Consideration
11The general rule in s 88(1) is that each party is to bear its own costs in the Tribunal. That general rule may not be departed from unless the Tribunal is satisfied that it is "fair" to do so, having regard to the various matters set out in s 88(1A).
12In the context of s 88, the word "fair" means just, equitable, or "not unduly favourable or adverse to either side" (Oxford Online English Dictionary, def. 10.b).
13In GA v University of Sydney (No. 2) [2010] NSWADTAP 53, an Appeal Panel of this Tribunal noted at [17]-[19]:
[17]It is very unusual for awards of costs to be made in the review jurisdiction of the Tribunal, especially at first instance. ...
[18]The Tribunal, both at first instance and when dealing with appeals, has recognised that the review jurisdiction provides a means for people to have reconsidered by an independent tribunal external to the administrative agencies of government the correctness and fairness of a decision ... The objectives of the ADT Act, s 3, include ones designed to promote the achievement of justice in individual cases and wider systemic objectives such as:(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,
(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.
[19]In line with these considerations, the Tribunal in dealing with review applications at the Divisional level rarely is called on to deal with costs applications from respondent agencies. The Tribunal has tended only to grant such an application where the review applicant has engaged in conduct that has exacerbated or prolonged unnecessarily the disposal of the matter ...
14I have carefully considered the matters in s 88(1A). I am not satisfied, having regard to those matters, that it would be fair in this case to make a costs award in favour of the Commissioner. I will explain my reasons for coming to this view.
15It is clear that the Applicants' case was very much weaker than the Commissioner's. It is equally clear to me that there were two basic shortcomings in the Applicants' case.
16The first shortcoming stemmed from Mr Prasad's failure to understand that to attract the PPR exemption he needed to establish that his circumstances satisfied the three broad elements of the PPR exemption - occupation, use and residence. He had, at best, a limited understanding of each of those elements.
17As to the first element, that of occupation, his understanding was described in a letter dated 23 November 2009 to the Crown Solicitor's Office, where he said:
Back in 2002, the advice from my accountant was that the property remains primary place of residence as long as part of the property is occupied by a family member ...
18He explained his understanding of the second element, that of use, with his very first statement to the Tribunal (p.6, transcript):
My case [is] dependent on whether I had use of my personal property at North Epping or not, and the [Commissioner is] saying that I never used that property ...
19But it became clear quite early in the hearing that he did not understand the significance of the third element, that of residence, when in answer to questions put to him by Mr Gerard for the Commissioner, he said this (p. 27, transcript):
Q. Is it not the case though that your case is that you were living in the property with [the tenant] during the time of his tenancy? A. That's not my case, no.
Q. It is not your case that you were living in the property with [the tenant]? A. In 2003 I did not live with [the tenant]. But I had a - I had a room there which I accessed during that 2003. That's my case.
20The second shortcoming in the Applicants' case stemmed from Mr Prasad's belief that the Commissioner or the Tribunal had some over-arching discretion to waive, or at least reduce, the land tax liability even if the PPR exemption were not strictly available. For example, in the letter dated 23 November 2009 to the Crown Solicitor's Office, Mr Prasad said (emphasis added):
In summary, the issue relates to a family that had been under considerable financial and emotional pressures due to the young son's disability ... and its search for a suitable institution (private or public) to educate him.
...The OSR reviewer has asserted in her report that I have not been able to provide all required and complete documentary evidence. In hindsight, her assertion may appear to be correct but it ignores the human side of the issue. ...
21Mr Prasad's closing submissions at the hearing included the following (pp. 87-88, transcript):
... there should be some leniency here because there's special circumstances.
...
[the property] remains our principal place of residence because that's our property and we own it and we eventually are going back to it.
...
We, as a family, are under a lot of stress.
22The Commissioner has submitted, and somewhat forcefully, that in various statements that he made prior to the hearing, Mr Prasad attempted to deceive the Commissioner and that costs should be awarded to the Commissioner because of the resulting "unnecessary disadvantage" to him.
23To conclude that Mr Prasad's behaviour was so grave as to warrant a finding that he had attempted to deceive the Commissioner, I would need to be comfortably satisfied that that was the case: Briginshaw v Briginshaw (1938) 60 CLR 336. I am not so satisfied. Each of the statements of which the Commissioner complains is explicable, in my view, by reference to the first shortcoming in the Applicants' case - the lack of understanding of the requirements of the legislation. The Commissioner's view that the statements were "nuanced", and the implication that they hinted at living arrangements that might have supported the exemption, are both predicated on a level of insight into the requirements of the legislation that Mr Prasad simply did not have. Once that is acknowledged, the argument for attempted deception falls away.
24There are additional factors which the Commissioner urges me to take into account and which he says weigh against the Applicants: failure to attend various directions hearings; failure without reasonable excuse to comply with the Tribunal's directions; prolonging unreasonably the time taken to complete the proceedings. While as a general rule the Tribunal should be reluctant to ignore instances of dilatory conduct by parties, these factors weigh, at most, only very marginally against the Applicants.
25The reason for the general rule in s 88(1) of the ADT Act is that, as a general proposition, citizens seeking independent review of a decision made by a State Government agency should be entitled to pursue that avenue in the Tribunal without exposing themselves to the danger of having to pay the agency's costs of defending its decision. As it was put (although in relation to different legislative provisions) by the Victorian Court of Appeal in Transport Accident Commission v O'Reilly [1998] VSCA 106 at [18]:
... a person making a claim ... and reasonably and in good faith pressing it, albeit unsuccessfully, ... should not on that account necessarily be out of pocket.
26It also needs to be acknowledged that an agency such as the Chief Commissioner of State Revenue is in a position of obvious advantage in relation to the citizens of the State, particularly self-represented ones. He has more resources and better knowledge of the law that he administers. That is a matter properly to be taken into account, in an appropriate case, under s 88(1A)(e) of the ADT Act.
27Ultimately, after weighing the factors in s 88(1A) of the ADT Act, I am not satisfied that it is fair to award costs to the Commissioner. In the circumstances there is insufficient reason to displace the general rule in s 88(1).