Hallmann v Southern Cross University [2026] NSWCATAP 13 | Case summary

FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278

Hallmann v Southern Cross University [2026] NSWCATAP 13 | Case summary | Zoe

[85]

"[31] 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.

[32] Six leading principles are apposite.

[33] 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].

[34] 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].

[35] 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.

[36] 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].

[37] 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].

[38] 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].

[39] 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.

[40] 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.

[41] 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."

"[52] 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)]."

[111]

"[30] In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (Harrison v Schipp) at [21] Giles JA described the power to make a gross sum costs order instead of ordering assessed costs, conferred at that time by Pt 52A r 6(2)(c) of the Supreme Court Rules 1970 (NSW), as being unconfined and apt to be exercised whenever the circumstances warrant its exercise. The same approach applies to s 98(4) of the Civil Procedure Act: Hamod v State of New South Wales [2011] NSWCA 375 (Hamod) at [813].

[31] One of the circumstances that has been recognised as potentially warranting the making of a gross sum costs order is where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability to pay the order likely to result from the assessment: Harrison v Schipp at [21]. That was the situation in Harrison v Schipp, where at [30] Giles JA found that Mrs Schipp "should not have to spend a lot more money which she will not recover" in order to obtain the costs payable to her.

[32] Even where the element of impecuniosity is not present, the length and/or complexity of the underlying proceedings and the associated likelihood of a lengthy and complex assessment are material considerations that can favour a gross sum costs order. A contested costs assessment in a matter with these characteristics is likely to involve expense, delay and aggravation of the kind that it is desirable to avoid by making a gross sum costs order: Hamod at [817]. Where there is a lack of proportionality between the complexity and cost of the assessment process and the amount at stake, that is also a factor favouring the making of a gross sum order: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 (Zepinic v Chateau Constructions) at [28], [31]. A related circumstance warranting such an order is where the total costs of litigation will become even more disproportionate if the costs are referred for assessment: Bechara (t/as Bechara and Company) v Bates [2016] NSWCA 294 (Bechara v Bates) at [18].

[33] In Hamod at [816] the Court held that in determining whether the sum sought is appropriate and meets these standards, factors that merit particular consideration include the relative responsibility of the parties for the costs incurred, the degree of any disproportion between the issue litigated and the costs claimed, the complexity of proceedings in relation to their costs and the capacity of the unsuccessful party to satisfy any costs liability.

[34] A court entertaining an application for a gross sum costs order is not required to undertake a detailed examination of the kind that would be appropriate to a taxation or formal costs assessment: Hamod at [819], [823]. To require something akin to a formal costs assessment would defeat the purpose of the gross sum costs order: Bechara v Bates at [14].

[35] A corollary of that principle is that a broad brush approach is necessarily required: Bechara v Bates at [14]; Zepinic v Chateau Constructions at [31]. In Harrison v Schipp at [22] Giles JA referred with approval to the proposition that a gross sum "can only be fixed broadly having regard to the information before the Court" (quoting Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 (Beach Petroleum) at 124) and that the rule contemplates a court adopting a "much broader brush than would be applied on taxation": Hadid v Lenfest Communications Inc [2000] FCA 628 at [35].

[36] At the same time, as Giles JA emphasised in the same passage in Harrison v Schipp at [22], the approach taken to estimating costs must be "logical, fair and reasonable" and the power should be exercised "only when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available": citing Beach Petroleum at 123 and Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The need for the Court to have confidence in arriving at an appropriate sum was emphasised in Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54 at [6], where the deficiencies in the material in that regard were decisive.

[37] In Baychek v Baychek [2010] NSWSC 987 at [11] Ball J referred to the principle that the Court is entitled to take a broad brush approach provided that the approach is logical, fair and reasonable, and observed that it is implicit in this that the gross sum "bear a reasonable relationship to the actual costs of the party making the application, and to the costs that that party might reasonably be expected to recover on assessment. That means, among other things, that there must be a reasonable evidentiary basis for the order the court makes". To similar effect, in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11, Barrett J at [21] held that a decision as to what is a sufficiently reliable calculation or estimate of an appropriate costs sum "will depend to a large extent on reaching some kind of view of what the outcome on assessment might be".

[38] As a matter of practice, courts typically apply a discount in assessing costs on a gross sum basis: Hamod at [814]. Indeed, in Zepinic v Chateau Constructions at [38] the Court described this as the invariable practice of the courts when calculating a gross sum costs order. That may involve "an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment": Hamod at [820]. Such an approach tends to minimise the risk of a gross sum costs order creating unfairness by allowing for the recovery of costs in excess of the amount that would in fact have been recovered if the matter had proceeded to costs assessment."

[115]

"[32] Leave to appeal should only be granted when there are substantial reasons to warrant leave being granted. These reasons include the presence of an error of principle in the decision under appeal, resulting in substantial injustice. For leave to be granted, the decision under appeal must generally be attended with sufficient doubt to warrant its consideration on appeal (see e.g. Champion Homes Pty Ltd v Guirgus [2018] NSWCATAP 54 (Champion Homes) at [35]; FFO v Cumberland Council [2022] NSWCATAP 164 (FFO) at [9]; Bettington at [22]).

[33] As recently noted by an Appeal Panel in Commissioner for Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34, leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review and such appeals are not to be brought as a matter of routine. While it is unnecessary and unwise to lay down rigid and exhaustive criteria, there is a general requirement that there be an error of principle and a risk of substantial injustice if leave was not granted, although these are not necessarily cumulative: [23]-[29].

[34] NCAT Appeal Panels have stated, in a number of decisions, that where an application for leave to appeal relates to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions: see e.g. Collins v Urban [2014] NSWCATAP 17 (Collins) at [84(3)] citing BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21]; Champion Homes at [35].

[35] The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins. It is only if the decision is affected by sufficient doubt, to warrant its reconsideration on appeal, that leave will be granted. Usually, it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, and beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. As explained in Collins at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact."

[127]

(1) as to the factor in s 60(3)(a) of the NCAT Act, it was unnecessarily disadvantaged in circumstances where Mr Hallmann did not pay the filing fee for the appeal until 29 August 2025 because:

(a) it had limited time to review and respond to the notice of appeal and the stay application prior to the call over and the hearing on 5 September 2025;

(b) it was put to the cost and expense of responding to an incompetent notice of appeal at the same time in which it was preparing for a three-day hearing in the related proceedings which were commencing on Monday the following week;

(c) despite the incompetence of the notice of appeal, Mr Hallmann relied on an excessive volume of material in support of his appeal and the stay application, having filed in excess of 1200 pages of material including the material he filed in support of the stay application; and

(d) Mr Hallmann disconnected from the hearing without any explanation in circumstances where the University's representatives had prepared for the hearing and were in attendance ([20]-[21]);

(2) as to the factors in s 60(3)(c) and (e) of the NCAT Act:

(a) Mr Hallmann failed to provide any grounds of appeal such that the notice of appeal was incompetent, and continued to prosecute the stay application in those circumstances. An inference can be drawn that it was only lodged in an attempt to derail the hearing set down for the following week ([22]);

(b) it had put Mr Hallmann on notice that he had not articulated any grounds of appeal prior to the hearing on 5 September 2025. Despite being on notice of this, Mr Hallmann failed to produce the grounds of appeal either before or at the hearing, but instead continued to assert that he had prepared them and they were annexed to his notice of appeal. Mr Hallmann did not provide an explanation for this, and it is not clear why he simply could not have sent his grounds of appeal to the Appeal Panel if he had in fact prepared them. There is a further available inference that Mr Hallmann had not prepared any grounds of appeal at the time he filed the notice of appeal and the stay application ([23]-[24]);

(c) in the absence of any articulated grounds of appeal, the notice of appeal and the stay application had no tenable basis in fact or law and were otherwise lacking in substance. In this regard, neither the stay application nor the substantive appeal was reasonably arguable. Principal Member Blake found that the stay application had to be dismissed in circumstances where there were no grounds of appeal ([25]);

(d) instead of articulating any grounds of appeal, Mr Hallmann relied on the same material as he did in relation to the amendment application and filed submissions and evidence in support of the stay which were unnecessarily voluminous. The material which was filed with the notice of appeal was limited to material filed in relation the amendment decision, and it can be inferred that Mr Hallmann was simply attempting to run his case again before an Appeal Panel ([26]-[27]);

(3) as to the factor in s 60(3)(g) of the NCAT Act:

(a) while the authorities also establish that there is a 'tolerance for self-represented litigants who do not understand legal concepts' that does not apply here as Mr Hallmann is a legal practitioner who holds a principal level practicing certificate in Queensland ([28]);

(b) Mr Hallmann provided no explanation for disconnecting from the hearing and has not applied to reinstate the appeal under s 55(2) of the NCAT Act ([29]).

[131]

(a) Unnecessarily Disadvantaged - The Appellant submits that the Respondent chose to brief counsel on a matter that was easily able to be handled by the Respondent's own internal legal team (noting that it is a University with ample internal resources). The Respondent failed to comply with its model litigant obligation and advise the Appellant that they had not received the Ground of Appeal and they failed to advise the Tribunal that the Appellant had a Disability Accommodation in place that allowed him to withdraw. Should these proceedings fail, then its breach of its model litigant obligations will have caused that failure, hence they have not been unnecessarily disadvantaged and if they were, it was of their own making;

(b) Prolonging Unreasonably - The Appellant submits that he has not unnecessarily prolonged proceedings by having a disability related event occur that required him to not attend on the day. Furthermore, if the Respondent failed to received the Grounds of Appeal, then it could easily have acquired them before entering into submissions, by contacting the Appellant and obtaining them. It did not - instead opting to attempted to use a technicality to avoid the proceedings, a model litigant breach;

(c) Relative Strengths of the Claims Made - The Appellant submits that the Grounds of Appeal demonstrate questions of law and fact that are appealable questions that hold real prospects of success should they be heard on appeal;

(d) Nature and Complexity of the Proceedings - The Appellant submits that there is nothing in the nature or complexity of these appeal proceedings that warrant a costs order;

(e) Frivolous/Vexatious/Misconceived/Lacking in

Substance - The Appellant submits that there is nothing in the appeal that is frivolous or vexatious, misconceived or lacking in substance. The appeal raises genuine questions that should be considered by the Tribunal;

(f) Refusal/Failed to Comply with the Duty -The Appellant has not failed to comply with his duty. The Appellant was under a disability accommodation that the Tribunal had appeared to have approved (having expressed no dissatisfaction or inability to comply) and was entitled to withdraw by way of disability accommodation;

(g) Any Other Matters - The Appellant submits that there are no other matters that are of relevance to the awarding of costs that should be heard;

Hallmann v Southern Cross University

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