The plaintiff's submission accepted that it was "a serious matter" to order costs against a statutory tribunal, especially where a submitting appearance has been filed. However, the argument attempted to point to special features of the current proceedings that, as submitted by the plaintiff, justified such an exceptional order.
21 First of all, there had been excessive delay in the disposition of the matter at first instance. A gap between the closing of submissions before the FTT on 17 August 2001 and the delivery of orders of 13 March 2003 was excessive and inexplicable. Secondly, there was an initial refusal to provide reasons for the orders and/or decision, notwithstanding that the plaintiff promptly sought such reasons on 27 March 2003. On 7 April 2003, the Tribunal informed the plaintiff that reasons were not available and to obtain those reasons, proceedings had to be commenced in this court resulting in the consent orders of 6 May 2003. A month later, those reasons were provided. It is further emphasised that, in relation to the provision of reasons following the initial refusal there was "a change of heart" and reasons were provided. Thirdly, it is said that there were multiple misrepresentations of Mr Baker's status, that the Tribunal did not provide appropriate assistance to the parties or information about the status of the decision maker in a timely way.
22 Counsel for the first and second defendants, Mr Harper, essentially agreed with the thrust of the plaintiff's submissions to the effect that the Tribunal should pay the costs of the other parties. Counsel emphasised that his clients were the "least responsible" for any costs incurred, they had been brought to this court by the plaintiff, that counsel's instructing solicitors had raised the fundamental point upon which the substance of the proceedings has turned within a few weeks of the reasons being provided, that the court should have regard to the "degree of egregiousness" of the errors made by the Tribunal and that, although the Tribunal did not object to the making of orders in the nature of mandamus by Adams J, the Tribunal must have known, or should reasonably have known Mr Baker's position and yet they asked him to prepare reasons and publish those reasons in a document which expressly purported to be a document issued by the Tribunal itself. Counsel for the first and second defendants further pointed out that when the matter came before the duty judge of this court on 11 December 2003, the Crown Solicitor acting for the Tribunal indicated that there may be some argument, subject to further consideration, based upon the transitional provisions in the CTTT Act.
23 Ms Johnson, solicitor for the Tribunal, provided a comprehensive rebuttal to these submissions in opposing the proposition that the Tribunal should pay costs, whilst making fair and appropriate concessions in relation to some of the considerations. In relation to the complaints made about delay, the Tribunal argued that such matters were the responsibility of the individual member of the FTT and not of the current Tribunal, of which Mr Baker has never been a member. The Tribunal was not liable for costs on the basis of that delay. As to the initial refusal to provide reasons, that was a matter essentially within the remit of the FTT, and again not the responsibility of the Tribunal, as presently constituted. It was argued that the Tribunal was placed in a somewhat awkward position, newly constituted by the legislature, in the context of somewhat complicated transitional provisions, with appointments expiring and new appointments being made to the embryonic Tribunal. It was emphasised that no one had alleged deliberate misleading conduct against the Tribunal, and nor could any such proposition be properly put. I would draw the inference in the light of all of these matters that there was an element of confusion and error, which was regrettable, but that there was no lack of good faith on the part of those administering the Tribunal. Ms Johnson candidly admitted that elements of the correspondence and documents issued by the Tribunal had the effect of misleading other parties to the proceedings and that elements of this conduct were "unfortunate" but, for all that, they represented administrative errors in the context of the transitional period.
24 I accept that the thrust of submissions made on behalf of the Tribunal. I agree that the errors and delays of the FTT cannot, in point of law, be attributed to the Tribunal. In my view, it is significant that the Tribunal has not played an active role in the proceedings before this court save to provide assistance when required to facilitate the implementation of the orders made by the court and has acted consistently with the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35 - 36. Whilst it is regrettable that greater clarity was not cast on this matter at an earlier date, it must be said that the high water mark of the indication that steps were being taken by the Tribunal to finalise the adjudication of this dispute, that is to say the reasons for decision given on 6 June 2003 (with the misleading heading and seal of the Tribunal), also contained the unequivocal statement that the purported decision maker had never been a member of the Tribunal, a statement which should have and did in fact cause warning bells to ring in the minds of the respective legal advisers. I accept, also, that what was involved was a number of unintentional administrative and communication errors made in the context of a complicated and changing legislative environment and accept that in a number of respects the Tribunal was placed in an awkward position.
25 Ms Johnson sought to draw an analogy between a case such as the present involving an application for costs against an independent tribunal and the high barrier which the courts have set indicating a reluctance to make costs orders against magistrates. In Sankey v Whitlam [1977] 1 NSWLR 333 at 363 Hutley JA took the view that the established case law meant that only where a magistrate has been guilty of "serious misconduct, corruption, gross ignorance or has been perverse" should a costs order be made against the magistrate.
26 In ex parte Vincent (1990) 16 WN (NSW) 215 the Full Court held that, although a magistrate had made "an extraordinary and astounding blunder …" that nonetheless he had not been guilty of such perverseness as to render him liable to an order for costs. The court noted that it was hard on the applicant that she should have to pay the costs of the application but with regret came to conclusion that the circumstances did not justify such an order.
27 In Cummins v McKenzie [1979] 2 NSWLR 803, Sheppard J was faced with the situation where a magistrate had been dealing with an offence of failure to stop and declined to hear evidence from the defendant. His Honour referred to earlier cases including ex parte Blume; re Osborn (1958) SR (NSW) 334 at 339 and Carr v Werry [1979] 1 NSWLR 144 and 147 in holding that in order to justify an order for costs against the magistrate there must be "a clear case of serious misconduct" and that an "astounding blunder" is not sufficient to lead to the conclusion that a magistrate has acted perversely. Though there was a denial of natural justice in Cummins, there was not demonstrated a "gross ignorance or perversity in the relevant sense" (p 810). These and other cases were distilled and applied by Brooking JA in the Victorian Court of Appeal, which judgment was approved of by Charles and Buchanan JJA in the Magistrates' Court of Victoria at Heidelberg v Robinson (2000) 2 VR 233. After referring to the case law, his Honour formulated the test as to the award of costs against an inferior court as requiring the commission of "some serious misconduct or serious impropriety, including a failure to observe some fundamental principle of justice…." But a mere blunder would not attract an award of costs. The approach should be benign, or reasonably so, where a bona fide mistake has been made ([10] - [11]). However, in that case, the Court of Appeal found the requisite circumstances to justify a costs order; there had been an overbearing and bullying threat to deal with an advocate for contempt, amounting to serious misconduct on the part of a magistrate. (per Charles JA at 244 [24]).
28 In Our Town FM v Australian Broadcasting Tribunal (1987) 77 ALR 609 Wilcox J, of the Federal Court of Australia, was asked to make an order against the relevant tribunal. At 612 his Honour held that it was relevant in considering such an application that the role of the tribunal had been "circumscribed", and that the tribunal had not actively intervened to support its decisions. His Honour held that it was "somewhat hard" for the courts to require tribunals not to actively intervene and "at the same time, to order the Tribunal to pay costs…." His Honour declined to lay down any categorical rule but thought generally that "only in an unusual case should the court order that the Tribunal pay costs …" [49]. As Santow J said in Wentworth v Wentworth (1999) 46 NSWLR 300 at [49]: