On 22 November 2018 the Appeal Panel made an order allowing an appeal against a decision of the Tribunal concerning whether or not the Tribunal had jurisdiction to hear an application made under the Retirement Villages Act 1999 (NSW) (RV Act) concerning an alleged breach of the village rules by the appellant. That dispute concerned a dog called Rex and whether he was an assistance animal within the meaning of the Disability Discrimination Act 1992 (Cth) (DD Act).
We determined the Tribunal has no jurisdiction because the claim was a federal matter within the meaning of the Commonwealth Constitution. We published reasons for decision being Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 (Principal Reasons).
In dismissing the appeal, we made directions to permit the parties to make any application for costs. The directions we made required the parties to file and serve the submissions, including on whether a hearing of any costs application should be dispensed with. The appellant applied for costs.
Each of the parties filed written submissions, to which we will refer below.
These reasons relate to that application.
[2]
Submissions
Neither party suggested that a hearing on the question of costs was required. We are satisfied, having regard to the submissions received, that the application for costs should be dealt with "on the papers" and that an order should be made under s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) to dispense with a hearing.
Both parties agree that the provisions of s 60 of the NCAT Act apply and that the appellant must establish special circumstances in order for the Tribunal to make an order for costs.
The appellant's application for costs was limited to the cost of Counsel, Mr Finnane, which costs had been discounted. The amount claimed was $24,200 inclusive of GST. Of this amount, we were told that the Retirement Village Residents Association (Association) contributed $20,000 and Mr Murphy paid $4200. In addition, the costs of the transcript of the proceedings at first instance were sought, that amount being $725.34. As to the other costs which the appellant incurred, we were advised that the solicitors representing the appellant did so on a pro bono basis. Consequently, no other costs were claim.
[3]
Jurisdiction to award costs
In relation to the jurisdiction of the Tribunal to award costs, the appellant says this arises under the provisions of ss 60(2) and (5) of the NCAT Act. The appellant relies on the decision of the Appeal Panel then the Trust Company Ltd v Diamond Certification Laboratory of Australia Ltd [2016] NCWCATAP 263.
The respondent accepted that the Tribunal had jurisdiction to award costs, referring to the decision of McCallum JA in Filippi v Fagimo Pty Ltd [2012] NSWSC 1221 at [27]-[31].
We will proceed on this agreed basis.
[4]
Special circumstances
Both parties agree that in order for the appellant to obtain an order for costs, he must satisfy the Appeal Panel that there are special circumstances. It is common ground that s 60(3) specifies factors relevant to the question of whether special circumstances exist. It is also common ground that special circumstances mean out of the ordinary but not necessarily extraordinary or exceptional.
The appellant's submissions concerning special circumstances and why an order for costs should be made can be summarised as follows:
1. The appeal was factually and legally complex, concerning the interaction of the DD Act and the RV Act in the context of the Constitution. In this regard reference was also made to the parties "grappling with the ongoing Gatsby litigation and its impact and how best to deal with the Appeal".
2. There was a "public interest" issue, namely the effect on the appellant if he was not entitled to keep his dog at the village. In this regard reference was also made to the appellant's new evidence to the effect that "the dog was progressing with his training" and that the appellant was continuing to be treated for acute depression. While the appellant accepts that these issues did not, ultimately, arise for consideration in the appeal (the appeal being dismissed on jurisdictional grounds), he contends that they are nonetheless important considerations.
3. There was also a public interest issue concerning "NCAT operating within its constitutional framework and not beyond its reach in this particular instance", it being significant that the conclusions of the Tribunal could have cause "far-reaching prejudice … given [the appellant's] vulnerability and condition". In this regard the appellant submitted (at par 15 of these submissions dated 6 December 2018):
Understand we are not putting that in any way to be critical of NCAT and the orders were quashed on Appeal, but we do say that the public interest in what occurred here has created a special circumstance that would necessitate an appropriate order for costs that are being sought.
Consequently, the appellant said that an order for costs should be made in his favour. In doing so, the appellant indicated he would return o the sum of $20,000 for Counsel's fees to the Association and provided an undertaking to do so.
In reply, having made submissions concerning the meaning of the expression "complex", the respondent submitted that the area of disputation was of narrow compass, the appeal did not involve any disputed questions of fact and while there were 4 grounds of appeal, it was only necessary for the Tribunal to resolve one. On this ground, having identified recent cases in the Court of Appeal and High Court dealing with jurisdictional matters, the respondent said that the law had been evolving but there was no degree of complexity that would justify an award for costs in the present circumstances.
The respondent then said there was no conduct of the proceedings by it which unnecessarily disadvantaged the appellant nor did the respondent unreasonably prolong the proceedings. The respondents, while ultimately unsuccessful, had a "good case in fact and law" and it could not be said that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance.
As to the public interest submissions, it was always necessary for the Tribunal to determine whether it had jurisdiction. Otherwise, the personal circumstances of the appellant "do not make it more or less important for the Tribunal to uphold the rule of law".
Consequently, the respondent submits there is no basis for a finding of special circumstances to justify award of costs.
As to costs which were funded by the Association, the respondent refers to various authorities and submitted that, cost being compensatory, the appellant should not be compensated for the $20,000 amount which was paid by the Association.
In short, the respondent said no order for costs should be made against it in favour of the appellant; but if a costs order was to be made it shoud be on the basis as agreed or assessed and not a fixed sum, as suggested by the appellant.
[5]
Consideration
As we indicated in the Principal Reasons, the parties agreed that that the Tribunal was not a court of a State: Principal Reasons at [20].
The issue for determination in the substantive appeal was whether the dispute originally before the Tribunal raised a federal matter and whether, in the context of the issues raised in those proceedings, the Tribunal had any jurisdiction to resolve the dispute concerning whether Rex should be permitted to remain at the village.
We determined these matters adversely to the respondent. It is not necessary to set out in detail the reasons for this decision.
The appellant submitted that the circumstances of himself and Rex were "profoundly challenging and difficult" and that the situation he found himself in was out of the ordinary. On the other hand, the respondent was asserting in the original proceedings that Rex was not an assistance animal as claimed and, in any event, was disruptive for other residents at the village. These are matters which we were not required to resolve.
In our view, the circumstances relied on by the appellant on the grounds of public interest do not constitute special circumstances for the purposes of s 60 of the NCAT Act. Any person with a disability and in need of an assistance animal is properly entitled to assert their rights under the DD Act and any other applicable legislation. On the other hand, a village operator, when confronted with an animal alleged to be untrained and unruly, is entitled to take such steps as available to it to prevent any inappropriate disruption to the safety and well-being of its other residents. These types of disputes raise questions of fact which, in the present case, we are not required to resolve. However, the fact that the case involves a person who might have a disability and/or a question of whether or not a particular dog is an assistance animal within the meaning of the DD Act, does not make the case out of the ordinary nor does it give rise to any public interest question that might be out of the ordinary.
Accordingly, we do not accept special circumstances arise under the heading "public interest".
In relation to the nature and complexity of the proceedings, as pointed out by the parties, the original application and the appeal have had a long history. Final resolution of the appeal was delayed because the parties were awaiting the outcome of various appeals in other proceedings which raised like issues. Once these issues were resolved by agreement, the area of disputation in relation to this appeal was substantially narrowed.
The issues which remained to be resolved involved the question of what was a federal matter and whether, having regard to the issues raised in the proceedings at first instance, the Tribunal was deprived of jurisdiction because of s 76(ii) of the Constitution. The Appeal Panel was assisted in the determination of this question by the parties providing the document entitled "Issues Document" which we set out at [43] of the Principal Reasons.
When these matters are considered in the context of the Principal Reasons, there was a question to be resolved on appeal about what issues were in fact raised at the hearing. Otherwise the Appeal Panel was required to apply established authority concerning when a matter is a federal matter.
Seen in this light, while the present matter might, initially, be considered "out of the ordinary" because it involves a constitutional question, this is a common feature of the work of the Tribunal in the Consumer and Commercial Division where it is required to interpret a multitude of legislation (both Federal and State) and properly categorise the claims brought to determine whether or not the Tribunal has jurisdiction. At the end of the day, this boils down to a question of fact, namely what issues were raised by the parties in the proceedings at first instance.
Accordingly, we are not satisfied the proceedings are out of the ordinary.
It follows that we are not satisfied that an order for costs should be made in favour of the appellant.
[6]
Orders
The Appeal Panel makes the following orders:
1. A hearing of the costs application is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW).
2. The application for costs is dismissed.
[7]
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
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Decision last updated: 02 January 2019