Liang v University of Technology, Sydney [2019] NSWCATAP 17 | Case summary

NCAT Appeal Panel|2019-01-14

Summary

Reasons for decision in this matter were published on 29 November 2018: Liang v University of Technology, Sydney [2018] NSWCATAP 285. For the reasons there stated, we refused leave for Dr Liang to appeal and dismissed her appeal.
At par [103] we noted that the appellant has been unsuccessful, and gave directions as to submission on costs. We also sought the parties' views on whether the issue of costs could be determined on the papers and without a hearing. Submissions were subsequently received from all parties.
No party objects to the matter being heard on the papers. Accordingly, we direct that the matter be determined without a hearing: Civil and Administrative Tribunal Act 2013 (NSW), s 50(2).
In summary, the respondents seeks cost as follows:

costs on the party/party up to 5pm on 17 April 2018; and
costs on the indemnity basis after 5pm on 17 April 2018.

For the following reasons we are satisfied that the appellant should pay the respondents' costs as agreed or as assessed.

Preliminary issue

We note at the outset that the respondents seek costs of both the appeal and of the matter under appeal, GEN 18/07468. We decline to deal with the costs of the latter proceedings. Any costs application should be made to the Consumer and Commercial Division of the Tribunal.

Relevant principles

The relevant costs rule appears in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW). That section 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.
The section has been considered in many cases. 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.

Are there special circumstances warranting an award of costs?

The appellant's submissions, while voluminous, can be summarised simply. She submits that, in accordance with s 60(1), each party should pay its own costs. Her submissions raise many other issues, which are not relevant to the issues before us. These include, but are not limited to:

maintaining her position that the decision of the Tribunal ion GEN 18/07468, despite our appeal decision dismissing her appeal, was infected by error;
her being denied procedural fairness in the proceedings;
that solicitor Mr Jack Chen had sworn a false or misleading affidavit.

We reject all of those submissions as being without any substance.
On the other hand, the principal matter on which the respondents rely on as warranting an award of costs is Dr Liang's conduct in continuing to prosecute her appeal regardless of its merit.
There is substance in the submission that the appeal lacked merit. As our reasons reflect, the appellant raised thirteen grounds of appeal, none of which raised an error of law, most of which we found to be misconceived or without substance, and one of which we found to be scandalous. In addition, we decided that we would not grant leave to appeal in respect of any ground. We are not satisfied that the appellant has raised any issue of principle, a question of public importance, an injustice which is reasonably clear or if the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
Furthermore, at the appeal hearing the appellant also made the following preliminary applications namely:

that the appeal be transferred to the Supreme Court of NSW;
that questions of law be referred to the Supreme Court of NSW;
that summons be issued; and
that the appeal be adjourned.

We dismissed each of those applications.
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 be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].
Given that:

the appeal grounds were all without substance;
the appellant conducted the proceedings in a way that unnecessarily disadvantaged the respondent (s 60(3)(a)). This was particularly manifested in the appellant's lengthy and generalised submissions, exacerbated by some of the submissions making no sense, or being irrelevant;
the scandalous matters referred to in pars [94] and [95] of the appeal decision, in our view, when considered cumulatively, these matters there are special circumstances warrant an award of costs.

Should the applicant be ordered to pay the respondent's costs?

Even if we are satisfied that special circumstances exist, we have a discretion as to whether or not to award costs; we are not obliged to do so: Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [21] and [24].
In Choi v University of Technology Sydney [2018] NSWCATAD 7 at [36], in remarks with which we agree, the Tribunal stated: The general rule, that each party pays that party's own costs, promotes such accessibility, particularly to self-represented applicants such as Ms Choi. However, the object of being accessible to applicants co-exists with the object of being responsive to the needs of all users, including respondent agencies in administrative review proceedings. Where applicants pursue proceedings which are devoid of merit, and when they make allegations of serious misconduct, which are not supported by evidence, there are, as the University submitted, costs to the agency and to the public purse.
We consider that the appellant ought to pay the respondents' costs.

Order 1. The appellant is to pay the respondent's costs as agreed or as assessed.

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: 14 January 2019

Liang v University of Technology, Sydney

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