McEwan v Port Stephens Council - [2022] NSWCATAP 386 - NSWCATAP 2022 case summary — Zoe

NSWNSWCATAP

McEwan v Port Stephens Council

[2022] NSWCATAP 386

NCAT Appeal Panel|2022-12-13|Before: In Re J

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2022-12-13

Before

In Re J

Catchwords

(2003) 195 ALR 225 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
(2019) 268 CLR 76 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55
(2006) 229 CLR 577 Cripps v G & M Mawson [2006] NSWCA 84 Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Ex parte C.J.L [1986] HCA 39

Source

Original judgment source is linked above.

Catchwords

(2003) 195 ALR 225 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50(2019) 268 CLR 76 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55(2006) 229 CLR 577 Cripps v G & M Mawson [2006] NSWCA 84 Ebner v Official Trustee in Bankruptcy [2000] HCA 63Ex parte C.J.L [1986] HCA 39(1986) 161 CLR 342 Johnson v Johnson [2000] HCA 48

Judgment (13 paragraphs)

[1]

Background

On 14 September 2022, we dismissed the appeal - McEwan v Port Stephens Council [2022] NSWCATAP 300 (Principal Decision). We also made orders for the exchange of submissions and documents in relation to costs and directed that the parties include submissions concerning whether an order should be made under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) dispensing with a hearing.
At [88] of the Principal Decision, we stated: Costs The respondent foreshadowed that it would be seeking its costs if the appeal was unsuccessful. The appellant has provided submissions in that regard. At the conclusion of the hearing of the appeal hearing we explained to the parties that we would make provision for directions in the event the costs application was being pressed.

[2]

Procedural Directions for the Appeal

In accordance with the standard orders made for the hearing of an appeal, on 22 June 2022 (Amended) Orders were made for the filing and exchange of the parties' submissions and evidence in respect of the appeal. Order 6 (2) under the heading "NOTES" directed the parties as follows: If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Panel and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal.
In accordance with those procedural orders made on 22 June 2022: 1. The appellant's submissions were lodged with the Tribunal on 30 June 2022. No submissions were made with respect to costs of the appeal; and 2. The respondent lodged its submissions on 29 July 2022. Paragraph [49] of those submissions stated: The Respondent seeks its costs of this appeal pursuant to s 60(2) of the NCAT Act. 1. No further submission or reasons in support of that claim for costs was included in the respondent's written submissions. 2. The appellant lodged a submission on 26 August 2022 in reply to that part of the respondent's submission for which it had sought its costs. In summary, and without going into the reasons advanced by the appellant in those submissions, the appellant contended that the respondent's conduct in seeking its costs of the appeal was "punitive" and a form of "punishment for [the appellant] exercising fundamental rights …": at [2] and [3].
As set out above, at the conclusion of the hearing of the appeal on 2 September 2022, we made provision for the parties to lodge submissions in respect of costs and to indicate if they consented to us dispensing with a hearing if any party made an application for costs.
On 21 September 2022, after the publication of our Principal Decision, the respondent lodged written submissions in support of an application for its costs of the appeal. The respondent sought an order under s 50(2) of the NCAT Act, dispensing with a hearing on costs: at [44]; also see [45]-[48].
On 7 October 2022, the appellant lodged his submissions on costs. The appellant did "not object" to us dispensing with a hearing in relation to the respondent's application for costs: at [3].
The respondent lodged submissions in reply on 18 October 2022 (Reply Submissions).
The appellant lodged a 6-page submission on 26 August 2022 and a 54-page document on 7 October 2022 of which 22 pages comprised the narrative part of the submission. The respondent lodged a 5-page written submission with 79 pages of annexures on 21 September 2022 and a short submission in reply of 3 pages on 19 October 2022.
Since we refer to the specific grounds raised by the parties in their respective written submissions in our reasons that follow, we need not summarise the parties' submissions here in our reasons. However, before we consider the substantive aspects of the respondent's application for costs, it is necessary for us to deal with a matter raised by the appellant at the outset of his submissions lodged on 7 October 2022 at [7] to [12].

[3]

Possible Apprehension of Bias

The submission stated that by reference to the "last portion of the hearing recording" the appellant "asks the Tribunal to consider whether or not those comments of the Tribunal might be interpreted as bias because the Tribunal inadvertently discloses the likelihood of the outcome of the appeal and its openness to considering an application for costs": [8]. That part of the transcript of the hearing was set out at [11] of the appellant's submissions. The appellant submitted that the Appeal Panel "may have presided over the appeal, having already formed a preliminary view that it would receive an application for costs": [9]
The extract of the transcript set out at [11] of the appellant's submission is as follows: Appeal Panel: What we're proposing to do is reserved the appeal. Now we are mindful that there's this issue of costs. What we will do is, once we've made our orders, we will make provision for any, if there is I mean, I note the respondent has indicated that they will be seeking costs of the appeal, but if they want to press that, they can make that application formally, put on any submissions in that regard, I mean depending on the outcome of the appeal. Ms Webb you might say I'm happy to rely on the ones that I've already provided or you might want to put on something extra, and then, if necessary, we will deal with that separately. That's how we propose to deal with any costs application, but unless there's anything else we will conclude the appeal.
There are several matters raised by the appellant's submissions that for convenience, we will refer to and deal with as three identifiable issues.
The first issue is that the appellant does not request the Appeal Panel to recuse itself. It is unclear if that is an oversight or intentional. The submission is put as a request for the Appeal Panel to effectively ask itself whether the Appeal Panel's comments "might be interpreted as bias".
The second issue is that the part of the transcript relied upon is described as inadvertently disclosing the likelihood of the outcome of the appeal and the Appeal Panel's "openness" to an application for costs (presumably meaning an application by the respondent).
The third issue is that the appellant submits that the Appeal Panel "presided over the Appeal, having already formed the preliminary view that it would receive an application for costs (again, presumably a reference to an application by the respondent).
As to the first issue, there is no application for the Appeal Panel to recuse itself. We would have declined to do so in any event. Having self-reflected on the matter as requested by the appellant, we cannot discern any basis for inferring that there was anything in the transcript relied upon by the appellant that could be interpreted by the reasonably informed bystander as suggesting a prejudgment or a predetermination of the merits of the appeal, sufficient to create an apprehension of bias or to constitute actual bias.
Also, even though the transcript may have been obtained after the hearing of the appeal, the appellant's representative Telina Webb conducted the appeal and was present at the audio-visual hearing and must be presumed to have heard the comments now transcribed and relied upon by the appellant. The appellant's application (if it be that) or the appellant's submissions in relation to apprehension of bias comes too late, having been made after the Principal Decision has been delivered and after the respondent's submissions on costs were lodged.
The second issue in part overlaps with the third issue that is discussed below. We reject the appellant's submission that the transcript extract relied upon by him somehow inadvertently discloses the likelihood of the outcome of the appeal. To the contrary, the comments by the Appeal Panel were made in the context and full knowledge that there may be an issue with respect to costs raised by the respondent. Only the respondent sought its costs, so it was prudent to allow for orders in the Principal Decision, as foreshadowed, in the event that the appeal was unsuccessful. To have not done so would have required a relisting of the matter for the making of further directions similar to those made in the Principal Decision. In our view, it was both appropriate and entirely compatible with the overriding principles in s 36 of the NCAT Act by which the Tribunal and the parties are to conduct themselves for us to make provision for a tentative regime for the provision of written submissions dealing with costs in the event that the respondent was successful in its challenge to the appeal and where the appellant himself had not sought costs if he was successful on the appeal.
The third issue raises the notion of the Appeal Panel having a "preliminary view" that it would receive an application for costs from the respondent. There is nothing surprising, inappropriate or unusual in a judge or tribunal member expressing a preliminary view on any matters that are heard by a court or tribunal and before publishing its reasons. There are several reasons that explain why.
The first is that in accordance with the standard orders for an appeal to which we have referred above, the Appeal Panel is afforded the opportunity to read both parties' written submissions lodged before the date of the hearing.
Secondly, as referred to above, the respondent's written submissions expressly referred to an intention on its part to seeks costs of the appeal if the appellant's appeal was unsuccessful.
Thirdly, as stated above, the appellant provided written submissions addressing that matter of costs before the hearing. Clearly, the question of the respondent's costs was a live issue before the hearing. At no time had the appellant foreshadowed any application for his costs if he was successful on the appeal. That is not surprising. Only the respondent was legally represented on the appeal.

[4]

Principles Relating to Apprehension of Bias

The principles relating to an application for disqualification are well established.
The Tribunal is obliged to hear and determine a matter unless a reasonable apprehension of bias can be established: In Re J.R.L; Ex parte C.J.L [1986] HCA 39; (1986) 161 CLR 342 (Re JRL) at 352 per Mason J; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36].
The reasoning underlying this principle was explained by Mason J in Re JRL at 352: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
A conclusion of apprehended bias "is not to be reached lightly": CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [56]; also GetSwift Ltd v Webb [2021] FCAFC 26 at [28].
The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge (or in this case the Appeal Panel) might not bring an impartial mind to the resolution of the question to be decided: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner at [11].
A two-step process is involved. This was explained by the High Court in Ebner at [8]: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [110], the High Court held (omitting citations): In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the 'second step' in Ebner v Official Trustee in Bankruptcy) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson: Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. … Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
The decision of Gleeson JA in Reid v Commercial Club (Albury) Limited [2014] NSWCA 98 (with whom Emmett JA and Tobias AJA agreed) is also pertinent to the matters presently under consideration. His Honour held at [78]: It is necessary to keep in mind that claims of apprehension of bias are to be considered in the context of ordinary judicial practice. Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. Accordingly, the expression of tentative views, which reflect a certain tendency of mind of the judge, are not on that account alone to be taken to indicate prejudgment. Moreover, counsel is usually assisted by hearing the judges' tentative opinions on matters in issue and being given an opportunity to deal with them: Johnson v Johnson [2008] HCA 48; 201 CLR 488 at [13] (a case of alleged apprehension of bias) which referred to earlier comments in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 571 (a case where actual bias was alleged)."
In Wojciechowska v Commission of Police (No 2) [2021] NSWCATAP 311, the Appeal Panel stated at [24]: For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker must not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ.
In Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127 at [10], O'Callaghan J relevantly adopted the following principles, as set out by the NSW Court of Appeal in Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214 per Gleeson, Leeming and McCallum JJA at [4]-[7]: The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias. The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by the applicant, might reasonably consider that the respective members of the Court might not carry out their judicial functions as a member of the Court with an impartial and unprejudiced mind.
We are satisfied that a fair-minded lay person would not regard the closing comments referred to by the appellant in his submission on costs as demonstrating an inability on the part of the Appeal Panel to deal fairly, according to law, with the appellant's application for leave to appeal or our consideration of the grounds of appeal: or for that matter, the respondent's application for costs. The appellant has not identified any logical connection between the comments referred to and our refusal to grant the appellant leave to appeal.
The appellant did not expressly make an application for disqualification and we are mindful also, that it is our duty to determine matters which come before us and not to withdraw unless there are cogent reasons that require us to do so. We are not satisfied that there are sound reasons advanced by the appellant that would give rise to an apprehension of bias on the part of the fair-minded lay observer having regard to the matters discussed and the authorities to which we have referred above.
We now return to the substantive matters requiring our consideration in relation to the respondent's application for an order for costs in its favour.

[5]

Section 60 NCAT Act

The power to make a costs order in favour of a party is governed by the provisions of section 60 of the NCAT Act which 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. (5) In this section - costs include - (a) the costs of, or incidental to, proceedings in the Tribunal, and (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.
There is no dispute that s 60 of the NCAT Act applies. That is, if section 60 is relied upon, the onus is on the party seeking an order for costs to satisfy us that there are special circumstances warranting an award of costs in their favour.
Section 60(3) of the Act sets out in a non-exhaustive way what the Tribunal may have regard to in determining whether there are special circumstances: see s 60(3)(g). The discretion to award costs must be exercised judicially and having regard to the underlying principle in s 60(1) that parties to proceedings in the Tribunal, including on appeals, are ordinarily to bear their own costs.
The respondent submitted that there were "special circumstances" in this case warranting an order for costs in its favour because: 1. The appeal was without merit, "misconceived and lacking in substance" - see s 60(3)(e); 2. A number of claims made by the appellant had "no tenable basis in fact or law" - see s 60(3)(c); 3. The appeal was brought for improper purposes and was an abuse of process, and/or was "vexatious" - see s 60(3)(e).
For the reasons that we set out below, we disagree. For convenience, in these reasons, we refer to these three grounds that are relied upon by the respondent to constitute "special circumstances" as Grounds, 1, 2 and 3 respectively.

[6]

Special Circumstances

In Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], the Appeal Panel cited with approval the meaning of the expression "special circumstances" that had been given to the same expression in the former section 88 of the Administrative Decisions Tribunal Act 1997 (NSW) by the NSW Court of Appeal in Cripps v G & M Mawson [2006] NSWCA 84, per Santow JA at [60], Mason P and Brownie AJA agreeing. That is, special circumstances are "circumstances that are out of the ordinary" but the circumstances do not have to be "extraordinary or exceptional".
In eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48], the Appeal Panel said: 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.
Each situation is to be assessed on a case-by-case basis to see whether special circumstances exist so as to warrant the award of costs.
In Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 [14]-[16], the Appeal Panel stated in connection with the issue of "special circumstances": An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special. There are no scientific means by which the former can be ascertained. The evaluative process is necessarily one of impression informed by the particular provisions of section 60, which by sec 60(3)(f) incorporates also a consideration of section 36(3) of the Act.

[9]

Appeal was an abuse or process and/or vexatious

The respondent relied upon the findings of the Tribunal in McEwan v Port Stephens Council (No 2) [2022] NSWCATAD 308 (the costs decision of the primary decision under appeal) where the Tribunal found special circumstances and made an award of costs. The Tribunal stated at [64]: … the fact that the applicant has again sought to ventilate a series of grievances, allegations and accusations that were held to be irrelevant in relation to the determination of the Miscellaneous Application, is a matter that may warrant the exercise of thew discretion to make an award of costs.
The Tribunal did not find the conduct of the appellant to which it referred at [64] to be an abuse of process or vexatious; rather, it was described as "irrelevant" to the determination of the Miscellaneous Application. The decision of the Tribunal below on costs does not assist us and is irrelevant. The matter before us was an appeal from that determination of the Miscellaneous Application. We are not concerned with the characterisation of the appellant's conduct by the Tribunal in bringing the Miscellaneous Application but whether the Tribunal erred in dismissing it.
Although abuse of process can take many forms, a party alleging that a proceeding (in this case the present appeal) "had been brought, or was being prosecuted, as an abuse of process, had the onus to show that the predominant purpose of the other party in using the legal process 'has been one other than for which it was designed'": (emphasis in the original) Ashby v Commonwealth (No 4) [2012] FCA 1411 at [4] citing Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ.
We are not satisfied that the appeal was predominantly used as an abuse of the Tribunal's appellate processes or that the conduct of the appellant in seeking leave to appeal was vexatious in the sense that it was part of a pattern of misconduct by the appellant intended solely to annoy or cause cost or inconvenience to the respondent.

McEwan v Port Stephens Council

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Judgment (13 paragraphs)

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