Mitra v Chief Commissioner of State Revenue

(1) $4,200 related to his own costs of preparing for and attending the hearing, calculated as follows:

(a) Preparation time: $3,500 (35 hours @ $100/hour);

(b) Attendance at hearing: $700 (7 hours @ $100/hour);

(2) $174 related to other costs, comprising:

(a) Filing costs: $124; and

(b) Application for a sound recording: $50.

1. The Applicant submits that the Tribunal should make an award of costs in his favour, having regard to (inter alia) the following matters which he alleges comprise "special circumstances":

(1) He made a genuine Calderbank offer that was unreasonably rejected by the Respondent;

(2) The Respondent failed to engage in any settlement discussions or negotiations;

(3) There was repeated procedural non-compliance by the Respondent, and conduct contrary to the model litigant obligations;

(4) The Respondent's continued opposition of his application to the Tribunal was unreasonable and unfounded;

(5) The Respondent made misleading assertions during the course of proceedings, including false claims regarding the service of evidence; and

(6) The Respondent should not have rejected the Applicant's offers as to costs.

1. Under s 60 of the NCAT Act, the usual rule is that each party bears its own costs. However, a costs order can only be made if "special circumstances" are established to the satisfaction of the Tribunal. As stated in s 60(2):

(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.

1. "Costs" is defined in s 60(5) of the NCAT Act to include the costs of, or incidental to, proceedings in the Tribunal.
2. The special circumstances specified in s 60(2) of the NCAT Act are circumstances that are out of the ordinary and do not have to be extraordinary or exceptional: see Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 ("Youssef") at [108], Cripps and Anor v G & M Dawson Pty Ltd and Anor; G & M Dawson Pty Ltd and Anor v Cripps and Anor [2006] NSWCA 81 at [60].
3. In determining whether there are special circumstances warranting an award of costs, s 60(3) says the Tribunal may have regard to the following matters:

(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.

1. The onus to satisfy the Tribunal that there are special circumstances warranting an award of costs lies with the applicant for the costs order: Styles v Wollondilly Shire Council [2017] NSWCATAP 108.
2. Merely because one or more s 60(3) criteria are satisfied does not necessarily mean special circumstances exist to justify a departure from the general rule, given the following observations of the Appeal Panel in The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [11]-[13]:

"However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out".

Even if satisfied that there are special circumstances, the Appeal Panel must further be satisfied that they are circumstances "warranting an award of costs" - Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]; Youssef at [108].

The exercise of the discretion requires the Tribunal "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalafv Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35].

1. In Youssef the Appeal Panel stated, at [107]:

"The general rule that parties should bear their own costs is designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable: Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41]. It is accepted that where a party is unsuccessful in the party's application before the Tribunal, this alone will not amount to special circumstances in favour of the successful party."

The threshold issue - abrogation of the Chorley principle

1. The Applicant submits that he is a solicitor and, as such, the Tribunal is empowered to award professional costs in accordance with long-established authority - most recently affirmed by the High Court in Birketu Pty Ltd v Atanaskovic [2025] 421 ALR 256 ("Birketu").
2. The Respondent submits that the personal preparation and attendance costs totalling $4,200 are not capable of being the subject of a costs order, citing the High Court decision in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 ("Bell Lawyers").
3. I agree The High Court in Bell Lawyers has established that a party acting for themselves has no claim to costs for and the exception to that rule in the case of London Scottish Benefit Society v Chorley [1884] UKLawRpKQB 115; (1884) 13 QBD 872 (the "Chorley exception" - which held that a party who is a solicitor can recover his professional fees for acting for himself in litigation) did not apply in Australia.
4. Birketu does not, as the Applicant suggests, stand for the proposition that the Chorley exception applies to allow him to recover costs for his time as claimed in his application. Critical to that decision was the separate legal personality of the incorporated legal practice and a distinction was drawn between solicitors who act in litigation for themselves and unincorporated law firms who are represented in litigation by their employed solicitors. The Applicant here is in the former position. The High Court clearly stated in Birketu at [25] that a self-represented litigant cannot obtain recompense for their own legal work. As stated by the Respondent in its submissions:

"The Applicant is employed as a legal practitioner, but he did not bring this application in his capacity as a lawyer, was not appearing in that capacity nor was he acting as an in-house lawyer on behalf of his employer, he was appearing in his personal capacity."

1. I find that the Applicant was acting for himself. Accordingly, the Chorley exception does not apply. The Applicant is unable to make the claim for costs in respect of the preparation and appearance totalling $4,200 (by his calculation).

1. I have reviewed the facts presented by the parties, as set out in their submissions.
2. I find that there are no special circumstances in respect of any matters raised by the Applicant in his submissions. By reference to some of the particular matters raised:

(1) I do not accept the Applicant's submissions at [8] that the Respondent's case was, "at best, significantly weaker than the Applicant's case, or at worst, fundamentally flawed and destined to fail from the outset". In this case, there was no clear authority or binding precedent that mandated a finding in favour of the Applicant. The findings of the Tribunal were made on the balance of probabilities in circumstances where the evidence of the Applicant (which included additional evidence presented orally by the Applicant at the hearing) was weighed against the evidence presented by the Respondent. In those circumstances, I do not find that the Respondent's conduct or approach is within the circumstances outlined in s 60(3)(c) or (e) of the NCAT Act;

(2) It is not unprecedented, in my experience, for the Respondent to seek and rely upon subpoenas such as Opal card transactions and Uber trips which were akin to a "fishing expedition";

(3) The Respondent's position and approach (including in respect of offers of settlement noted below) was neither unreasonable, obstructive nor in any other sense unduly detrimental to the Applicant. Nor, in my view, did it lead to any unreasonable delay;

(4) The Tribunal is not a court (where costs follow the event) and the rejection of a Calderbank offer does not itself give rise to "special circumstances" for the purpose of s 60 of the NCAT Act; see Jubian v Clark (No 2); Clark v Jubian (No 2) [2016] NSWCATAP 153 at [25] where the Appeal Panel of this Tribunal said:

"...Offers of compromise are often said to have been made on the basis of the decision in Calderbank v Calderbank (supra). However, as explained by the former Administrative Decisions Tribunal, in De Costi Seafoods (Franchisees) Pty Ltd v Broadway Shopping Centre Sydney Pty Ltd [2011] NSWADT 40 at [64], in regard to a provision in similar terms to section 60 of the [NCAT] Act, when awarding costs under that provision the specific principles enunciated in Calderbank v Calderbank should not be mechanically applied because unlike courts the starting point is that each party pay its own costs and a cost order can only be made where the Tribunal is satisfied that there are special circumstances warranting an order for costs."

(5) Although there were some failures by the Respondent to adhere to timetables I do not consider them to be so material or significant such as to comprise special circumstances. I also accept, as raised by the Respondent, that the Applicant was not himself free from error, having failed to serve an interlocutory application on the Respondent.

1. In short, I find that there was nothing out of the ordinary regarding the conduct of the proceedings. Even if I were wrong, and there were "special circumstances", I would not consider them sufficient to warrant the exercise of the discretion in s 60 of the NCAT Act to award costs in favour of the applicant.
2. The correct and preferable decision is to refuse the application for costs.

(1) The Tribunal dispenses with a hearing under s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The application for costs is refused.

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.