Metro Windows Pty Ltd & Ors v Commissioner of Fair Trading

Supreme Court of Victoria|2013-08-26|Before: Campbell JA

Introduction 1These reasons for decision concern a costs application made by the Applicants. It followed their successful review of a decision made by the Commissioner of Fair Trading in June 2008 to take disciplinary action against Metro Windows Pty Ltd (a fine), Ms Cruz, as an officer of a licensed corporation, (a reprimand), and Mr Preston, as a licensed supervisor (a reprimand), under the Home Building Act 1989 (the HBA). 2Their application for review had a long and complex history. The Commissioner initially disputed the Tribunal's jurisdiction to review the decision to reprimand Ms Cruz and Mr Preston under the HBA. I determined that issue in favour of the Applicants, by concluding, in an on the papers decision made in March 2009 in Metro Windows Pty Ltd & Ors v Commissioner of Fair Trading [2009] NSWADT 60, that the Tribunal did have jurisdiction to review a decision to reprimand. The Applicants represented themselves, with Ms Cruz representing the company of which she is a director. 3The Commissioner subsequently successfully appealed that decision to an Appeal Panel of the Tribunal. In Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51, the Appeal Panel allowed the appeal and dismissed the review applications made by Ms Cruz and Mr Preston for want of jurisdiction. It found that the Tribunal did not jurisdiction to review a decision to reprimand a licence holder. The Appeal Panel made no order as to costs. Once again the applicants represented themselves in this appeal. 4Mr Preston then appealed the Appeal Panel decision to the Court of Appeal. In a lengthy decision the Court of Appeal found that the Tribunal did have jurisdiction to review a decision to reprimand a licence holder; Preston v Commissioner for Fair Trading [2011] NSWCA 40. The decision of the Appeal Panel was set aside. The matter returned to the Tribunal for further hearing as a result. Mr Preston represented himself in that appeal. Ms Cruz filed a submitting appearance. The Court of Appeal ordered that the Commissioner pay Mr Preston - ...the amount of out-of-pocket expenses, of a type that would have been recoverable as disbursements if the Appellant had been legally represented, that the Appellant has actually and reasonably incurred concerning the present appeal. 5Campbell JA explained why the costs were limited to out of pocket expenses at [183-185] - It has been held, under a previous statutory regime authorising the making of costs orders, that a litigant in person who is not a lawyer is not entitled to receive an order for costs to compensate him for time spent in preparing and conducting his case: Cachia v Hanes(1994) 179 CLR 403. However a self-represented litigant who is not a lawyer can recover an indemnity for at least some out-of-pocket expenses actually and reasonably incurred: Secretary, Department of Foreign Affairs v Boswell (No 2)(1992) 39 FCR 288; Lawrence v Nikolaidis[2003] NSWCA 129; (2003) 57 NSWLR 355 at [37]. It appears from Cachia v Hanesat 417 that those out-of-pocket expenses were ones of the type which would have been recoverable as disbursements if the Appellant had been legally represented. Thus such expenses include filing fees: Deva v University of Western Sydney[ 2008] NSWCA 137 at [82]. Though there are some English cases, and some previous Australian authority (including Boswell ) that say that under the heading of out of pocket expenses a litigant in person can get compensation for the opportunity cost of spending time on his litigation rather than on other paying work, since Cachia v Hanes those cases have not been followed in Australia: Lawrence v Nikolaidis at [37]. The power of this Court to make orders for costs is now governed by the Civil Procedure Act 2005and the UCP Rules . Now, section 3 Civil Procedure Act defines "costs" in relation to proceedings, as meaning "costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration . " Section 98(1) Civil Procedure Act provides: "(1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid ..." There does not appear to be any relevant difference between the present statutory framework for costs orders, and the provisions that the High Court referred to in Cachia v Hanes. Thus the costs order should be the sort of order that the cases cited in [183] held was permissible. 6On the return of the matter to the Tribunal I then heard the substantive application over three days. I delivered a decision on 8 November 2012 in which the original decisions made by the Commissioner were set aside: Metro Windows Pty Ltd & Ors v Commissioner of Fair Trading (No 2) [2012] NSWADT 232. As a consequence the Applicants were entirely successful in their application to review. At [105 -107] I addressed the issue of costs - 105. I note that applicants have indicated that they will be seeking an order for costs. 106. Costs in the Tribunal do not necessarily go with the event and are governed by s 88 of the Administrative Decisions Tribunal Act 1997. The factors that the Tribunal must take into account when considering an application for costs are set out in that section. As the applicants have not been legally represented the guidance set out in the Tribunal's Costs Guideline is applicable to any application for costs made by them. 107. I will direct that any application for costs made by the applicants be made within 28 days of these reasons and supported by submissions (not to exceed 4000 words). Within a further 28 days the Respondent shall file and serve submissions in reply (not to exceed 4000 words). I will then determine the issue of costs on the papers. 7The Costs: Guideline in addition to explaining the Tribunal's power to award costs and the applicable procedures contains the following advice for self represented parties - 6. Self Represented Party The Tribunal has ruled that a self represented party cannot apply for costs for loss of income or general inconvenience that the party has incurred in bringing or defending a case. However, a self-represented party may apply for an order that covers their reasonable out of pocket expenses ('disbursements') such as photocopying and travel expenses. 8The Applicants did apply for costs. They sought, and were granted, an extension of time to do so. The costs orders sought by the Applicants are complicated. They sought - 1. The Respondent pays all of the Applicants' costs, on an indemnity basis, as determined by the Tribunal, from about 06 December 2006 without any exceptions until all matters, including the present cost matter and those incidental to it, are finalised to the Applicants' satisfaction; costs includes costs of or incidental to proceedings in the Tribunal, and also on an indemnity basis the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 2. For the purpose of these orders, "costs" encompass: a) the costs of or incidental to proceedings in the Tribunal including the jurisdictional issue at first instance and on appeal, the merits review, and the present cost application in the Tribunal; the right to a merit review gained by the appeal on the jurisdictional issue to the Court of Appeal and the proceedings incidental to it such as the recovery of these costs; b) the cost of or incidental to proceedings giving rise to the application, as well as the cost of or incidental to the application including attempts to resolve the matter with Alldis & Cox and or the Owners Corporation and or the Respondent; the Consumer Trader and Tenancy Tribunal (the "CTTT") matter associated with the Respondent's Rectification Order No 4442 and or the Christy report and or otherwise; the disciplinary matter incidental to the Rectification Order No 4442 and or the Christy report and or CTTT matter; the internal review; (See eg., Pathway Investments Pty Ltd & Anor v National Australia Bank Limited [2012] VSC 97 (21 March 2012); McGlinn v Waltham Contractors [2005] EWHC 1419; [2005] 3 All ER 1126); and c) any other costs that the Applicants may consider appropriate to include in the submission for the Tribunal's determination. 3. The Tribunal determines the costs in two stages by the Tribunal. Stage 1: The Tribunal determines in conjunction with this cost application, if this cost application is successful: a) the costs to be paid to the Second Applicant for the fees of the Court of Appeal in relation to the jurisdiction issue. The Second Applicant is seeking an order that the Respondent pays an amount of $5,089.50 within 14 days of the Tribunal's decision, this amount excludes any interest that may be charged by the Court of Appeal when the postponed fees are paid, any interest payable to the Court of Appeal will be included in Stage 2. b) the costs to be paid to the First Applicant for the fees of the Tribunal to date. The First Applicant is seeking an order that the Respondent pays amounts of $866.10 within 14 days of the Tribunal's decision; this amount excludes interest, interest will be included in Stage 2 at a rate of 25% per annum which is the normal credit card interest, or at a rate that the Tribunal may consider appropriate. c) the costs to be paid to the Third Applicant (named by Koffels in Tax Invoices) for the services provided by Koffels Solicitors & Barristers in relation to the Tribunal proceedings; Koffels Solicitors & Barristers costs were the subject of an application for cost assessment in the Supreme Court in 2009. The Third Applicant is seeking an order that the Respondent pays an amount of $12,455.05 within 14 days of the Tribunal's decision; this amount excludes interest, interest will be included in Stage 2 at a rate of 25% per annum which is the normal credit card interest, or at a rate that the Tribunal may consider appropriate. Stage 2: The Tribunal determines the remaining costs to be paid to the Applicants on the basis of evidence to be filed by the Applicants in the Tribunal within 60 days of the date of the Tribunal's decision, if this cost application is successful. 9The Applicants submissions in support of the costs application were 10,000 words long: two and a half times the word limit set for those submissions. The Commissioner has filed submissions in response that comply with the word limit.

The Tribunal's power to award costs 10Section 88 of the Administrative Decisions Tribunal Act 1997 (the ADTA) provides - (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 11Given the breadth of costs orders sought by the Applicant it is necessary to make a number of observations with respect to the Tribunal's power under s 88. 12First, the general rule is that each part should bear their own costs in the proceedings, unless fairness requires that a costs order be made. In considering whether it is fair to make such an order the Tribunal is to have regard to the factors in s 88(1A). 13Secondly, the Tribunal's power is to make costs orders in "the proceedings" before it. This does not extend to the making of costs orders relating to appeals from those proceedings. The costs of appeals are matters to be determined on appeal, and not on remittal to the Tribunal. In the present case the Court of Appeal considered the issue of costs and made appropriate costs orders. 14Thirdly, the Tribunal's power to order costs extends to "the costs of or incidental to the proceedings" whether the costs are ordered by the Tribunal at first instance or appeal level. 15In my judgment the Applicants, in their application for costs, have misconceived what is meant by "costs incidental to the proceedings". It can be seen that they have included as incidental costs:

The costs of attempting to resolve the home building dispute between Metro Windows and an Owners Corporation that gave rise to the disciplinary action, before proceedings were issued in the CTTT;
The costs of proceedings in the Home Building Division of the CTTT between Metro Windows and the Owners Corporation; and.
Their costs with respect to a rectification order issued by the Commissioner. 16In seeking to recover those costs as incidental costs in this proceeding, the Applicants rely on the decision in Pathway Investments Pty Ltd & Anor v National Australia Bank Limited [2012] VSC 97. That case concerned an application for security for costs by the National Bank, which included an amount for pre-commencement costs. They had been incurred before the litigation had commenced against the bank. The bank had engaged solicitors, who had commenced preparing for the litigation, following announcements by the solicitors for the Plaintiffs that they would be commencement a class action against the bank for a defined class of shareholders. Davies J made the point, at [3], that - "Legal costs incurred for work undertaken in reasonable anticipation of litigation can be allowable although the simple fact that the costs were incurred does not mean that they will be allowable on taxation. Such costs must be shown to have been "necessary for the proper attainment of justice"and the satisfaction of the test requires some real relationship between the work done and the subject matter of the litigation, once commenced." Davies J went on to observe a decision to order security for such costs is a separate question to whether they should be allowed on taxation. 17In my opinion the decision in Pathway Investments does not assist the Applicants. Their dispute with the owners' corporation and the circumstances surrounding the enforcement order, while they formed part of the factual background to the merits review before the Tribunal, were not incurred in reasonable anticipation of the review proceedings, which were not in contemplation at the time. The Applicants costs relating to those matters are separate and distinct form the costs of these proceedings. 18On the other hand, I accept that costs of seeking an internal review (a request for which is required for the Tribunal to have jurisdiction - see s 55 ADTA) may be a cost incidental to review proceedings before the Tribunal: see Comcare v Con Labathas [1995] FCA 170. 19Fourthly, the Applicants are seeking costs on an indemnity basis. As Campbell JA explained in the Court of Appeal and as the Tribunal's Costs: Guideline seeks to make clear, the only "costs" that self-represented applicants are entitled to recover are their out of pocket expenses. The question of indemnity costs does not arise when they are self-represented. 20Fifthly, the Applicants have not provided details of their out of pocket expenses, instead seeking - by default - to implement a two stage process for the determination of their costs, which I did not authorise or approve.

Consideration 21Before turning to the elements of s 88(1A) that the Applicants rely on to justify a costs order in their favour, I think it pertinent to make a number of general observations concerning the nature of the proceedings and how they have been conducted, at first instance, level in the Tribunal. These are that:

The jurisdictional issues in this matter were novel.
The issues considered in the merits appeal, while requiring a detailed consideration of the relevant legislation and case law, were not novel, new or unusual.
The same legal officer, Mr Maynard, has always represented the Respondent. To my observation he has conducted the case on behalf of the Respondent fairly and properly, has paid due regard to the fact that the Applicants were self-represented, and has conducted the Respondent's case as a model litigant should.
The Applicants have been self -represented, except at the commencement of the proceedings.
The fact that the Applicants have been self-represented has protracted the time taken for the matter to be brought to conclusion. It has required twice that hearing time that I consider would have been required had the Applicants been legally represented.
The Applicants have filed extensive, lengthy and at times prolix submissions in an effort to comprehensively cover all relevant matters, which submission reflect their unfamiliarity with merits review litigation. Their prosecution of their review application, while successful, has in many ways been over the top and disproportionate.
The Applicants have been granted repeated indulgences and extensions of time in order to present their case. 22The Applicants submissions on costs are long, confused, meandering and repetitive. They flit from topic to topic, and contain a series of allegations of improper conduct and intent on the Respondent's part. In my opinion these allegations are simply not justified in the circumstance, or demonstrated by the evidence they rely on. The Applicants' starting proposition appears to be that the Commissioner has acted in bad faith throughout, and its conduct of the proceedings needs to be viewed in that light. That view is not consistent with my observations. 23I have identified the central threads of the Applicants' submissions and shall briefly consider each one of them. They are that:
The Respondents case was untenable.
The Respondent failed to heed warnings that its case was untenable.
That the Respondents case was based on allegations of incomplete and defective works that it knew to be wrong.
That the Respondent's conduct was vexatious.
That the Respondent did not act as a model litigant should, by failing act promptly, causing delays, and by taking and then perusing the disciplinary action against them.
The proceedings were complex and should be viewed as a test case in which they were entirely successful.
That the Respondent has refused reasonable offers to settle the proceedings.

Was the Respondent's case untenable? 24I do not accept that the Respondent's case was untenable. While the result was that the Respondent's decisions with respect to each of the Applicants were set aside, the positions adopted by the Respondent were not unarguable or always destined to fail. That the Commissioner's position with respect to the Tribunal's jurisdiction to review a reprimand was arguable is illustrated by the fact that an Appeal Panel of this Tribunal agreed with its interpretation of the legislation. 25With respect to the substantive aspects of the review, a reading of decision (Metro Windows Pty Ltd & Ors v Commissioner of Fair Trading (No 2) [2012] NSWADT 232) illustrates that there were contending and viable views of fact and law. The outcome required detailed consideration and evaluation of those views, with the outcome, in my view, being by no means certain. 26As a consequence I do not accept that the Respondent's case was untenable.

Failing to heed warnings that the case was untenable 27The Respondents case was not untenable. The Applicants did threaten to seek costs and damages should the matter proceed, and suggested that they had "strong grounds" for expecting to succeed with the jurisdictional issue.

That the Respondent knew its allegation regarding incomplete and defective works were wrong 28This submission is predicated on an analysis of the evidence of Mr Christy, a Home Building Inspector. In the light of other evidence concerning information held by Fair Trading, the Applicants argue Mr Christy had a far greater knowledge of the contract issues in this case, than he admitted in evidence. Having imputed that knowledge to Mr Christy, the Applicants assert that Respondent "attempted to deceive" others with respect to that knowledge, and acted "vexatiously". 29I made no findings adverse to Mr Christy in my decision in this matter. I accepted his evidence as to extent of his knowledge of any contractual dispute between Metro Windows and the Owners Corporation. I see no reason to depart from that conclusion. It is not appropriate to revisit the substance of the substantive application when considering costs.

That the Respondent conducted the proceeding vexatiously 30The Applicants argue that the Respondent persisted with an untenable case "and raised the jurisdictional issue shortly before the trial hearing scheduled for 28 November 2008 to delay and avoid the merits review; which further highlighted the vexations nature" of the Respondent's case. 31In my opinion this intemperate submission is without justification. The Respondent's position was not untenable. There is no basis for suggesting that the appeal was made for the purpose of delaying a hearing. The Respondent, reasonably in the circumstances, wished to challenge my ruling on jurisdiction.

Not acting a model litigant 32The Applicants submission with respect to this is that the Respondent failed to act as a model litigant by failing to act promptly, causing delays, and by taking and then perusing the disciplinary action against them. 33As the member responsible for the hearing and management of this case none of the conduct I observed in the Respondent's management and presentation of its case, caused me to have any doubt of the fairness or propriety with which the Respondent's case was conducted. The Respondent was represented by Mr Maynard who was at all times, to my observation, sought to deal fairly with the self-represented Applicants. I agree with his submission that there were no extensive delays caused by the Respondent. Indeed, he fairly and repeatedly agreed to significant extensions of time sought by the Applicants. These led, in part, to the proceedings being protracted. 34The Applicants' submission go so far as to suggest that, by the very act of making a disciplinary decision against them, the Respondent sought to use its power and financial superiority as a tool against them, in breach of the model litigant policy. By defending its disciplinary decision, the Applicants argue the Respondent has compounded that breach. I do not accept this. None of the submissions made by the Applicants in support of this argument, objectively viewed, justify such a conclusion. It is reliant on the assertions that the Respondent's case was untenable and vexatious.

The complexity of the proceedings 35The Applicants argue that this was a test case run by the Respondent involving complex issues of law and fact, and that as a consequence, because they were successful, they should be entitled to their costs. 36I accept (as did the Court of Appeal) that the jurisdictional issues did raise a test case. That is one of the reasons why the Curt of Appeal made a cost order in favour of the Applicants. That is not a matter for this Tribunal to revisit. 37The real issue is whether the substantive review application was a test case. In my view it was not. It involved relatively common issues going to the interpretation of building contracts, and a consideration of how the law relating to deposits, with respect to residential building works, applied, to Metro Window's operations. The operation of s 8 of the HBA is a matter that has been the subject of considerable litigation.

Refusing reasonable settlement offers 38The Applicants argue that they should be entitled to costs, because the Respondent rejected a reasonable offer to settle the proceeding. This offer was in addition to prior warnings by the Applicants that they would be seeking costs and damages. The offer was made on 10 March 2012. It was open for acceptance until 17 April 2013. it was in the form of a letter headed, "Without prejudice except as to costs," and was made with respect to the proceedings. It was put as a Calderbank offer: Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586. 39 It required the following - - That the Respondent agrees to the withdrawal of the Owners Corporation SP19306's Home Building Complaint No 3413835; - That the Respondent withdraws the Rectification Order No 4442, A4482, A4483 and A4484; - That the Respondent withdraws the Building Investigation Report Christy Report Reference 3413835; - That the Respondent withdraws any other document and or action or otherwise that may have been generated in relation to the Works; - That the Respondent take no further investigative action on the Owners Corporation SP19306 Home Building Complaint No 3413835 or on a fresh complaint in relation to the Works which may be included in but not limited to the withdrawn Home Building Complaint No 3413835 of the Owners Corporation SP19306; That the Respondent withdraws the penalties issued by the Respondent against Metro Windows Pty Ltd and or Stephen Preston and or Adriana Cruz; - That the Respondent withdraws any proceedings in relation to the Works that may affect or have the potential to affect Metro Windows Pty Ltd and or Stephen Preston and or Adriana Cruz, now or at any time in the future; - That the Respondent discontinues any action prejudicial to Metro Windows Pty Ltd and or Stephen Preston and or Adriana Cruz; That the Respondent removes any entries and or records and or reference made in relation to Metro Windows Pty Ltd and or Stephen Preston and or Adriana Cruz, and the Works some of which works may be related to the withdrawn Home Building Complaint No 3413835 of the Owners Corporation SP19306; and matters are removed from the Respondent's reports, registers or otherwise to ensure no issues or possible issues remaining for Metro Windows Pty Ltd and or Stephen Preston and or Adriana Cruz, now or at any time in the future; - That the Respondent returns original and copies of the documents provided by Metro Windows Pty Ltd and or Stephen Preston and or Adriana Cruz; - That the Respondent supports a request or application or otherwise for the ADT to withdraw from public access including websites or alternatively the anonymity of the Applicants' identity in decisions published in ADT proceedings. - That the Respondent pays its own costs in relation to the ADT and any other action or proceedings or otherwise in relation to the Works and any other matter that may be related to the withdrawn Home Building Complaint No 3413835 of the Owners Corporation SP19306 or otherwise; and - That if settlement with the Respondent is reached to the satisfaction of Metro Windows Pty Ltd and Adriana Cruz and inclusive of the matters in this offer that the application of Metro Windows Pty Ltd and Adriana Cruz in the ADT be discontinued by Metro Windows Pty Ltd and Adriana Cruz. Metro Windows Pty Ltd and Adriana Cruz seek a general "release" for Metro Windows Pty Ltd, Stephen Preston and Adriana Cruz in respect of the Works; any proceedings or actions or otherwise in respect of the Works, the withdrawn Home Building Complaint No 3413835 of the Owners Corporation SP19306, or otherwise. 40It can be seen that this offer proposed a resolution that was well beyond any order the Tribunal could possibly make, no matter how successful the Applicants' case. The Respondent submitted that it required "impossible action." I agree with the assessment. In my view it cannot be argued that the offer was a reasonable one, or that the Respondent ought reasonably to have accepted the offer contained in the letter at the time it was made. Its conduct in not accepting the offer was reasonable.

Conclusion 41In my opinion this is a case in which the general rule that each party bear their own costs must prevail. While the Applicants have been successful in their review application, I do not accept their characterizations of the Respondent's conduct of its case as untenable and vexatious. I consider that the Respondent has conducted its case before me fairly, without sharp practice, and in accordance with the Model Litigant Policy. 42While I understand that the Applicants feel that the Respondent unfairly targeted them, and that their ultimate success in these proceedings should result in an order for costs in their favour, I do not agree that that would be an appropriate decision in the circumstances of this case. Having regard to the factors set out in s 88(1A) of the Administrative Decisions Tribunal Act 1997 I am not persuaded that it would be fair to make an order for costs in the Applicants' favour. 43Rather. I think it preferable to decide that there should be no order as to costs, and dismiss the costs application accordingly. This means that each party will bear their own costs in accordance with the general rule in s 88(1). 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: 26 August 2013

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