave should be granted to Mr Adams to represent Pipeclay. However, we indicted at the time that his role was limited to representing Pipeclay, and not, in effect, representing the other personal appellants.

Consideration

1. We note that the appeal was listed for hearing on three occasions, namely 27 April 2015, 13 May 2015 and 23 June 2015, the day on which the hearing proceeded to completion. On each occasion costs were sought by Mr Washington. On the first two occasions costs were reserved, pending the outcome of the appeal. We shall consider the question of costs for each day of hearing in turn.

Costs of the hearing of 17 April 2015

1. We consider that Mr Gartrell and Mr Bannister should pay the respondents' costs in relation to the hearing of the Appeal Panel conducted on 17 April 2015. The appeals of both Mr Gartrell and Mr Bannister where misconceived, in that they each were the only parties to the appeal, and the hearings had to be adjourned to enable all parties to be present and, if necessary, be represented. We consider and find that there are special circumstances warranting an award of costs for those hearings, namely that the first and second appellants conducted the proceedings in a way that unnecessarily disadvantaged the respondents (s 60(3)(a)), and prolonged unreasonably the time taken to complete the proceedings (s 60(3)(b)).

Costs of the hearing of 13 May 2015

1. We consider that the third appellant, Pipeclay Creek Holdings Pty Ltd (Pipeclay), should pay the respondents' costs in relation to the hearing of the Appeal Panel conducted on 13 May 2015. As noted above, despite the cause of the adjournment of the 17 April 2015 proceedings being the non-involvement of Pipeclay, the principal reason that the matter could not proceed on the next occasion was that, Pipeclay, a company, was not represented. Mr Smith advised the Appeal Panel that he did not have instructions to represent Pipeclay. The first appellant and the second appellant, who the Appeal Panel understand to be the only directors of Pipeclay, advised that they were not participating in the proceedings as representatives of Pipeclay. We consider and find that there are special circumstances warranting an award of costs for this hearing, namely that the third appellant conducted the proceedings in a way that unnecessarily disadvantaged the respondents (s 60(3)(a)), and prolonged unreasonably the time taken to complete the proceedings (s 60(3)(b)).

Costs of the hearing of 23 June 2015

1. We shall consider first the costs of the substantive hearing on 23 June 2015, which proceeded with full argument and representation. As we have noted, the principal matter on which the respondents rely is that the appeal was hopeless and could never have succeeded. While the respondents have not, in terms, identified which of the paragraphs of s 60(3) it relies upon, it appears to the Appeal Panel that such an argument falls within both s 60(3)(c) and (e).
2. The first appellant, Mr Gartrell, was represented by Mr Smith. Mr Smith is not an Australian legal practitioner. As we understand the position, he is currently studying law and has other graduate and post-graduate qualifications. We do not mention this to be critical in any way. On the contrary, what we are considering is whether or not there should be any different treatment of costs depending on whether or not a party is legally represented. In this respect we note that the Appeal Panel has previously commented upon the difference of approach that may be necessary where a litigant in person, rather than a lawyer, appears before it and makes submissions which otherwise perhaps would not have been made: see Pillay v Ku-ring-Gai Council [2015] NSWCATAP 83 at [36] - [41].
3. We tend to the view that we should not, at least not to the disadvantage of a party. That is to say, as discussed in Pillay, there may be costs implications if a party, on advice of his legal representative, positively makes an unwarranted assertion of fraud; but the situation may be different if the unrepresented person, makes the same assertion without the benefit of legal advice or a full understanding of the implications of what they are doing.
4. The substantive argument of the respondents is that the appeal "could never have been successful under any circumstance". We consider that that submission somewhat overstates matters. The issue of jurisdiction requires a careful consideration of the precise words of the enabling legislation, and a weighing of the whether or not decisions considering other similar but not identical legislation should be applied.
5. We consider that, in relation to the costs of the 23 June 2015 hearing, there should be no order as to costs.

Other - late submissions

1. At the conclusion of the reasons for decision (1 September 2015) the Appeal Panel directed that any party wishing to file submissions on costs should do so within 14 days, with any response to be made within a further 14 days.
2. In correspondence to the Appeal Panel dated 16 September 2015, the representative for the respondents requested that the timeframes for the filing of submissions on costs be extended due to the death of the respondents' counsel, Mr Washington, on 15 September 2015. The Appeal Panel, with the consent of all parties to the proceedings, issued amended directions that the respondents file and serve submissions in relation to costs on or before 9 October 2015, and that the appellants file and serve any opposing submissions on or before 23 October 2015.
3. The respondents filed their submissions seeking an award of costs on 12 October 2015. The appellants responded on 22 October 2015. While the respondent's submissions were slightly out of time, considering the unfortunate death of the respondents' counsel Mr Washington, the fact that the submissions were filed three days out of time, and that there was no objection by the appellants to the Appeal Panel receiving those submissions, we have had regard to those submissions in making this decision on costs.
4. Further submissions were received from Mr Gartrell (on behalf of himself and Pipeclay) on 29 November 2015, and again on 23 December 2015. These submissions relate to other proceedings currently before the Consumer and Commercial Division of the Tribunal, namely proceedings 14/21687, and thus are not relevant this decision, which is concerned with the costs of the appeal 15/01097.

Orders

1. The Appeal Panel makes the following orders. 1. The first and second appellants are to pay the respondents' costs of and incidental to the appeal hearings of 17 April. 2. The third appellant is to pay the respondents' costs of and incidental to the appeal hearings of 13 May 2015. 3. There should be no order as to the costs of the appeal hearing of 23 June 2015.

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: 03 February 2016