McEwan v Port Stephens Council

Possible Apprehension of Bias

1. 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]
2. 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.
3. There are several matters raised by the appellant's submissions that for convenience, we will refer to and deal with as three identifiable issues.
4. 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".
5. 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).
6. 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.

Principles Relating to Apprehension of Bias

1. The principles relating to an application for disqualification are well established.
2. 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].
3. 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.
4. 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].
5. 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].
6. 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.
7. 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.
8. 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)."
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.

Section 60 NCAT Act

1. 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.
2. 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.
3. 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.
4. 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).
5. 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.

Special Circumstances

1. 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".
2. 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.
3. 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.
4. 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.

Appeal was without merit and misconceived

1. The respondent relies on the findings in the Principal Decision that the grounds of appeal had "little prospect of success" (at [25]), "lack merit" and "do not involve issues of principle or public importance" (at [87]).
2. In the particular circumstances of this appeal, we are not satisfied that these findings constitute "special circumstances" under s 60 of the NCAT Act. They are some of the ordinary filters that an Appeal Panel is to have regard in determining whether to allow an appellant leave to appeal, particularly where the appeal does not raise any question of law. If a self-represented party or a party represented by a non-lawyer misconceives a ground of appeal as a question of law or misconstrues the proper construction of a statutory provision, those matters do not of themselves, or in this case in particular, constitute "special circumstances". Neither with respect, as the respondent submitted, does the application by the appellant to seek to adduce new evidence in the appeal, amount to "special circumstances".
3. In ACT Builders v Haridemos (No 2) [2016] NSWCATAP 118 at [41], the Appeal Panel noted that the mere fact a party was unsuccessful in their appeal does not of itself give rise to special circumstances warranting an order for costs in favour of the other party.
4. A costs order is primarily to compensate a successful party and not punish an unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 per McHugh J at [67]. The appellant relies on that principle in submitting that the respondent's application for costs is driven by punitive motives. We make no finding about that. However, we are satisfied that the respondent has not discharged its onus to establish special circumstances on the basis that the appeal was without merit, misconceived or lacking in substance.

Appeal had no tenable basis in fact or law.

1. The second ground relied upon by the respondent was that the appeal had no tenable basis in fact or law.
2. In Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135, the Appeal ` Panel stated at [44]: The expression "no tenable basis in fact or law" relates to the common law tests developed and applied in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. For a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed: General Steel at 130. "Manifestly groundless" or "clearly untenable" are equivalent expressions.
3. We did not find in the Principal Decision that the appeal was clearly untenable or manifestly groundless or hopeless. In the context to which we have referred above in determining whether to grant leave to appeal, we described the appeal as having "little prospects of success" and lacking in merit: [25]; [87]. These were not findings in relation to the substance of the appeal but for the limited and express purpose of exercising our discretion on the question of whether to grant the appellant leave to appeal.
4. We are not satisfied for the purposes of the respondent's application for costs and we made no finding in our Principal Decision that the appeal was so untenable in fact or law so as to constitute special circumstances within the meaning of s 60 of the NCAT Act.

Appeal was an abuse or process and/or vexatious

1. 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.
2. 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.
3. 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.
4. 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.

Conclusion on the respondent's application for costs

1. We are not satisfied that there are special circumstances warranting a departure from the usual presumption in s 60(1) of the NCAT Act that each party pay its own costs of proceedings.
2. Therefore, we need not deal with the respondent's submission (at [34]) that it be entitled to indemnity costs if we find that the appeal was brought for an improper purpose and/or was vexatious, relying on the decision of the Appeal Panel in Asia Invest Enterprises Pty Ltd v Bircan (No 2) [2019] NSWCATAP 232 at [113]. Neither do we need to consider the respondent's request for the making of a fixed sum cost order.
3. Accordingly, we make no orders as to costs with the intention being that each party is to pay its own costs of the appeal.

Orders

1. We make the following orders: 1. A hearing on costs is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The application for costs is dismissed.

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

Amendments 13 December 2022 - Coversheet - MNC, for Decision under Appeal, corrected. Coversheet - File number, for Decision under Appeal, corrected. 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: 13 December 2022