• There are no special provisions in the ESF Act relating to costs of reviews undertaken by the Tribunal. The costs application falls to be determined under the legal principles relevant to ss 57 and 58 of the South Australian Civil and Administrative Tribunal Act 2013.
• The conduct of the respondent simplified the proceedings and kept the costs of the parties to a minimum in the circumstances.
• The Tribunal is generally a no costs jurisdiction and costs will rarely be awarded. There is no reason to displace the starting point that the parties bear their own costs of these review proceedings.

Administrative Tribunals - Procedure - Statutory powers - Order for Costs - Ordinary position that parties are to bear their own costs - Effect of party conduct on entitlement to costs - Where proceedings withdrawn by applicant

Emergency Services Funding Act 1998 s 8

South Australian Civil and Administrative Tribunal Act 2013 ss 8, 48, 57, 58

South Australian Civil and Administrative Tribunal Regulations 2015 reg 7

South Australian Civil and Administrative Tribunal Rules 2014 r 4, 27, 101, 102

Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100

GKZ v Department of Child Protection (No 3) [2022] SACAT 76

GKZ v Department of Child Protection [2022] SACAT 74

Hanna v City of Marion & Anor [2020] SACAT 21

Hoare v Registrar of Firearms [2021] SACAT 65

Maurici v Registrar of Firearms [2022] SACAT 61

Re HWS [2018] SACAT 39

Re Minister for Immigration & Ethnic Affairs (Cth); ex parte Lai Qin (1997) 186 CLR 62

REM & PVR v Department for Child Protection [2020] SACAT 9

South Australian Housing Trust v Brady & Milera [2018] SACAT 2

Steel v SA Ambulance Service [2020] SACAT 86

Tester v District Council of Yankalilla [2022] SACAT 56

Tronnolone v Edwards & Bryan [2016] SACAT 27

Solicitor for the respondent: Mr C Pager, Crown Solicitor's Office

1. This is the decision on Mr Nash's application for costs following the outcome of Mr Nash's application to the Tribunal for review of a decision of the respondent. Mr Nash's application in respect of the respondent's decision was brought in the Tribunal's review jurisdiction.
2. I explain in these reasons why I have dismissed Mr Nash's application for costs.
3. This decision is structured as follows:
   1. the relevant legislation and case law relating to costs in the South Australian Civil and Administrative Tribunal (the Tribunal);
   2. an account of the course and conduct of the proceedings in the Tribunal;
   3. the submission and evidence of the parties; and
   4. the Tribunal's consideration of the costs application in light of the relevant law, the course the proceedings took in the Tribunal and the parties submissions and evidence.

1. It is important to note from the outset that the determination of costs applications in the Tribunal's review jurisdiction differs from costs applications in some courts where the successful party might usually expect to receive an award of costs in their favour against the unsuccessful party.[1] Whereas, in some courts, the principle of fairness grounds the traditional entitlement to costs where a party is successful, in respect of the Tribunal the Parliament has stipulated that there is a different starting point, namely that parties bear their own costs.[2]
2. This proposition is well settled and has been consistently determined to be so in a series of decisions made by the Tribunal, including by the former and current Presidents.
3. Also, the approach to the question of costs in the Tribunal's review jurisdiction generally differs from some of the other jurisdictions conferred on SACAT where the conferring legislation expressly permits the Tribunal to make an award of costs in favour of the successful party and where the Tribunal occasionally does so (such as the Tribunal's disciplinary and equal opportunity jurisdictions).
4. An application for costs in the Tribunal's review jurisdiction is governed principally by ss 57 and 58 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) which state:

57 - Costs > > (1) Unless otherwise specified in this Act, a relevant Act, or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal. > > (2) Unless otherwise specified in a relevant Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party, or of a person required to appear before the Tribunal or to produce evidential material, if the Tribunal thinks that it is appropriate to do so after taking into account -

(a) the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and

(c) any provision made by the rules;[3] and

(d) any other matter considered relevant by the Tribunal.

(3) Without limiting subsection (2), if the Tribunal dismisses or strikes out any proceedings in any prescribed circumstances, the Tribunal should also make an order for costs against the party against whom the action is directed unless the Tribunal is of the opinion that there is a good reason for not making an order in the circumstances of the particular case.

(4) If the Tribunal makes an order for the payment of costs and does not fix the amount of costs, that amount is to be assessed and settled in accordance with the rules.

58 - Costs - related matters

(1) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses or loss resulting from any proceedings or matter.

(2) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party, where the matter that is the subject of any proceedings comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -

(a) whether the party genuinely attempted to enable and assist the decision‑maker to make a decision on its merits;

(b) whether the party (being the decision‑maker) genuinely attempted to make a decision on its merits.

(3) The rules may deal with the effect of certain offers to settle, and the response, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.

(4) The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, any proceedings in a way that resulted in unnecessary costs.

1. Understanding the application of ss 57 and 58 require them to be read in their statutory context within the SACAT Act, and also the legislation conferring jurisdiction on the Tribunal because, as noted earlier, there may be a different approach depending on the nature of the jurisdiction being exercised by the Tribunal.[4]
2. It is therefore relevant to bear in mind that the objectives in s 8(1) of the SACAT Act state:

8 - Main objectives of Tribunal > > (1) The main objectives of the Tribunal in dealing with matters within its jurisdiction are -

(a) in the exercise of its jurisdiction, to promote the best principles of public administration, including -

(i) independence in decision‑making; and

(ii) natural justice and procedural fairness; and

(iii) high‑quality, consistent decision‑making; and

(iv) transparency and accountability in the exercise of statutory functions, powers and duties; and

(b) to be accessible by being easy to find and easy to access, and to be responsive to parties, especially people with special needs; and

(c) to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high‑quality processes and the use of mediation and alternative dispute resolution procedures wherever appropriate; and

(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(e) to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and

(f) to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit; and

(g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

1. The broad jurisdictional context in which the above provisions operate was articulated by the Tribunal in Clarke v Veterinary Surgeons Board of South Australia (No 2). There the Tribunal said:

Essentially the Tribunal deals with applications relating to housing, where in relative terms the claims are low, and need to be addressed quickly and at minimal cost to both parties, so it is appropriate parties bear their own costs; it exercises protective jurisdictions, including mental health, guardianship, and administration matters, where it would be inappropriate for parties to bear costs on a "win/lose" basis, since this is not the nature of the process before the Tribunal; and in its review jurisdiction, where the Tribunal principally hears applications concerning whether a decision of a government agency is "correct or preferable", and the Tribunal's role is generally in the nature of administrative review, rather than the resolution of an inter partes dispute between individuals.[5]

2. In previous costs decisions, the Tribunal has made and/or confirmed the following general propositions or observations which can guide the determination of costs applications under ss 57 and 58 (although each case must be determined on its merits and some of these matters may not arise in a particular case):
   1. the clear effect of s 57 is that the Tribunal is generally a no costs jurisdiction and costs will rarely be awarded;[6]
   2. a costs order is exceptional.[7] It is not appropriate to describe the costs discretion under s 57(2) as broad and unfettered and there must be good reasons to depart from the default position that each party is to bear its own costs;[8]
   3. the overarching principle is that parties bear their own costs unless it is appropriate for the Tribunal to make a costs order and none of the factors that must be considered under s 57 overrides this general proposition;[9]
   4. this rule applies even where a party succeeds in the proceedings;[10]
   5. section 57(2)(d) gives the Tribunal a wide discretion (subject to the overarching principle) to consider a range of facts, circumstances and conduct in determining if it is appropriate to make an order for costs;[11]
   6. the objectives in s 8 of the SACAT Act, and how a costs order will reflect or further those objectives, are to inform whether a costs order should be made.[12] This includes, in particular, ensuring that applications are processed as quickly as possible while achieving a just outcome; keeping costs to parties to a minimum insofar as is just and appropriate; and acting with as little formality and technicality as possible;
   7. the central concern with respect to costs is that of access to the Tribunal. The actual or possible imposition of a costs order on an unsuccessful party will always represent a burden to access.[13] In Hanna v City of Marion, the Tribunal noted that "access to the Tribunal is a primary objective of the SACAT Act, and the Tribunal in considering whether to award costs must take into account the impact the possibility of a costs order may have on the objective of accessibility";[14]
   8. matters in the Tribunal should be conducted efficiently and in a manner proportionate to the dispute (that is, legal costs and other costs should be reasonable and proportionate to the importance and complexity of the issues in dispute). A person representing a party in proceedings must use their best endeavours to facilitate the just, quick and cheap resolution of the real issues in proceedings;[15]
   9. section 57(2)(b) indicates that costs should only generally be awarded where a party has been disadvantaged by proceedings that have little or no merit as proceedings can be used by one party to achieve ends other than to resolve legal disputes.[16] These are matters brought before the Tribunal that are unlikely to succeed and where that is known or ought to have been known by that party, and brought or argued frivolously or vexatiously.[17] This generally suggests that s 57(2)(b) is relevant where unmeritorious proceedings are brought by the applicant;[18]
   10. lack of merit is not measured by lack of success where there is a legitimate dispute requiring adjudication;[19] or that a decision was made without power or there was an error in the administrative decision-making process that was not intentional[20] or reckless;[21]
   11. the ability under s 57(2)(d) to take into account any other relevant matter means that there is a wide discretion to consider a range of facts, circumstances and behaviours (including the nature of the proceedings, the complexity of the proceedings and the conduct of the parties) when determining whether it is appropriate to make a costs order;[22]
   12. the conduct of a party in knowingly exploiting an advantage unfairly, or otherwise acting inappropriately, unreasonably, unfairly or oppressively, may be relevant to a costs application;[23]
   13. there is no reason to treat the success or failure of a public authority differently from the success or failure of a private party.[24] However, it is sufficient to enliven the discretion to award costs if a government agency persists with defending what should, on proper consideration, be seen to be a decision without merit, and this is relevant to whether the applicant's costs have been kept to a minimum;[25]
   14. the reference to "proceedings" in s 57 means the review proceedings in the Tribunal not the decision under review;[26] and
   15. in contrast to most proceedings in the Tribunal's review jurisdiction, disciplinary proceedings are more akin to inter partes proceedings where an award of costs is usual in favour of a successful party.[27]
3. A significant decision in the Tribunal's review jurisdiction where costs were awarded in favour of the successful party, and which was described as having "very unusual and specific circumstances",[28] is GKZ v Department of Child Protection [2022] SACAT 29 ("GKZ"). The Tribunal found that the respondent Department had failed to make a legally correct decision when it ought to have done so on the information readily available to it and had objectively failed to take into account relevant considerations under legislation. The Tribunal found that the respondent persisted with what should, on proper consideration, have been seen to be a decision without merit. The respondent did not concede the matter until several days into the full hearing. The respondent's failure to conduct a thorough assessment and failure to conduct the review proceedings in a manner that assisted in keeping costs to a minimum or simplifying the proceedings, were found to be relevant considerations under s 57(2)(a) and (d).[29] The Tribunal also found that the respondent took an adversarial approach in the proceedings and did not conduct the matter with the view of assisting the Tribunal to reach the correct or preferable decision, instead its approach was to "doggedly defend the decision under review ... [in] an inflexible and partisan manner".[30]
4. In contrast to GKZ, the Tribunal found in Hoare v Registrar of Firearms that costs were not warranted against the respondent where the respondent itself brought attention to the point that resolved the proceedings, and did so at an early opportunity, which saved the applicant the time and cost of having to argue her case.[31]
5. As noted above, the different treatment of costs in the Tribunal is well settled. Except where conferring legislation expressly permits an award of costs to be made, a properly advised represented party in the Tribunal's review jurisdiction should generally be on notice that they ought not to have expectations that they will be awarded costs if they are successful before the Tribunal.[32]

1. On 30 January 2023, Mr Nash lodged an application in the Tribunal for review of a decision of the Treasurer's delegate made on 21 December 2022 on an objection under the Emergency Services Funding Act 1998 (the ESF Act) for the 2021/2022 year. It would appear that this decision was made following consultation with the Valuer-General and the City of West Torrens.
2. The issue in dispute was the land use attributed to Mr Nash's property for the purposes of the Emergency Services Levy (ESL). Under s 8 of the ESF Act, land is taken to be used for a particular purpose if, in the opinion of the Valuer-General, it is being predominantly used for that purpose on the relevant day (which, in this case, was 1 July 2021).
3. Mr Nash asserted the property should be categorised as residential: it is his home and had been recognised as such by the council. The decision of 21 December 2022 maintained that the correct land use was commercial, which attracts a higher ESL.
4. It would appear that the property had been classified as a commercial property since 2016.
5. At this time of the application Mr Nash was represented by a solicitor, Mr Tim Campbell.

1. On 28 February 2023, the first directions hearing in the matter was conducted by telephone. Parties appeared by their legal representatives. Mr Chol Pager has represented the respondent for most of the proceedings. Mr Nash was also present at this first telephone directions hearing.
2. Mr Campbell told the Tribunal that he had written to the respondent on 25 February 2023 about Mr Nash's assertion that the respondent possessed extensive documents going back many years that were relevant to the issue in dispute and were not in the respondent's s 35 Book of Documents of 17 February 2023. He said this material relates to the history of approval and use of the premises for residential purposes.
3. Mr Pager said he had not received Mr Campbell's correspondence but undertook to obtain instructions and, if any such additional material existed, the respondent would file a supplementary Book of Documents. Mr Campbell said that Mr Nash would then be filing an affidavit.
4. Mr Pager said that "at this moment I am seeking instructions to file a strike out application [of Mr Nash's application for review] based on the materials that are before the Tribunal".[33]
5. Directions were made by the Tribunal for the filing of a supplementary Book of Documents by the respondent and evidentiary material by Mr Nash. The matter was adjourned to a further directions hearing.

1. Between the first and second directions hearings, Mr Nash filed further documents (on 17 April 2023) that Ms Rose[34] said had recently come into Mr Nash's possession and also an affidavit affirmed by Mr Nash and written submissions on the merits of the decision under review (both dated 4 April 2023).
2. The material provided by Mr Nash on 17 April 2023 was a bundle consisting of a small number of documents (about seven) that had evidently been disclosed to Mr Nash under the Freedom of Information Act 1991 by the Department of Infrastructure and Transport on 21 June 2021. These appear mainly to be brief one-page or two-page emails or other documents emanating from the Valuer-General's office, mainly from 2008 - 2009 but with one document perhaps dating from the early 1980s.
3. Ms Rose said that Mr Nash was still of the view that there is more relevant correspondence between the respondent and the Valuer-General. Mr Pager said that the only documents possessed by the respondent were those in the Book of Documents. It would seem that in March 2023 the parties had corresponded with each other on this point, with Mr Pager maintaining the respondent's position that it did not possess any other documents relevant to the decision under review (including correspondence between the respondent and the Valuer-General) and Mr Nash asserting the existence of correspondence he had conducted with the Valuer-General over a span of years in relation to the land use of the property.
4. Mr Pager however said that the parties had agreed that the respondent would review the recent additional materials provided by Mr Nash and reconsider its decision. The proceedings were adjourned to permit this to occur.
5. In correspondence with the Tribunal in late May 2023, the respondent exercised, with Mr Campbell's agreement, the "liberty to apply" given at the directions hearing to extend the time for its reconsideration by a further three weeks.

1. With the consent of the parties, the directions hearing listed for this date was administratively adjourned to a further directions hearing not before 10 July 2023 to permit the respondent to discover other documents relevant to the decision under review and advise the Tribunal of its final position.

1. At this directions hearing, the parties referred the Tribunal to the respondent's reconsideration of the decision under review. This was dated 12 July 2023 and, in brief, was in Mr Nash's favour. The respondent determined that the relevant land use for 2021/2022 was residential and recalculated Mr Nash's ESL liability for 2021/2022 accordingly.[35] This followed a review undertaken by the Valuer-General of the history of the land use factor attributed to the subject land. Mr Pager indicated at the costs hearing that the Valuer-General had located some archived materials.
2. Mr Campbell submitted that the Tribunal should make consent orders under s 37 of the SACAT Act to reflect the decision of 12 July 2023 ("the consent orders issue"). The Tribunal indicated that it did not ordinarily make such orders in its review jurisdiction without hearing the matter for itself (whether in person or on the papers) and determining if the outcome sought by the parties was the correct or preferable decision. The Tribunal invited the applicant to withdraw the application for review.
3. Mr Campbell indicated that he disagreed with the Tribunal's view on the consent orders issue but that he would need to obtain instructions to withdraw the application. He said he wished to preserve Mr Nash's ability to make a costs application.
4. Mr Pager sought that the Tribunal make orders dismissing the application for review on the grounds that it no longer had any utility. The Tribunal indicated in its directions that this would seem to be the appropriate course should Mr Nash himself not withdraw his application. Mr Pager also expressed his view that a costs application would be futile.
5. Directions were made for Mr Nash to make any costs application he may wish to make and for submissions to be provided on this application and on the consent orders issue, with these matters then to be dealt with by the Tribunal on the papers.

1. The Tribunal relisted the proceedings for a further directions hearing when it became apparent that Mr Nash was no longer represented by solicitors and had sought an extension of time for compliance with the directions of 18 July 2023.
2. Orders were made extending the times for compliance with the previous directions. As Mr Nash was now unrepresented, orders were also made setting down the costs application for hearing in person rather than a decision being made on the papers. The Tribunal drew Mr Nash's attention to s 57 of the SACAT Act and that, unlike most courts, the starting point in proceedings before the Tribunal is that parties bear their own costs.

1. The hearing of the costs application was held in person on 27 October 2023.
2. Mr Nash had previously told the Tribunal that he had a hearing impairment so a hearing loop was provided for his use at the hearing, although Mr Nash appeared satisfied that he needed only to adjust the volume of his hearing aids to be able to hear the proceedings properly. Mr Nash attended the hearing in a wheelchair, accompanied by a friend who provided physical assistance with the wheelchair. Steps were taken to ensure that Mr Nash could participate fairly in the hearing and I am satisfied that Mr Nash was able to do so.
3. In particular, the Tribunal offered Mr Nash a choice whether to make his oral submissions first or respond to Mr Pager's submissions. At Mr Nash's election, Mr Pager made his oral submissions first. The Tribunal recommended that Mr Nash make notes of any point of disagreement with Mr Pager's submissions so he could address the Tribunal on them during his own submissions. However, at the conclusion of Mr Pager's submissions, Mr Nash complained that, due to his disability and for reasons related to his memory, he should have been able to address the points of disagreement as they arose during Mr Pager's submissions. By that time it was too late for the Tribunal to take these concerns into consideration. I am satisfied that Mr Nash was given fair and reasonable notice by the Tribunal of how the Tribunal proposed to conduct the hearing and did not bring his concerns to the Tribunal's attention until after Mr Pager had already made his submissions.
4. Mr Nash did not ultimately make a formal written application for costs. His application was always oral. In furtherance of the objectives of the Tribunal to keep costs to the parties to a minimum and to act with as little formality and technicality as possible, I determined to waive compliance with the requirements for a formal costs application and to proceed to deal with Mr Nash's clearly expressed intention to make an application for costs.

1. Mr Nash filed written submissions on costs dated 12 September 2023 and provided oral submissions at the hearing. He forwarded additional written submissions to the Tribunal on 30 October 2023. I have closely considered all of Mr Nash's submissions. However, it is sufficient for the purposes of these reasons to simply summarise his main contentions.
2. Mr Nash's claim for costs rests on the following assertions which he submits displace the usual starting position as to costs:
   1. the respondent was negligent in failing to review the extensive relevant documents that were at all times held by the respondent and would not change their decision despite having overwhelming evidence to the contrary;
   2. the respondent failed to adhere to the model litigant principles by conducting itself in a manner that resulted in unnecessary costs. The respondent knowingly exploited an advantage unfairly or otherwise acted inappropriately;
   3. the respondent behaved unreasonably and caused the Tribunal hearing by advising him that the Tribunal hearing was his "only choice to have their decision reversed";
   4. the respondent caused him to incur legal costs unnecessarily by stating that it intended to apply to strike out his application for review which resulted in his solicitors undertaking research and preparation in the expectation that there would be such an application made;
   5. he has acted in good faith and made a genuine effort to resolve the dispute in the Tribunal and at the objection stage; and
   6. he is a 72 year old disability pensioner and cannot afford the approximately $7,000 legal costs he has incurred and is financially disadvantaged by proceedings that had little or no merit.

1. The Tribunal takes into consideration the respondent's written submissions and Mr Pager's oral submissions at the hearing.
2. In brief, the respondent submitted:
   1. there is no provision in the ESF Act empowering the Tribunal to award costs of proceedings taken under that Act;
   2. the respondent adhered to the objectives in s 8 of the SACAT Act, conducting itself in a way that avoided the Tribunal and Mr Nash wasting resources, and there is no proper basis to depart from the default position as to costs in the Tribunal;
   3. the respondent did not actively defend the proceedings other than to request that Mr Nash particularise the documents which he asserted were in the respondent's possession;
   4. the documents supplied by Mr Nash on 17 April 2023 had not previously been provided to the respondent by Mr Nash, including at the consideration of the objection. The earlier provision of these documents by Mr Nash would have reduced the duration of the proceedings;[36]
   5. the applicant has failed to provide evidence of having sent the respondent "overwhelming" information;
   6. on receipt of the documents ultimately provided by the applicant, the respondent properly undertook to reconsider its position on its own initiative and ultimately made the decision that fully resolved the matter;
   7. the applicant misunderstands the concept of the model litigant and has not explained on what basis he asserts the respondent has not acted as the model litigant in this matter; and
   8. the applicant's age and health problems are irrelevant to the question of costs.
3. The respondent did not submit that the absence of a formal hearing and finding by the Tribunal meant that the Tribunal could not make an award of costs in this case if such an award were appropriate.[37] However, in view of the Tribunal's ultimate decision on Mr Nash's application for costs, it has not been necessary to consider this question.

1. I emphasise at this point that the merits or otherwise of Mr Nash's application for review is not the focus of the Tribunal's consideration of Mr Nash's costs application. The primary focus is the principles relating to applications for costs discussed earlier in these reasons.

Lack of evidence of "extensive" documents held by respondent

1. At the outset it is necessary to make a finding on Mr Nash's assertion that the respondent held extensive probative materials relevant to the appropriate land use for his property that the respondent negligently or wilfully failed to consider.
2. It is fair to say that Mr Nash has failed to provide any evidence of this assertion. It was for Mr Nash to provide evidence of the existence of these documents. He did not do so.
3. Mr Nash referred to a form he filled out in 2010 or earlier indicating that the property was residential, which he said Revenue SA accepted. That document was not in evidence. It was not contained in the Book of Documents. In any event, it is of limited relevance given that the issue in dispute concerned the Valuer-General's opinion of predominant land use in 2021, some 11 years later. Also, I do not accept that a single document is evidence of the respondent being in possession of an extensive collection of relevant materials that it negligently or wilfully failed to consider.
4. Mr Nash said that the Tribunal should simply accept his oral evidence given under affirmation that he has seen this supposedly extensive range of materials in the respondent's possession. I declined to do so in face of the repeated and emphatic denials made on behalf of the respondent that it held such material.
5. Accordingly, I do not accept that the respondent held any materials relevant to the issue in dispute over and above what was contained in the respondent's Book of Documents.
6. It follows that I do not accept that the respondent (or the Valuer-General) acted negligently or with wilful ill-intent in respect of a cache of relevant and probative documents. At its highest, the evidence is suggestive of inadvertent oversight as to the existence of further documents of potential relevance, but I stop short of making an actual finding in that regard as the matter was not the subject of evidence before me.

1. Mr Nash said early in the hearing that he had a recording of a telephone call with one of the respondent's officers (a Ms "Tattersall") that he thought took place in about 2021. Mr Nash had not filed and served the recording prior to the hearing and had not previously referred to its existence.
2. Mr Nash had an imperfect memory of the contents of that recording or whether he had informed Ms Tattersall that he was recording the conversation. However, Mr Nash asserted that it was relevant to the issue of whether the respondent held pertinent documents as to the residential classification of his property. A discussion then ensued in the hearing as to the lawfulness of the recording under the Surveillance Devices Act 2016. Mr Pager objected to the tender of the recording on the grounds of what he submitted to be its unlawfulness and that its receipt by the Tribunal would be unlawful. Mr Nash asserted, in general terms, that it was within his rights to have recorded that conversation. Out of an abundance of caution, a warning against self-incrimination was administered to Mr Nash.
3. Under the SACAT Act, it is within the power of the Tribunal to determine whether it should receive fresh evidence at a hearing.
4. Ultimately, whether a lawful recording or not, I determined not to receive the recording in evidence. This was because of its questionable probative value. If I were to take even the most favourable view of its contents as described by Mr Nash, at most it would appear to constitute an acknowledgement by Ms Tattersall that the respondent held some documents in 2021 relevant to the residential land use issue. More importantly, I declined to receive the recording as its contents would not change my finding (explained in more detail below) that, in these proceedings, the respondent did not conduct itself in a manner that would entitle Mr Nash to his costs.

1. I agree that there are no special provisions in the ESF Act relating to costs of reviews undertaken by the Tribunal.[38] Therefore, Mr Nash's costs application falls to be determined under the legal principles relevant to ss 57 and 58 of the SACAT Act.
2. I agree with Mr Pager's submissions that there is no reason to displace the starting point that the parties bear their own costs of these review proceedings.
3. I agree that the respondent has conducted itself in accordance with the relevant objectives in s 8 of the SACAT Act by taking prompt action by the time of the second directions hearing to reconsider and subsequently reverse its decision on the basis of the materials provided by Mr Nash on 17 April 2023 and others located by the Valuer-General. In this regard, the respondent has conducted itself as one would expect of the model litigant.
4. The conduct of the respondent simplified the proceedings and kept the costs of the parties to a minimum in the circumstances. I am satisfied that the respondent used its best endeavours to facilitate the just, quick and cheap resolution of the issues in dispute. The respondent acted in accordance with s 58(2)(a) and (b) of the SACAT Act.
5. Examination of the respondent's Book of Documents (however, without the benefit of submissions being received on the matter from either party) indicates that the original decision under review was not meritless in the sense of the GKZ case as there was a reasonable evidentiary basis for the decision of the Treasurer's delegate.
6. I do not agree with the contentions made repeatedly and forcefully by Mr Nash that the respondent acted egregiously. There is no evidence that the respondent unfairly exploited an advantage by using its "might and power", as Mr Nash contended, or that the respondent otherwise acted inappropriately, unreasonably, unfairly or oppressively.
7. I agree with Mr Pager's submissions that the respondent did not persist in defending an unmeritorious decision. On the contrary, the evidence is clear of an early recognition on the part of the respondent, at or before the second directions hearing, that it should review and reconsider its decision. In this regard, this case is unlike the GKZ matter.
8. I reject Mr Nash's contention that the respondent forced him to commence these proceedings as his only alternative. There is no evidence of that. Mr Nash pointed to a paragraph in the letter of 21 December 2022 informing him of the outcome of his objection to the Treasurer. However, that paragraph is simply advice of his review rights to this Tribunal. I do not accept that Mr Nash was any more forced to commence these proceedings than any other person who exercises their right to seek a review of a government decision by this Tribunal.
9. I reject Mr Nash's contention that he should be entitled to costs as a result of the work performed by his solicitors in respect of the mooted strike out application. It was not unreasonable for Mr Pager to foreshadow at the first directions hearing that the respondent may make an application to strike out the application for review. However, I consider that any work done by Mr Nash's solicitors in advance of any such application being made was done at the risk that such work would be unnecessary if, as in this case, such an application to strike out was not actually made.
10. I agree with Mr Pager's submission that Mr Nash's age and disability are not relevant to his entitlement to costs under the SACAT Act. I accept that Mr Nash has experienced frustration, annoyance, inconvenience and expense in asserting his rights and ultimately being successful in this matter. However, these matters alone are not significant to the question of his entitlement to costs under the Act.

1. I agree with Mr Pager's submissions that Mr Nash's substantive application for review no longer has any utility and should either be withdrawn by Mr Nash or dismissed by the Tribunal.
2. As noted in an earlier decision of the Tribunal:

If the decision has effectively come to an end, or has been superseded by a later decision which reverses that decision, then ... there is no practical relief that the Tribunal can afford to the applicants on the merits review. Consequently, pursuing the review proceedings would be futile.[39]

3. I agree with Mr Pager's submissions that the Tribunal's role is to conduct a merits review and not to make findings in the nature of declarations in respect of decisions which are no longer operational.[40]
4. It is beyond doubt that Mr Nash has been unequivocally successful in his application for review, albeit that it did not proceed to a formal hearing as it was resolved by the respondent reconsidering its decision in accordance with the additional evidence.
5. Mr Nash refuses to withdraw his application for review. He does not accept that he has been entirely successful. He appears to base this view on his perception that, for the purposes of land tax matters, the respondent considers Mr Nash's property to be of a commercial nature.
6. Mr Nash's position, as it bears on how his application for review should now be finalised by the Tribunal, is wholly misconceived. The application for review related only to the appropriate land use under the ESF Act for the 2021/2022 ESL year. As noted, Mr Nash has been successful on this point.
7. If Mr Nash has any other concerns related to rates and taxes, he should seek legal advice about what remedies may be available to him.
8. As there is no utility in this matter continuing further in the Tribunal, the application for review is dismissed under s 48 of the SACAT Act.
9. For completeness, I note that, as the Tribunal has acted under s 48 to dismiss Mr Nash's application for review, s 57(3) of the SACAT Act and reg 7 of the South Australian Civil and Administrative Tribunal Regulations 2015 suggest that the Tribunal should consider making a costs order in the respondent's favour against Mr Nash. However, the respondent does not seek its costs under s 57(3) and, in all the circumstances of this particular matter, I consider I should refrain from making such an order.

1. The application for review is dismissed under s 48 of the South Australian Civil and Administrative Tribunal Act 2013 with no order as to costs.
2. The applicant's application for costs is dismissed.

1. [1] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [12] per Justice Hughes; Re HWS [2018] SACAT 39 at [31].

[2] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [16] per Justice Hughes; Hanna v City of Marion & Anor [2020] SACAT 21; GKZ v Department of Child Protection [2022] SACAT 29.

[3] Rules 27, 101 and 102 of the South Australian Civil and Administrative Tribunal Rules 2014 address some of the procedural requirements for costs applications but do not add to the factors the Tribunal needs to consider in determining an application for costs.

[4] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [12] per Justice Hughes; Re HWS [2018] SACAT 39 at [31]; GKZ v Department of Child Protection [2022] SACAT 29 at [43]; GKZ v Department of Child Protection (No 3) [2022] SACAT 76 at [8].

[5] Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [29].

[6] Tronnolone v Edwards & Bryan [2016] SACAT 27 at [35] per Justice Parker.

[7] Hoare v Registrar of Firearms [2021] SACAT 65 at [38].

[8] GKZ v Department of Child Protection [2022] SACAT 29 at [64].

[9] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [18] per Justice Hughes; Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [9].

[10] Hoare v Registrar of Firearms [2021] SACAT 65 at [32]; Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [34]; GKZ v Department of Child Protection [2022] SACAT 29 at [71].

[11] Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [16].

[12] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [19] per Justice Hughes; Re HWS [2018] SACAT 39 at [31]; Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [32].

[13] See generally Hanna v City of Marion & Anor [2020] SACAT 21 at [45].

[14] Hanna v City of Marion & Anor [2020] SACAT 21 at [45]. See also Maurici v Registrar of Firearms [2022] SACAT 61 at [68].

[15] Rule 4, South Australian Civil and Administrative Tribunal Rules 2014; Re HWS [2018] SACAT 39 at [31] Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [36].

[16] Tronnolone v Edwards & Bryan [2016] SACAT 27 at [35] per Justice Parker; South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [20] per Justice Hughes; Hanna v City of Marion & Anor [2020] SACAT 21 at [31].

[17] GKZ v Department of Child Protection (No 3) [2022] SACAT 76 at [14].

[18] Hoare v Registrar of Firearms [2021] SACAT 65 at [15].

[19] GKZ v Department of Child Protection [2022] SACAT 29 at [109]. Also, Tronnolone v Edwards & Bryan [2016] SACAT 27 at [35].

[20] GKZ v Department of Child Protection (No 3) [2022] SACAT 76 at [13], [17], [25].

[21] Steel v SA Ambulance Service [2020] SACAT 86 at [66].

[22] See generally South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [22], [26], [33], [34] per Justice Hughes and Re HWS [2018] SACAT 39 at [31].

[23] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [36] per Justice Hughes. Also, Re HWS [2018] SACAT 39 at [44].

[24] South Australian Housing Trust v Brady & Milera [2018] SACAT 2 at [38] per Justice Hughes; GKZ v Department of Child Protection [2022] SACAT 29 at [76].

[25] GKZ v Department of Child Protection [2022] SACAT 29 at [86].

[26] Hoare v Registrar of Firearms [2021] SACAT 65 at [18].

[27] Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100 at [30]. See also at [33] for a discussion of the costs considerations where a professional body in disciplinary proceedings receives funding from its members.

[28] GKZ v Department of Child Protection [2022] SACAT 29 at [125].

[29] See also Tester v District Council of Yankalilla (No 2) [2022] SACAT 56.

[30] GKZ v Department of Child Protection [2022] SACAT 29 at [121].

[31] Hoare v Registrar of Firearms [2021] SACAT 65 at [39].

[32] Hanna v City of Marion & Anor [2020] SACAT 21 at [62].

[33] Confirmed from Tribunal recording of directions hearing.

[34] Who represented Mr Nash at this directions hearing.

[35] Mr Pager indicated in his email to the Tribunal of 15 August 2023 that Mr Nash's ESL liability from 2015/2016 to 2023/2024 inclusive has also been determined on a residential land use basis.

[36] It would appear that Mr Nash conceded in his submissions of 30 October 2023 that he could have provided these documents earlier than he did.

[37] He referred to Re Minister for Immigration & Ethnic Affairs (Cth); ex parte Lai Qin [1997] HCA 6 per McHugh J as seemingly suggesting that the Tribunal could do so.

[38] The ESF Act is a "relevant Act" for the purposes of section 57 as it confers jurisdiction on the Tribunal.

[39] REM & PVR v Department for Child Protection [2020] SACAT 9 at [66].

[40] See REM & PVR v Department for Child Protection [2020] SACAT 9 at [43] - [47].