Military Tours Australia Pty Ltd v Samuels

Relevant provision

1. The relevant provision of the Act dealing with costs is s 60. That section relevantly provides: (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.

Submissions

1. Mr and Mrs Samuels submits that the following matters are circumstances warranting an award of costs: 1. The conduct of Military Tours in the proceedings below. Apparently, Military Tours failed to appear at the first directions hearing and at the hearing itself; orders were made in the absence of Military Tours. Then Military Tours failed to comply with the order to pay the Samuels $1,190.00, and the Samuels had to proceed to enforce the order through a garnishee order. 2. The Samuels retained Hardings Solicitors to advise and represent them in the appeal. They do not seek reimbursement for any other costs or disbursements but submit that they should be reimbursed for the costs of obtaining legal advice. That cost is $1,320.00 (see invoice 150328 dated 31 July 2015).
2. Mr and Mrs Samuels also submit that Military Tours "obviously realised the grounds for the appeal were not good".
3. Military Tours submits that its appeal, "on legal advice, would not proceed, in spite of the matter being winnable, as the costs, and time for legal representation, was not viable as far as the monies involved". In the circumstances, Military Tours objects to paying Mr and Mrs Samuels legal costs.

Principles

1. In Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 the Appeal Panel stated at [43]: Section 60 has been considered in many recent decisions: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48; and Rose Nettis Pty Ltd v Three Tall Trees Pty Ltd [2015] NSWCATAP 51. As the Appeal Panel noted in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]: The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]- [31]. From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.
2. Each case depends upon on its own particular facts: Gizah Pty Limited v AXA Trustees Limited (No. 2) [2001] NSWADT 164, and will depend on the circumstances of the individual case: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152.

Consideration

1. In this matter Mr and Mrs Samuels have not made any submissions directed to "special circumstances". In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, in the context of determining whether or not the appellant had identified an "error of law" giving rise to an appeal as of right, the Appeal Panel stated at [12] that, in circumstances where an appellant is not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. By parity of reasoning, I consider it appropriate to examine the conduct of the appeal generally to determine whether or not "special circumstances" may exist, so as to warrant an award of costs.
2. In my opinion, there is no substance in the first ground relied on by the Samuels as warranting an award of costs. The conduct of the parties in other proceedings maybe a reason for seeking costs in those proceedings. While s 60(3)(g) allows the Tribunal to take into account any circumstance what it considers relevant, I do not consider that the failure of Military Tours to appear below, and where the Samuels were successful below, constitutes "special circumstances" as warranting an award of costs on the appeal.
3. The second ground relied is that the Samuels have incurred legal costs in obtaining advice. In appeal proceedings, as in other proceedings in the Tribunal (except where there is an explicit exception, such as rule 38 of the Civil and Administrative Tribunal Rules [1] ), the ordinary rule is that each party to proceedings in the Tribunal is to pay the party's own costs: s 60(1).
4. I do not accept the Samuels' submission that the appeal was withdrawn because the appellant "obviously" realised that the grounds of appeal were "not good". On the contrary, given the decision of the Tribunal in a decision of the Tribunal in proceedings GEN 15/15619, where the Tribunal held that it did not have jurisdiction to hear the proceedings against Military Tours, it would appear that Military Tours had an arguable ground of appeal. There is force in their submission that, given the amount involved, (that is $1,190.00), it was simply not worth its while to pursue the appeal.
5. The effect of the notice of withdrawal was to avoid further expenditure or wasted resources of either party. In circumstances where it would appear that, apart from obtaining advice, neither party took any further steps in the proceedings, and the Samuels themselves did not comply with the direction of the Tribunal to file a Reply to the Notice of Appeal, I am not satisfied that the Samuels have established "special circumstances" as warranting an award of costs.

Conclusion

1. For the forgoing reasons Mr and Mrs Samuels' application for costs is dismissed.

Endnote

1. Rule 38 of the Civil and Administrative Tribunal Rules 2014 relevantly provides that despite s 60 of the Act, the Tribunal may award costs in proceedings in Consumer and Commercial Division of the Tribunal, even in the absence of special circumstances warranting such an award, if the amount claimed or in dispute in the proceedings is more than $30,000. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2015