Joseph v Kiama Municipal Council

Costs application

1. The application for costs of the strike out proceedings was made on the basis that there are special circumstances warranting an award of costs. Being a matter in the Administrative and Equal Opportunity Division of the Tribunal, this application is governed by the provisions of s 60 of the NCAT Act which provide for costs only in special circumstances.
2. Section 60 relevantly provides the following matters relating to an award of costs: 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.

Submissions

1. Mr Joseph identified that as a legal practitioner representing himself he was only entitled to an order for disbursements (not legal professional costs) consistent with the finding of the High Court in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 which overturned the exception to the rule established in Chorley that a self-represented party who is a Solicitor can be awarded costs.
2. The rule in Chorley was known as the Chorley exception, having become a general practice rule arising from the case in the Court of Appeal of England and Wales London Scottish Benefits Society v Chorley. It allowed for a solicitor who acted for themselves to recover professional costs for the work done in their own case. In Bell at [18] - [19] the High Court observed that there was no basis for such a rule to be considered part of the common law of Australia.
3. At the outset of the costs hearing the Tribunal clarified with Mr Joseph that the amount now sought under the costs application totalled approximately $1,000.00 being his receipts annexed to his costs application. Mr Joseph confirmed that this was the case and consistent with s 37 of the NCAT Act the Tribunal directed the parties to a brief without prejudice private conference for 10 minutes to see if they could come to some arrangement before proceeding further with the costs hearing. This proved unsuccessful (despite the low quantum in the context of the overall resources expended on the interlocutory and costs applications), and as a result the hearing proceeded.

Mr Joseph's submissions

1. Mr Joseph submitted at hearing that Council 'buried their head in the ground' and did not consider the arguments and merits put in his applications for Government Information. Reference was made to the case of Barsoum v Chief Commissioner State Revenue [2021] NSWCATAD 91 at [36] where the Tribunal observed that the guiding principle of the Tribunal applies to enable the Tribunal to appropriately discharge its functions. Mr Joseph submitted that on the one hand Council cannot submit that there is no merit in his applications and then on the other hand identify and provide further information (by way of documents) responsive to the substantive application.
2. Reference was made to an exhibit tended in the costs application by Mr Joseph (Marked 'AC-2') comprising a letter from Council's Lawyers dated 1 November 2022 and a schedule of additional documents identified as responsive to the GIPA applications and comprising 35 documents released wholly or in part in respect of 34 of them. Mr Joseph submitted that this action was in stark contrast to Council's actions and submission in lodging a strike out application on the same day claiming a lack of merit and misconceived proceedings only for the matter to bear further fruit that day.
3. Mr Joseph submitted that the Council's evidence in support of the strike out application (a Statement of Ms Critcher - the principal decision maker in the applications) was not on point to the strike out application. If anything the tranche of further documents released was in contrast to such an application. In addition Ms Critcher's statement did not expose any reasoning or actually address and otherwise speak to the strike out application.
4. Mr Joseph submitted that the strike out itself was misconceived as all three of the Information Commissioner's reviews had found issues with Council's determination of the matters in the first instance. At the time of filing of the three applications to the Tribunal there was nothing subsequently standing in contrast to the Information Commissioner's determinations as no redetermination had been commenced or completed by Council.
5. In written submissions Mr Joseph referred to section 60 (3) (a) and (b) in support of his application for costs. Mr Joseph submitted that Council refused to engage in Tribunal facilitated mediation, and failed to respond to his request on 30 October 2022 for the Council to provide particulars.
6. Mr Joseph submitted that the Council instituted proceedings without supporting evidence and a delay in filing the application caused the vacation of allocated hearing dates and further costs arising.
7. Further submissions were made that the Council breached the Model Litigant Policy to which they must adhere, as well as a lack of notice in respect of the strike out applications. Mr Joseph relied on sections 60 (3) (a) (b) (c) (e) and (f) of the NCAT Act as being enlivened by the Council's conduct in respect of the strike out applications.

Council's submissions

1. In submissions at hearing Council referred to aspects of the strike out application and submitted that Mr Joseph in GIPA Act applications No 2 and 3 sought to have access to information withheld as a result of the decision by Council in GIPA Application No 1.
2. Council also submitted that the development application issues to the extent that they related to trees, which Mr Joseph objected to, are actually raised in his own affidavit.
3. It was submitted at hearing that the costs application itself was an abuse of process because it brings in matters that need to be responded to in the substantive hearing.
4. In written submissions Council referred to the Appeal Panel decision in Kadsielski v Guco 1 Pty Ltd [2018] NSWCATAP 223 at [14] - [16]. 14. First, special circumstances are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21. It suffices if the circumstances are "out of the ordinary": Ingate v Andrews [2018] NSWCATAP 170. 15. Secondly, 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. 16. Thirdly, 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 94.14.
5. Council submitted that any failure to participate in the substantive proceedings in a certain way was irrelevant to the costs application of the summary dismissal claim. In addition concerning the alleged failure to respond to particulars Council submitted that submissions regarding the strike out application were served on Mr Joseph two business days after the request for particulars and that material contained the answers to the request.
6. Council also submitted that Mr Joseph had not met the threshold that the summary dismissal application was so misconceived as to have no tenable basis in fact and law and relied on the cases of Yelda - v Sydney Water Corporation, Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 117 in support of the contention that the threshold had not been met.
7. At [27] of Yelda the Tribunal observed: The contention that a party has made a claim that has no tenable basis in fact or law is a high threshold to reach. A complaint will be lacking in substance when it can be demonstrated there exists no factual basis for the allegation, see Langley v Niland and Anor (1981) 2 NSWLR 104 at [107] and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
8. The other main ground in Council's submissions concerned a rejection of Mr Joseph's costs concerning the preparation of his affidavit. Council submitted that despite the fact that the affidavit was tendered in the strike out application hearing, the content predominantly related to the substantive proceedings.
9. Further objections were made to the nature of the costs (or disbursements) claimed by Mr Joseph such as travelling costs and other costs incurred in the substantive rather than strike out proceedings or expended before such applications were lodged.

Mr Joseph's reply submissions

1. In brief reply submissions Mr Joseph address the issue about his affidavit being prepared predominantly for the substantive proceedings not the strike out proceedings. He submitted that the Council received the 'forensic benefit of the work', and had in fact tendered it, but now 'they' (Council) do not wish 'to pay for it'. Mr Joseph submitted that in consenting to its tender he was able to utilise the affidavit also for defending the strike out proceedings.

Consideration

1. These proceedings and the prior applications between the parties are illustrative of a protracted dispute. It is unfortunate that the parties were unable to resolve this procedural application (costs) in a more efficient manner rather than resorting to another interlocutory hearing, somewhat at odds with the guiding principle and objects of the legalisation governing the Tribunal. Sections 3 and 36 of the NCAT Act provide: 3 Objects of Act The objects of this Act are - ….. (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2. I observe that s 60 of the NCAT Act does not require that all the provisions need to be enlivened to establish special circumstances.
3. To enliven the "special circumstances" under s 60 the circumstances may be out of the ordinary, but they need not be extraordinary or exceptional.: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], applying Cripps v G & M Mawson [2006] NSWCA 84 at [60].
4. Mr Joseph submits in effect that the filing of the strike applications by Council was in effect twofold. One to succeed and bring the proceedings against it to an end, but also to have the effect of delaying the proceedings should they not be dismissed. The strike out applications caused the hearing dates set down in September 2022 to be vacated with new dates set in mid-2023. Mr Joseph submitted that this action invokes section 60 (3) (a) and (b).
5. 'Mr Joseph submitted that the 'Critcher' evidence was the only evidence relied upon by the Council in support of (amongst other things) the strike out applications. Mr Joseph also addressed in his written submissions a 'reverse onus' type argument that not only did his review proceedings have merit but that Council knew that they did, and as a result the filing of the three strike out applications shows that the Council's (strike out) proceedings themselves were frivolous vexatious or otherwise lacking in substance. Thereby invoking s 60 (3) (c) and (e).
6. In GIPA Act administrative review proceedings there is no onus on an applicant. The onus sits squarely with the respondent agency who must satisfy the Tribunal that in making their primary decision they can demonstrate how they have discharged their onus in making the relevant decision under the GIPA Act. The applicant in GIPA Act proceedings has a statutory right of review (including administrative review) if a decision has not been made within a certain timeframe or if they are dissatisfied with the decision on any of the basis set out in s 80 of the GIPA Act. Having made an application in such terms the applicant has a duty to fully disclose matters to the Tribunal and comply with orders and directions of the Tribunal as do other parties.
7. Other than an argument that there is a failure to prosecute their claim, in an application before the Tribunal it is difficult to conceive how applications relating to GIPA decisions which brought with them positive recommendations from the Information Commissioner on initial external review could ever enliven the provisions of s 55 (1) (b) of the NCAT Act, at least in the bringing of the application and in the prehearing processes.
8. Conceivably, in a matter where there was a failure to comply with directions and progress the matter an applicant could be a party in GIPA proceedings who ran foul of the provisions of s 60 (3) (b) and (f) of the NCAT Act. However in respect of a dismissal application whilst it seems unlikely that a GIPA Act applicant could offend s 55 (1) (b) as noted above, section 55 (1) (d) could apply where an applicant failed to adequately progress their matter. 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (Emphasis added)
9. I note that the Tribunal in Joseph No 1 found that Mr Joseph's claims did not enliven the provisions of s 55 (1) (b) of the NCAT Act and as such the strike out applications were dismissed. Whilst the Council submits that all questions of costs should await the outcome of the substantive proceedings there is no requirement that costs of a motion, application or some other interlocutory process should be reserved until the main matter is determined. This is, in my view, even more applicable when any costs consideration is subject to s 60 of the NCAT Act, as costs follow the event.
10. I have not engaged in a merits review of Mr Joseph' substantive applications as that is not the basis of the applications before me. I do however observe that Mr Joseph's applications are proceeding and because of the structure of s 80 of the GIPA Act they are at the very least arguable in a merits review de novo hearing before the Tribunal.
11. Having considered both parties material and submissions I believe that it is appropriate having regard to s 60 of the NCAT Act, to make a limited costs order for Mr Joseph's disbursements incurred in responding to the strike out applications.
12. In my view the provisions of s 60 (3) (c) appear relevant to the strike out application. Ideally the previously constituted Tribunal would be considering the question of costs, especially as I am not trying to read beyond the stated basis that the strike out applications were unsuccessful. In my view they failed for the reasons that I have identified at [34]-[36] and [38] above. It is for those reasons that I rely on s 60 (3) (c ) in making a costs order under s 60 of the NCAT Act.
13. In making this finding I note that the circumstances need only be out of the ordinary not extraordinary or exceptional.
14. Mr Joseph was required to respond to applications and the tender of material with dual purposes (to address the strike out and the substantive proceedings) and this was both permissible and was clearly utilised by both parties in dealing with the strike out applications. The disbursements incurred in respect of the affidavit should however be discounted by approximately 50% on this basis.
15. In dealing with a fixed or lump sum order for costs, the Court of Appeal in Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294, Beazley P, Meagher and Payne JJA set out the following principles in relation to a fixed costs order at follows [12] - [18]: [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: Hamad 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 Ply Ltd (No 3) (2015] NSWCA 121 at [7]. [15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamad v New South Wales at (814]. ... [18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamad v New South Wales at [816]-[817] is apposite.
16. Noting [18] of Bechara above, it is appropriate to make a fixed lump sum cost order (for disbursements as is the case here) as the amount is modest.
17. Having examined the receipts and noting the dates of the work and my finding at [40] above, I believe that the appropriate calculation is to make an order in the amount of $700.00 payable by the Council to Mr Joseph for disbursements (as a costs order) under s 60 of the NCAT Act.

Orders

1. The Tribunal makes the following orders: 1. The application for a costs order made by the applicant is granted in part. 2. The respondent is to pay the applicant's disbursements incurred in responding to the strike out application in the lump sum amount of $700.00 within 28 days of the receipt of these orders.

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: 12 April 2023