Peppernell v McCrae [2024] NSWCATAP 122 | Case summary

NCAT Appeal Panel|2024-06-27

Summary

Reasons for decision in this matter were delivered on 13 May 2024 (Primary Decision): Peppernell v McCrae [2024] NSWCATAP 79. For the reasons there given, we refused leave to appeal and otherwise dismissed the appeal.
At the appeal hearing, the respondent foreshadowed in his written submissions that he sought costs of the appeal if the appellant were unsuccessful. He submitted that the appeal was "frivolous, vexatious and misconceived", and that therefore he was entitled to costs pursuant to s 60(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
At the conclusion the Primary Decision we set a timetable for the filing of submissions on costs.
After considering the submissions, we have decided to dismiss the application for costs.

Preliminary issue

In the Primary Decision, we stated that we proposed to deal with costs "on the papers" and without a hearing. Neither party opposed us determining costs on the papers. As we are satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, we dispense with a hearing: NCAT Act, s 50(2).

Respondent's submissions

The respondent relevantly submits: 6 At [56, 64 and 65] of the Reasons, the Member [sic - the Appeal Panel] concluded that the Appellant could not establish any of the three grounds of appeal. These are the grounds which must be satisfied by the appellant for leave to be granted for an appeal under Clause 12 of Sch 4 of the NCAT Act. 7 … the Appellant has brought an appeal before the Tribunal which was essentially hopeless as it could not establish any grounds for appeal and leave was therefore not granted. 8 The Respondent was required to engage Solicitors to advise on the Appeal brought against them by the Appellant. The Respondent engaged our office for representation on 4 February 2024. 9 On 25 March 2024, our office received correspondence from the Appellant which stated the follow: I have been ordered by the tribunal to forward a copy of my paperwork to the respondent by the 22 March. This is done and I am not wishing to discuss the appeal with you or the respondent. 10 At all times the Respondent through their Solicitors, attempted to liaise with the Appellant about their case, which was refused. Respectfully this demonstrates the Appellant not cooperating with the Respondents or the Tribunal in trying to provide a just, quick and cheap resolution. 11 The Respondent respectfully submits that the Application brought by the Appellant is frivolous, vexatious and misconceived 12 The reasons for this are that no new evidence or reasonable submissions have been presented by the Appellant which carries any weight at all. 13 The Applicant has clearly been untruthful and misled the Tribunal, which is outlined in their reasoning for bringing the appeal. This is shown through the claim that the Defendants' expert was misinformed and made a mistake. This is unsubstantiated by the Appellant.
The balance of the submissions provide reasons the respondent relies on for justifying costs being awarded on the indemnity basis.

Appellant's submissions

The appellant's principal submissions are: 1. the fencing dispute has been an ongoing one for many years; 2. the respondent became aggressive towards the appellant and they "stopped replying completely"; 3. she has been continuously contacting the local council in the hope they would "sort this out"; 4. she commenced the Tribunal proceedings "in the hopes of sorting this matter out"; 5. the respondent has been misleading the local council, engineers and the Tribunal; 6. she has not been dishonest.
We found these submissions to be of little assistance to us. They simply go over the history of the matter and attack the respondent. They did not directly address the appellant's submissions as to why he was entitled to costs, on the indemnity basis or otherwise.
We did not find each parties' submissions as to the honesty and integrity of the other to be of any assistance.

Relevant law and principles

At the appeal hearing the respondent submitted that the appeal was "frivolous, vexatious and misconceived", and that that therefore he was entitled to costs pursuant to s 60(3) of the NCAT Act.
We agree that s 60 is the correct costs rule. Section 60 provides: 60 Costs (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. (4) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section - costs includes - (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
The Appeal Panel has considered on many occasions the applicable principles as to whether there are "special circumstances" to justify a costs order in favour of a party. The principles were summarised in The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [6] - [15], which we paraphrase as follows:

"special circumstances" mean circumstances out of the ordinary but not to the degree of being exceptional or extraordinary;
a costs order is not made simply because one or more of the circumstances in s 60(3) of the NCAT Act is established. The special circumstances must be sufficient for the Tribunal to exercise its discretion in favour of making a costs order;
the party seeking costs bears the onus of persuading the Tribunal that the special circumstances are sufficient to justify departing from the usual principle in s 60(1) of the NCAT Act;
the discretion should be exercised judicially, with consideration that the usual principle is that by reason of s 60(1) of the NCAT Act each party bears its own costs, and the Tribunal must be persuaded to depart from that principle;
whether there are sufficient special circumstances to justify a costs order is a question of fact and each case must be assessed according to its circumstances.

Issues to be determined

The following issues fall to be determined (and we summarise our conclusion in italics): 1. has the respondent established "special circumstances"? No. 2. if so, should the Tribunal order the applicant to pay the respondent's costs. Does not arise. 3. if so, should those costs be on the indemnity or ordinary basis? Does not arise.

Has the respondent established "special circumstances"?

The principal basis for costs was that the appellant's three grounds of appeal failed and therefore that the appeal was frivolous, vexatious and misconceived.
We disagree.
In Primary Decision we set out the three grounds of appeal.
The first and principal ground of appeal was that the Tribunal erred in preferring the evidence set out in the Cook Roe Report and relied on by the respondent to the evidence of Mr Morris relied on by the appellant. For the reasons we gave, we did not grant leave to appeal in respect of that ground.
The second ground of appeal was that the Decision was not fair and equitable, principally because the Tribunal failed to give sufficient weight to the photographs relied on by the appellant. For the reasons we gave, we did not grant leave to appeal in respect of that ground. In essence, we did not find the photographs persuasive of the appellant's claims.
The third ground of appeal was based on fresh or new evidence. Applying the relevant legal principles, we did not allow the appellant to rely on that evidence.
As was stated in Shi Shi Cindy Lee v Dr Geoffrey Lee Jessica Talbert v Dr Geoffrey Lee & Sue Maree Olsen/Lee. Sue Maree Olsen v Shi Shi Cindy Lee, Jessica Talbert, GP Legal Solicitors [2014] NSWCATCD 181: 31 An application is "frivolous" if it cannot possibly succeed, if it is manifestly groundless, discloses a case which the court or tribunal is satisfied cannot succeed: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129,130. 32 Further in Perden v Lake Macquarie Refrigeration Pty Ltd (2004) 134 IR 149 the Full Bench of the Industrial Relations Commission of NSW said at [20] "In the light of the well established line of authority, and the ordinary meaning of the word "frivolous" we are satisfied that an application ... will be "frivolous" if on its face it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter." 33 The test for determination of proceedings to be considered "vexatious" is set out in Attorney General v Wentworth (1988) 14 NSWLR at 491 in the following terms; (a) Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; (b) They are vexatious if they are brought for a collateral purpose of having the court adjudicate on the issues to which they give rise. (c) They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
Applying these tests, while we are satisfied that the appeal was a weak one, we would not describe it as any of frivolous, vexatious, otherwise misconceived or lacking in substance.
As that is the only basis that the respondent claims there are special circumstances are established as warranting an award of costs, the application for costs must fail.

If so, should the Tribunal order the applicant to pay the respondent's costs.

If so, should those costs be on the indemnity or ordinary basis?

It follows that both these issues fall away, and do not require our consideration.

Orders

The Appeal Panel orders: 1. The respondent's application for costs is dismissed.

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: 27 June 2024

Peppernell v McCrae

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Judgment (11 paragraphs)

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Cases Cited (5)