Lisle v Courtney

Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152

Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14

CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21

eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94

Immigration and Ethnic Affairs, Re Minister for; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106

Levy v Mercedes-Benz Australia/Pacific Pty Ltd (No 2) [2024] NSWCATAP 155

MacDermott v Wang [2022] NSWCATCD 71

New Island Developments Pty Ltd v New Island Investments One Pty Ltd (No 2) [2024] NSWSC 454

Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84

ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270

Soma Lasers Australia (Int) Pty Ltd v; 97 Compression Pty Ltd t/as Estetiko Skin and Laser (No 2) [2025] NSWCATAP 3

The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245

The Owners - Strata Plan No. 47027 v Peter Clisdell Pty Ltd (No 2) [2018] NSWCATAP 46

1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 10 October 2024 in proceedings between the appellant, Julia Lisle (Dr Lisle), who was the landlord, and the respondent, Rod Courtney (Mr Courtney), who was the tenant, of premises at Yamba in New South Wales (the premises), in which Mr Courtney sought relief against Dr Lisle under the Residential Tenancies Act 2010 (NSW). The Tribunal ordered Dr Lisle to pay Mr Courtney the sum of $6,758.57.
2. On 11 April 2025, the Tribunal constituted by myself dismissed the appeal upon its withdrawal by Dr Lisle.
3. Mr Courtney has applied for an order that Dr Lisle pay his costs of the appeal in the sum of $3,251.60 (the Courtney costs application).
4. I have decided that the Courtney costs application should be dismissed, and that each of Dr Lisle and Mr Courtney should pay their costs of the appeal.

1. On or about 6 October 2022, Dr Lisle as the landlord and Mr Courtney as the tenant entered into a residential tenancy agreement of the premises for a term of 12 months commencing on 6 October 2022.
2. On 21 July 2023, Dr Lisle and Mr Courtney agreed to vary the residential tenancy agreement by reducing the rent payable thereunder with a consequential credit payable by Dr Lisle to Mr Courtney (the rent reduction agreement).
3. On 5 September 2023, Dr Lisle by her agent advised Mr Courtney that she would not honour the rent reduction agreement.
4. On 9 September 2023, Mr Courtney vacated the premises resulting in the amount of the credit payable by Dr Lisle to Mr Courtney being $6,578.57.

The history of the proceedings in the Consumer and Commercial Division

1. On 28 November 2023, Mr Courtney as the applicant commenced proceedings 2023/00430018 against Dr Lisle as the respondent by lodging a Tenancy application in which he claimed compensation for breach of the residential tenancy agreement (the Courtney application).
2. On 10 October 2024, the hearing of the Courtney application took place at Grafton with Mr Courtney representing himself and there being no appearance by or on behalf of Dr Lisle. The Tribunal constituted by General Member S Radburn by order 1 made a money order of $6,578.57 in favour of Mr Courtney (the 10 October 2024 order) and gave oral reasons for the decision (the 10 October 2024 decision).
3. On 6 March 2025, the General Member provided a written statement of reasons for the 10 October 2024 decision.

1. On 18 February 2025, Dr Lisle as the appellant commenced proceedings 2025/00064704 against Mr Courtney as the respondent by lodging:

(1) a Notice of Appeal in which:

(a) she sought leave to appeal against the 10 October 2024 order on the ground that she may have suffered a substantial miscarriage of justice because:

(i) the 10 October 2024 decision was not fair and equitable:

"... The decision overlooked the clear evidence of property damage, 4 months of rent free period Mr Courtney had, significant rent reduction. ..."

"Property Damage Evidence:

Photos of property damage, including pulled-down curtains.

Receipt for carpet replacement in one bedroom due to cat urine damage.

Photos of damaged garden plants.

Photos of patio screens damaged by cats.

Additional Evidence:

I will seek affidavits from tradespeople confirming their inability to complete renovations on time.

Tradespeople experienced significant delays, resulting in postponed payments for over a year after renovations began."

"Reason for Documentation Delay:

I do not live in NSW and was unable to visit the property after Mr. Courtney moved out.

I relied on photos from others to assess the damage initially.

I only became aware of the extent of the damage when I returned to the property after renovations were completed.

This included discovering the ruined patio garden, damaged screens, and a persistent cat urine stench.

As a result, I had to arrange additional carpet cleaning and deodorization.

I also experienced difficulties obtaining affidavits from tradespeople, as I was not present to coordinate the process.

Personal Circumstances:

I am a busy medical practitioner working 12-hour days in a rural I area of need in Western Australia.

Due to my demanding schedule and professional obligations, I did not have the time or capacity to thoroughly review and respond to the 250 pages of vile and intimidating documentation submitted by the other party."

"I live interstate and have spent a considerable amount of time overseas caring for my mother, which limited my availability to manage this matter.

My demanding professional schedule, combined with working long hours as a medical practitioner in a rural area of need, further contributed to the delay.

The other party's refusal to allow me to be represented by a legal professional significantly hindered my ability to respond in a timely manner."

(2) an Application for stay of original decision pending appeal in which she sought a stay of the 10 October 2024 order (the Stay Application) for the following reasons:

"I am applying for a stay of orders due to the following exceptional personal circumstances:

Recent Bereavement:

My mother recently passed away, which has significantly impacted my emotional and mental well-being. I am still in the process of grieving, and this has affected my ability to fully engage with the legal proceedings.

Residence in a Different State:

I currently reside in a different state, which presents logistical challenges in responding to and complying with the existing orders within the required timeframes.

Threats and Financial Intimidation:

Mr. Courtney has made explicit threats to bankrupt me, causing considerable distress and uncertainty about my financial security.

Ongoing Harassment and Safety Concerns:

I have been subjected to stalking, harassment, and intimidating behavior by Mr. Courtney. This includes him targeting my property and engaging in conduct that makes me fear for my safety.

No current contact with Mr. Courtney (Following Police Advice):"

1. On 20 February 2025, the Tribunal constituted by myself made procedural orders for the hearing of the appeal and the Stay Application including by order 1 listing the appeal for a call over and the Stay Application for hearing on 5 March 2025 at 2.15 pm, and by orders 2 and 3 providing for the documents to be relied on by the parties to be lodged with the Appeal Registry and served upon the other party (the 20 February 2025 orders).
2. On 25 February 2025, the Tribunal constituted by myself made procedural orders for the hearing of the appeal and the Stay Application including by order 1 extending the time for compliance with orders 2 and 3 of the 20 February 2025 orders, and by order 3 listing the appeal for a call over and for hearing of the Stay Application on 14 March 2025 at 11.30 am.
3. On 5 March 2025, Dr Lisle lodged her submission comprising four pages together with four pages of documents in support of the Stay Application.
4. On 11 March 2025, Mr Courtney lodged his statement comprising 15 pages together with 28 pages of documents in opposition to the Stay Application (the Courtney stay documents).
5. On 14 March 2025, the Tribunal constituted by myself made procedural orders for the hearing of the appeal including by orders 2 and 3 providing for the documents to be relied on by the parties to be lodged with the Appeal Registry and served upon the other party, by order 4 listing the appeal for hearing on 18 June 2025 at 2.15 pm in Sydney, and by order 6 dismissing the Stay Application (the 14 March 2025 orders)
6. On 31 March 2025, Mr Courtney lodged his Reply to Appeal with an accompanying attachment of 49 pages comprising a document of 5 pages opposing leave to appeal being granted for the following reasons together with the Courtney stay documents:

(1) the time to appeal had expired;

(2) the making of the rent reduction agreement;

(3) the appeal was lodged without Dr Lisle knowing the grounds for the 10 October 2024 decision;

(4) the decision of the review officer of the NSW Police Force under the Government Information (Public Access) Act 2009 (NSW) advising that there no AVOs or event reports which resulted in an order not to contact another person were found (the Courtney GIPA Act decision);

(5) his search as to the address of Dr Lisle.

1. On 8 April 2025, Dr Lisle sent an email of the Appeal Registry advising of her wish to withdraw the appeal.
2. On 10 April 2025, Mr Courtney sent an email of the Appeal Registry attaching his letter of the same date in which he advised he wished to make an application for costs.
3. On 11 April 2025, the Tribunal constituted by myself dismissed the appeal and made procedural orders for the determination of the foreshadowed costs application of Mr Courtney providing by order 3 for the lodgement and service of the costs application, by orders 3, 4 and 5 for the lodgement and service of evidence and submissions by the parties, and by order 6 requiring the question of whether a hearing may be dispensed with to be addressed by the parties (the 11 April 2025 orders).
4. On 22 April 2025, Mr Courtney lodged his submissions which included the Courtney costs application (the Courtney costs submissions).
5. On 29 April 2025, Dr Lisle lodged her submissions in response to the Courtney costs submissions (the Lisle costs submissions).
6. On 9 May 2025, Mr Courtney lodged his submissions in reply (the Courtney costs submissions in reply).

(1) whether a hearing of the Courtney costs application should be dispensed with;

(2) the Courtney costs application.

Whether a hearing of the Courtney costs application should be dispensed with

1. Each of Mr Courtney and Dr Lisle consents to a hearing of the Courtney costs application being dispensed with.
2. I am satisfied that that the issues for determination in relation to the Courtney costs application can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, I have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order dispensing with a hearing in relation to the Courtney costs application.

1. Mr Courtney has not identified the source of the Tribunal's power to make the costs order he is seeking. Dr Lisle contends that the source is s 60(2) of the NCAT Act.
2. Having regard to s 35 of the NCAT Act and rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) and the amount of the money order which is challenged in the appeal is less than $30,000.00, I am satisfied that the Courtney costs application is being made under s 60(2) of the NCAT Act. It follows that the determination of this application may involve answering the following three questions:

(1) whether there are special circumstances warranting an award of costs in favour of Mr Courtney;

(2) if so, whether the discretion should be exercised to award costs;

(3) if so, what amount of costs should be awarded to Mr Courtney.

1. Before dealing with this issue, it is appropriate to set out the applicable provisions of the NCAT Act and legal principles, and to summarise the submissions of the parties.

1. Part 4 Division 5 (ss 56-63) contains provisions dealing with participation in proceedings in the Tribunal. Section 60 deals with costs, and relevantly 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.

costs includes -

(a) ...

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

"Special circumstances" in s 60(2) of the NCAT Act

1. "Special circumstances" in s 60(2) of the NCAT Act are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
2. In considering whether special circumstances exist for the purposes of s 60(2) of the NCAT Act:

(1) each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27];

(2) 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].

The exercise of the discretion in s 60(2) of the NCAT Act

1. Where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account: Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24].
2. 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].
3. In The Owners - Strata Plan No. 47027 v Peter Clisdell Pty Ltd (No 2) [2018] NSWCATAP 46 at [44] the Appeal Panel decided it would not have exercised the discretion under s 60(2) of the NCAT for reasons which included that the respondent was not legally represented at the hearing of the appeal.

1. In New Island Developments Pty Ltd v New Island Investments One Pty Ltd (No 2) [2024] NSWSC 454 (New Island Developments) at [18]-[20], Rees J recently explained the principles governing an application for costs in a case which has been resolved without a hearing on the merits:

[18] In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625, McHugh J stated:

"When there has been no hearing on the merits ... a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits ... The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. ...

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. ...

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings."

[19] In One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548, Burchett J also observed at [6]:

"... it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs."

[20] One.Tel was followed in Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302, where Davies AJA (Mason P and Meagher JA agreeing) noted that a judge may award costs where the matter does not proceed to judgment "generally ... because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked difference in the reasonableness of the actions taken by the parties, so that one party should be rewarded for its reasonable actions and the other should suffer a detriment in costs": at [5]. See likewise Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 at [26] to [30] (per Payne JA, Basten and Meagher JJA agreeing)."

1. The citation of Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625; [1997] HCA 6 (Lai Qin) in New Island Developments at [18] omits the following sentence immediately following the cited words in the second paragraph:

"In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action."

1. In Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84 (Nichols):

(1) Payne JA (with Meagher JA at [13] agreeing) at [25] set out with approval the full passage in Lai Qin at 624-625 and at [30] observed:

"If both parties to a proceeding which has been settled without a hearing on the merits have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings."

"... although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon.

... once it is clear that there is a real dispute as to a significant fact in issue in the proceedings, it is inappropriate to determine that matter, other than in making an interlocutory ruling, by accepting one party's case without permitting the other party an opportunity to challenge the opposing party's witnesses."

1. The observations in Nichols at [8]-[9], [30] have recently been applied in the context of the question under r 42.20(1) of Uniform Procedure Rules 2005 (NSW) whether there are grounds for the Court to "order otherwise" than that the plaintiff pay the defendant's costs of the proceedings in circumstances where the Court makes an order for the dismissal of proceedings: Balout v Bella Ikea Cronulla Pty Ltd (No 2) [2024] NSWSC 1173 at [51]- [52], [58] (Rees J).
2. The principles in Lai Qin and One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 (ONE.TEL) have been applied in the Tribunal: see, for example, Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106 at [45]- [48]. While withdrawal of proceedings in the Tribunal whether at first instance or on appeal, may in some circumstances, constitute sufficient "special circumstances" to justify a costs order, the mere fact that proceedings are withdrawn is not, of itself, a sufficient "special circumstance" to justify a costs order: MacDermott v Wang [2022] NSWCATCD 71 at [45(4)].

The recovery of costs by a self-represented litigant

1. It is an established principle that as a general rule a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation. Under an exception to the general rule, a self-represented litigant who happens to be a solicitor may recover his or her professional costs of acting in the litigation: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 (Bell Lawyers) at [1] (Kiefel CJ, Bell, Keane and Gordon JJ); citing Cachia v Hanes (1994) 179 CLR 403 at 410-411 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); [1994] HCA 14 where it was stated in reference to an English statute "the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expences of his travell and losse of time"".
2. This principle is applied in the Tribunal: see, for example, Levy v Mercedes-Benz Australia/Pacific Pty Ltd (No 2) [2024] NSWCATAP 155 at [12]; Soma Lasers Australia (Int) Pty Ltd v; 97 Compression Pty Ltd t/as Estetiko Skin and Laser (No 2) [2025] NSWCATAP 3 at [14].

1. In the Courtney costs submissions, Mr Courtney after setting out the factual background and the history of the proceedings in the Consumer and Commercial Division has relevantly made the following submissions:

"Over four months past the filing date to file a Stay and Appeal application the Appellant filed both documents. I was overseas at the time of that application where for the next two weeks her actions severely hindered what was supposed to be a well needed holiday.

Although I have a severely disabled wife (the Appellant is aware of this as they were previously friends and the Appellant is a Geriatrician doctor), my mother had to be placed in a Nursing home in 2024 and passed away on 14 November 2024. Upon our return to Australia we urgently had to return home from Brisbane due to Cyclone Alfred and had to spend many days both in preparation and cleanup after that event. I still managed to comply with every timeline required by the NCAT Appeal Panel.

The Appellant throughout her Stay and Appeal applications made baseless allegations of intimidation, harassment and stalking of her by me under circumstances where I had never phoned her, and she later stated to the Appeal Panel she didn't even reside in the same State. All communication between us was via email.

This resulted in my having to file a GIPA application with the NSW Police who confirmed that nothing untoward was held on their records. There was no AVO applied for. Nothing. Accordingly, the allegations were proved to be complete fabrications. A copy of that report was filed by me as part of the reply to the Appellants Appeal application.

It was after my reply to the Appeal was filed the Appellant shortly thereafter withdrew her Appeal application and paid me the awarded $6,578.57 on 7 April 2025. She did not however pay nearly six months of accumulated interest.

For an individual who is supposed to be an upstanding member of the community as a Doctor, earns approximately $15,000pw (my wife previously worked in the same office as the Appellant) she has basically used the Court system to cause me as much grief as possible, then just withdrew the application. She hadn't applied to NCAT for a copy of the recording of the NCAT final hearing to determine whether there were even grounds to appeal.

To this day my wife and I have no idea why she undertook the (in)action she did, and she hadn't raised a single complaint to either my wife and I, or her Agent that we had done anything to her or her residence during the period of tenancy. The bond we paid for the lease was actually returned in full.

Please note the original NCAT application consisted of 233 pages of evidence. No application for costs were sought on that occasion.

Although I am not a solicitor, I have worked conducting investigations for over 35 years and am currently registered as a private investigator, being the Managing Director of Adept Investigations & Training Pty Ltd. ABN 86 605 138 181 refers. Although I retired as a driving instructor on 7 February 2025 (secondary employment), my registration as an investigator is still current and I am still working in that field. My client charge rate is $90 per hour, being the rate I have calculated some of the costs outlined below.

Apart from my physical time on what was supposed to be a holiday in Thailand, as a result of the timelines imposed by the Appeal Panel I had to forgo or delay other paid work to complete these tasks on time.

The Appellant was also notified via email on 24 February 2025 that should she fail in her Applications before the Appeal Panel I would be seeking costs.

My submissions as to costs of the Stay and Appeal applications are both above, and actual costs are noted follows:

Hotel room booking in Bangkok whilst on holidays - 1 day required in search for documents after receipt of Stay and Appeal applications dated 20 February 2025.

Check requirements for reply to NCAT. Commence formatting reply to Stay and Appeal applications and locating relevant information online (whilst in Bangkok).

Contact with Appellant via email on 21 February 2025 (required by NCAT) re request for extension of time.

Completion of compiling my reply to Stay and Appeal Application. Note: NCAT Appeal Panel have advised the Stay and Appeal Panel applications were sent both via email and hard copy "out of order" resulting in my having to mostly complete the Reply to Appeal as part of the reply to the Stay application. A copy is noted below.

Travel to post office and post documents as noted on the next row.

Postage costs - sending Stay application to NCAT Appeal panel.

Cost of application for a voice recording (NCAT Orders of 14 March 2025).

Compile GIPA application to NSW Police to refute allegations of harassment, intimidation and stalking from Appellant.

GIPA application to NSW Police to prove Appellant's accusations were false. (the decision of the Police is attached to the reply to appeal.

Travel to post office and post documents as noted on the next row (30 mins).

Attempt to obtain legal advice from Law Access regarding email from NCAT Appeal Panel of same date (30 mins - inc on hold).

Phone calls to NCAT from Bangkok and upon return to Australia (not including cost of calls, just for time). 36 mins

Receipts for the Hotel in Bangkok and postage of documents to the Appeal Panel are below"

1. in the Lisle costs submissions, Dr Lisle has opposed the Courtney costs application. She has set out authorities in relation to s60(1) and (2) of the NCAT Act and submitted that that there are no reasons or special circumstances established by Mr Courtney to the requisite standard in the appeal justifying a departure from the general rule in s 60(1).

1. In the Courtney costs submissions in reply, Mr Courtney has replied to the Lisle costs submissions and relevantly made the following submissions:

"I refer to the most recent Orders of the Appeal Panel dated 11 April 2025. In accordance with those Orders I can provide the following information and submissions as to the information provided by the Appellant, dated 29 April 2025:

1. Having worked in the legal system for over 30 years I believe any legally trained person would agree the submissions provided by the Appellant were completed by a solicitor, not the medically trained person that she is, something that was never been agreed upon at any time from the filing of the initial NCAT Application (Nov 2023).

2. The Applicant had sought to be legally represented at the outset of the NCAT process. I declined the request as the NCAT provides published information that parties should attempt to resolve the matters themselves without legal representation, and I was representing myself.

3. If the Appellant had attempted to have as much input into her response to the initiating Application filed by me - basically Nil (before the NCAT), as that filed in her response dated 29 April 2025, it's most likely this response would not have been necessary.

4. The Appellant would have known she was approximately four months outside of the time limit to file an Appeal at the time of it's filing and was notified by me at the outset of the appeal process of that fact and if she "went down that path", I would be seeking costs.

5. The Appellant has provided no reason for her withdrawal of the Appeal, however she became aware in my filed response that the NSW Police had provided documentation to me that completely proved her allegations of intimidation, harassment and stalking over years noted throughout her Appeal Application were completely baseless and no record of any criminal activity (AVO or otherwise) was recorded against me at any time on NSW Police records.

6. I believe the Appellant has taken the action she did to cause myself and my wife as many problems as she could due to her losing the case before the NCAT. She had no regard to the requirements of the legal system during the NCAT process and just ignored it."

Whether there are special circumstances warranting an award of costs in favour of Mr Courtney

1. I am not satisfied that there are special circumstances warranting an award of costs in respect of the appeal in favour of Mr Courtney within s 60(2) of the NCAT Act for the following reasons:

(1) Mr Courtney has not addressed which if any of the factors in s 60(3) of the NCAT Act are applicable and the reasons why he contends they are applicable;

(2) the personal circumstances of Mr Courtney (his holiday, the medical condition of his wife and the impact of Cyclone Alfred) do not establish that Dr Lisle conducted the appeal in a way that unnecessarily disadvantaged him within s 60(3)(a) of the NCAT Act;

(3) the withdrawal of the appeal by Dr Lisle does not establish that the appeal had no tenable basis in fact or law within s 60(3)(c) of the NCAT Act or was frivolous or vexatious or otherwise misconceived or lacking in substance within s 60(3)(e) of the NCAT Act. As Dr Lisle had not lodged any document in support of the appeal in compliance with order 2 of the 14 March 2025 orders, I am not in a position to make any assessment of her prospects if she had pursued the appeal;

(4) there is insufficient evidence to determine the truth of the allegations by Dr Lisle of harassment by Mr Courtney. The Courtney GIPA Act decision does not prove that the allegations were untrue. In any event, I consider that these allegations are irrelevant to the existence of special circumstances within s 60(3) of the NCAT Act.

1. It follows that the Courtney costs application should be dismissed, and an order should be made that Dr Lisle and Mr Courtney are to pay their costs of the appeal to give effect to the position in s 60(1) of the NCAT Act.

If so, whether the discretion should be exercised to award costs

1. As I have not been satisfied of the condition in s 60(2) of the NCAT Act that there are special circumstances warranting an award of costs of the appeal in favour of Mr Courtney, this question does not arise for determination. If I had found that there were special circumstances, I would not have exercised the discretion to award costs of the appeal in favour of Mr Courtney for the following reasons:

(1) having regard to the principles in Lai Qin at 624-625 and Nichols at [30], I would not have been satisfied that Dr Lisle either acted unreasonably in commencing and maintaining the appeal until 11 April 2025, or even though she acted reasonably in so doing she was almost certain to have failed if the appeal had been determined on the merits;

(2) having regard to the principles in ONE.TEL at [6], I would not have been satisfied that Dr Lisle effectively surrendered to Mr Courtney in withdrawing to the appeal;

(3) Dr Lisle was self-represented.

If so, what amount of costs should be awarded to Mr Courtney

1. In view of my decision that the Courtney costs application should be dismissed, this question does not arise for determination. If I had decided to award costs of the appeal in favour of Mr Courtney, then, having regard to the principles in Bell Lawyers at [1], I would not have awarded any costs other than $19.30 for postage.

(1) A hearing of the costs application of the respondent is dispensed with.

(2) The costs application of the respondent is dismissed.

(3) Each of the appellant and the respondent is to pay their costs of the appeal.

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.