Isfahani v RACGP Regional Director of Training

1. As stated, NCAT's jurisdiction must be found in, and is limited by, statute. If a statutory source of jurisdiction cannot be identified for the appeal, NCAT can have no jurisdiction to entertain it.
2. The applicant has failed to establish, and the Tribunal is not able to discern, that NCAT has jurisdiction to deal with his appeal.
3. The external appeal lodged on 9 October 2025 is dismissed.
4. The respondent has highlighted that the RACGP's internal appeal process is still available to the applicant, which he is pursuing. That is not a matter for the Tribunal.

1. Notwithstanding that the Tribunal does not have jurisdiction to deal with the appeal on its merits, it nevertheless may order costs of the appeal. In Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 at [29], the Court said:

"However, where there has not been a (purported) determination of any of the merits of the proceeding, and the only substantive determination by NCAT is that it lacks jurisdiction, then in accordance with the submissions advanced by the Solicitor-General, I see no reason to circumscribe the power in s 60 to the costs of and incidental to that determination."

1. The reference to s 60 was to s 60 of the NCAT Act. In that case, the underlying proceedings involved a consumer claim.
2. The first question to determine is what is the basis for the Tribunal to decide a costs application in the present circumstances. The Tribunal has applied the National Law's costs provisions in circumstances where the application was said to be without jurisdiction: e.g., Kirby v Dental Council of New South Wales [2025] NSWCATOD 116 at [90]; Mahony v Dental Council of NSW (No 2) [2019] NSWCATOD 133. However, in Schwartz v Medical Board of Australia (No 2) [2021] NSWCATOD 205 (Schwartz), the Tribunal held that the provisions of the National Law were not engaged by the misconceived application and that s 60 of the NCAT Act applied.
3. Here, the respondent seeks his costs of the proceedings, pursuant to s 60 of the NCAT Act.
4. As the applicant relied on more than merely on s 175 of the National Law and I have concluded that this is not an appeal under the National Law, I consider that the general costs provisions under the NCAT Act apply.
5. Section 60 of the NCAT Act provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be 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. As identified in FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278 (FZK) at [40]-[41], this requires a two-step approach. Before exercising the discretion to award costs, the Tribunal must be satisfied that there are special circumstances warranting an order for costs. This enlivens the discretion. Only if so satisfied is there a discretion to exercise.
2. A two-step approach was recently taken in Houda v Seraphim (Costs) [2025] NSWCATAP 188; where it is evident that the Appeal Panel identified a "special circumstance" but in the overall exercise of the discretion declined to award costs: at [10], [24] and [43].
3. The respondent submits that special circumstances exist in this matter, relying on s 60(3)(e) and s 60(3)(g) of the NCAT Act.
4. The respondent submits that proceedings beyond the Tribunal's jurisdiction meet the description of "misconceived or otherwise lacking in substance" in s 60(3)(e), citing Schwartz at [13]-[19].
5. The respondent also submits that, for the purposes of s 60(3)(g), it is relevant that Dr Isfahani was put on notice that his appeal lacked jurisdiction and was invited to withdraw it to avoid the further incurring of costs by the respondent. The respondent submits that Dr Isfahani failed to withdraw the appeal, putting the respondent to the further cost of a summary dismissal application.
6. Dr Isfahani opposes the application for costs and submits his appeal "raises genuine questions of law, fact, and procedural fairness".
7. The Tribunal has held that a lack of jurisdiction can amount to special circumstances for the purposes of s 60(2) of the NCAT Act.
8. In Schwartz, Cole DCJ found that the subject application had no identifiable source of jurisdiction and ordered costs against the applicant. Her Honour said (at [18]):

"I am satisfied that special circumstances within the meaning of s 60(2) exist in this matter, in that the proceedings instituted by Dr Schwartz were misconceived, as they were an attempt to seek a merits review of an administrative decision in relation to which no right of review or appeal was provided for by the National Law or any other legislation."

1. Judge Cole took the same approach in Council of the Law Society of New South Wales v EBA [2019] NSWCATOD 145 at [8], accepting that "the initiation of proceedings which were subsequently dismissed for want of jurisdiction is capable of constituting 'special circumstances'". In Council of the Law Society of New South Wales v Levitt [2017] NSWCATOD 126 and Council of The Law Society of New South Wales v Judah [2019] NSWCATOD 135, the Tribunal also considered that a lack of jurisdiction was a special circumstance.
2. However, in other cases, the Tribunal has discounted a lack of jurisdiction as a relevant factor when determining whether special circumstances exist. For example, in Doula Spirit Pty Ltd v Argyrou [2014] NSWCATCD 227 at [28], the Tribunal concluded that the "fact that a matter is dismissed for want of jurisdiction does not ... mean that it is per se misconceived or that it lacks substance". The Tribunal's lack of jurisdiction was also not taken into account as a special circumstance in Trust Company Ltd v Diamond Certification Laboratory of Australia Pty Ltd [2016] NSWCATAP 63.
3. It is also relevant to consider whether the fact that an applicant is self-represented militates against a finding of special circumstances.
4. In FHH v Port Stephens Council (No 2) [2023] NSWCATAP 282 (FHH) at [32]-[33], an Appeal Panel said:

"The fact that the Appellants are unrepresented does not render them immune from being found to have pursued frivolous and vexatious or otherwise misconceived proceedings or proceedings that lack substance or that have no tenable basis in fact of law.

Further, an unrepresented litigant, depending on the circumstances, who does conduct proceedings with no tenable basis which are misconceived, or which are frivolous or vexatious and lack substance, may give rise to special circumstances warranting an award of costs."

1. In FHH, the Appeal Panel placed weight on its finding that the appellants' submissions on appeal centred upon unsubstantiated and irrelevant allegations. Though they were unrepresented, the Appeal Panel also considered that the appellants "ought to have been aware that such attacks had no apparent relevance to the contention that was being put forward on appeal". The Appeal Panel ordered the appellants to pay the respondent's costs in a fixed amount.
2. On the other hand, in DYH v Public Guardian (No 3) [2022] NSWCATAP 34 (DYH), an Appeal Panel said (at [19]):

"In this context, we consider that the power to award costs is to be exercised with some tolerance for self-represented litigants who do not understand legal concepts. That includes a lack of understanding of the rules governing the admission of fresh evidence and the question of what constitutes error for the purposes of an appeal. That approach is consistent with the principle that the discretion to award costs is to be exercised judicially 'having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs' (Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 at [8])."

1. In DYH, the Appeal Panel dismissed the respondent's application for costs, finding that the appellant's case was arguable and could not be said to have lacked a tenable basis in fact or law.

1. The matters that tend in favour of there being special circumstances that warrant an award of costs are as follows:

(1) The appeal was filed without any identifiable source of jurisdiction.

(2) The appeal was initially framed under s 175 of the National Law and the respondent had pointed out to the applicant that such an application lacked jurisdiction, offered that if the applicant withdrew the appeal the respondent would not seek their costs, and redirected the applicant to the RACGP's internal review processes.

(3) The additional grounds relied on by the applicant have not provided a source of jurisdiction to the Tribunal.

(4) Whilst these proceedings are at a very early stage and before significant costs have mounted, the respondent was vexed with having to respond to these proceedings including by attending to correspondence, attending directions hearings, filing a summary dismissal application and preparing written submissions.

1. I am satisfied that, taken together, these constitute special circumstances warranting an order for costs (the special circumstances). These special circumstances enliven the discretion to award costs.
2. Countervailing considerations are the following:

(1) The proceedings are at a very early stage and the costs have been contained to the summary dismissal application.

(2) As to the position that the applicant is self-represented:

(a) Whilst, as identified in FHH (referred to above) and as adverted to in FZK at [51], the fact that a litigant is self-represented is not necessarily cause to avoid a costs consequence, it is a circumstance that may be taken into account, or for which an allowance may be made in appropriate cases.

(b) Here, it is the Tribunal's first duty to ensure it has jurisdiction and that question raised complex legal issues, which a self-represented applicant without legal training is at a disadvantage with.

(c) Accordingly, some allowance may be made in this case, as discussed in DYH (as referred to above).

1. I pause to note that no materials were filed in relation to the quantum of costs and a fixed sum was not sought, which is often the process when costs are minimal, and the parties wish to avoid further costs and trouble that might arise if the quantum of costs are disputed. Whilst I do not assume that the costs are disproportionate or that there would be further disputes arising from the quantum, it is not possible to determine whether the costs are proportionate and therefore I cannot take that into account.
2. Weighing the countervailing considerations against the special circumstances, I decline to exercise my discretion to award costs. Whilst it is significant that the appeal was filed without any identifiable source of jurisdiction and this was pointed out to the appellant by the respondent, questions of jurisdiction can be complex, especially for a self-reparented litigant, and the proceedings were halted at the earliest opportunity, curbing costs.

(1) The appeal is dismissed for want of jurisdiction.

(2) The respondent's application for costs is refused.

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.