Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 39, 48, 49

Legislation Act 2001 s 55

Cases cited: Burton & Anor v Rojas Constructions Pty Ltd [2018] ACAT 117

CIC v ACT Planning and Land Authority [2013] ACTSC 96

Swan & Anor v Residential Reports Pty Ltd ACN 609 880 122 [2020] ACAT 76

Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123

1. The respondent is to pay the applicants the sum of $212.50 by 5pm on 3 March 2021.

The order above relates to costs payable in the matter. Other orders in the matter are set out in the orders dated 28 September 2020.

1. The background to the matter is set out in the reasons for the orders dated 28 September 2020.[1] As set out there, the Tribunal reserved its decision on costs and drew the parties' attention to sections 39, 48 and 49 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The parties were at liberty to make any final and further submissions on this issue by 27 November 2020. The applicants filed a submission dated 3 November 2020 and the respondent filed a submission dated 27 November 2020. The Tribunal then made a further order that the parties were at liberty to file and serve further final submissions in reply, and also brought to their attention the case of Burton & Anor v Rojas Constructions Pty Ltd[2] (Burton).The applicants and respondent each filed and served a further submission dated 18 December 2020.
2. The applicants' submissions on costs claim $3,208.75 for payment of costs relating to:

(e) Purchasing the relevant Australian Standard - $113.12.

(f) Purchasing various audio and written transcripts for five hearings during the ACAT proceedings - $534, $37.20, $204, $37.20, $1,538.73, being a total of $2,351.13.

Receipts for each of these fees and costs are attached to the applicants' submission dated 3 November 2020.

1. The respondent contends in its submissions that the ACAT Act does not support the payment of any costs other than costs for re-imbursement of fees; that the ACAT Act makes clear that ACAT is a "no costs jurisdiction;"[3] and the respondent cites Justice Penfold in CIC v ACT Planning and Land Authority[4] (CIC). Also, the respondent contends that it was co-operative and compliant with orders.
2. The respondent also contends that the applicants were not compliant with the orders made during the proceedings, specifically the order dated 30 March 2020 (the order) as follows:

The parties are prohibited from the publication of evidence given at any hearing in these proceedings, and are also prohibited from the publication of matters contained in documents filed with the Tribunal or received in evidence by the Tribunal for any hearings in these proceedings (refer to s39 ACT Civil and Administrative Tribunal Act 2008). If either party or Mr Bunn has to date published material referred to in this Order on any website that they control, then they are required to make every reasonable attempt to stop its ongoing publication by removing it by COB 1 April 2020.[5]

1. The respondent claims substantial costs based on this alleged contravention of this order by the applicants - the respondent estimates that $5,361 has been paid for legal services due to the contravention and submitted various records for other legal services.[6] The Tribunal notes that the above order was made on 30 March 2020, and it was set aside as part of the final orders dated 28 September 2020 as no request for this order to continue was made, and in any case, the decision was public. It is not disputed by the applicants that they set up a website about the proceedings.[7] The applicants contended throughout the proceedings that they complied with the order dated 30 March 2020 upon it being ordered. The respondent contends that this website was not compliant with the above order.

1. Under the ACAT Act, the parties bear their own costs unless the Tribunal decides otherwise.[8] If a party is successful, then the Tribunal may order costs be paid for the re-imbursement of any filing fee and "any other fee...that the tribunal considers necessary for the application."[9]
2. In this case, an extra issue relevant to costs is that the Tribunal made an order under section 39, and the respondent raised at various times during the proceedings that the applicant had contravened this order. Under section 48(2)(c):

Subject to section 49, if a party to the application contravenes an order of the tribunal - the tribunal may order the party to pay the costs or part of the costs of the application to the other party.

1. In considering this issue, the Tribunal must first determine if the order has been contravened and if so, then consider issues set out in section 49. Section 49 states:

(1) The tribunal may award costs against a party for contravening an order under section 48(2)(c) only if satisfied that it is in the interests of justice to do so.

(2) In deciding whether it is in the interests of justice to award costs, the tribunal must consider the following:

(a) whether the contravention was deliberate or could easily have been avoided;

(b) whether (and if so, the extent to which) the contravention has affected the tribunal's ability to hear the application promptly;

(c) the importance to the community of people being able to afford to bring applications to the tribunal.

(3) The tribunal may consider any other relevant matter.

(4) Costs are payable in accordance with the scale of costs in the rules under the Court Procedures Act 2004 applying in relation to the Supreme Court.

9. An additional issue regarding costs in the case, raised by the applicants, is that the respondent caused unreasonable delay or obstruction which can be grounds for a costs order. Section 48(2)(b) states:

If the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application - the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction.

1. A recent case on the issue of costs and the tribunal's powers is Burton, referred to above. In Burton, the Tribunal considered the meaning of section 48 as follows:

Generally speaking, under the ACT Civil and Administrative Tribunal Act 2008, each party is responsible for his or her own costs.[10]

1. The Tribunal in Burton then considered whether the cost of an expert report paid for by the successful party should be re-imbursed:

Section 48(2)(a) of the ACT Civil and Administrative Tribunal Act 2008 was amended in 2014 by the Courts Legislation Amendment Bill 2013.

Prior to that time, ACAT could only award the application fee to a successful applicant. However, people particularly in the civil jurisdiction are faced with other compulsory government fees in order to access justice, such as a fee for an ASIC search, which we require clients to provide if, for example, they are making a claim against a company, and hearing or subpoena fees.

The amendment was intended to allow those other fees to be reimbursed.

However, there was no suggestion or intention that a party could claim a 'disbursement' such as expert witness expenses, although sometimes these are referred to as witness 'expenses or fees'.

The explanatory statement to the amendment provided:

This clause clarifies that when the Tribunal decides an application in favour of the applicant, it can award incidental costs of an application against the other party. Incidental costs may include application filing fees, business name search fees, subpoena filing fees and hearing fees.

The word 'fee' was used intentionally, instead of a broader word 'costs' or 'expenses' to try to distinguish from other kinds of costs or expenses which would ordinarily be considered disbursements.

As a consequence, the Tribunal is unable to make an award [for re- imbursement of the costs of the expert report].[11]

1. The respondent cited CIC in support of its contentions. CIC pre-dates the 2014 amendments to the ACAT Act that broadened the power of a Tribunal to award costs. In 2013 when the CIC decision was made, the relevant part of section 48 (2) was as follows:

(a) if the tribunal decides an application in favour of the applicant - the tribunal may order the other party to pay the applicant the filing fee for the application.

1. Following the 2014 amendments referred to in Burton, the relevant part of section 48(2) was and remains as follows:

(a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant--

(ii) any other fee incurred by the applicant that the tribunal considers necessary for the application; or

Note:An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

1. But CIC has relevance here in that it is authority for section 48 setting out the only reasons for a tribunal to award costs. The then ACAT President, President Crebbin, considered the meaning of section 48 and the relevance of the CIC case after the 2014 amendments in Williams Love & Nicol Lawyers Pty Ltd v Wearne[12] (Williams Love & Nicol Lawyers Pty Ltd). She found that following CIC, the only basis for awarding costs in an ACAT proceeding was that explicitly set out in section 48:

Section 48 of the ACT Civil and Administrative Tribunal Act 2008 ('the ACAT Act') sets out the tribunal's powers in relation to costs. As the parties note, the section was considered by Her Honour Justice Penfold in the matter of CIC Australia Ltd v ACT Planning and Land Authority & Ors [2013] ACTSC 96 ('CIC'). That case was an appeal from a decision of an original tribunal which made a costs order based on a broad interpretation of the power given in section 48 of the ACAT Act.

Does ACAT have power to make costs orders under s 48 of the ACAT Act apart from the power to make costs orders of the kinds specified in s 48(2) in the circumstances specified in s 48(2)?

After a detailed examination of the ACAT Act, the Explanatory Statement for the Act, earlier decisions, especially Appellants v Council of the Law Society & Anor [2011] ACTSC 133, and legislation in other jurisdictions, she answered the question:

No. ACAT's only powers to make costs orders are found in s 48(2) of the ACAT Act and any other applicable legislative provisions.

In her submissions, the respondent argues that the decision in CIC is distinguishable from this matter. We disagree. Her Honour's decision involved an interpretation of the tribunal's generic powers in the ACAT Act. The answer to the question did not turn on the particular law, the facts or the circumstances of that case. It is a decision of broad application. It is a decision of a superior court, directly on point and is binding on the tribunal.[13]

1. The respondent contends that the applicant contravened the order made on 30 March 2020 under section 39 (see above) - if this is the case this is a serious issue which can support an order for costs and also can attract a penalty.[14] The applicants denied this allegation throughout the proceedings.
2. Evidence before the Tribunal included a complete download of the content of the website on 2 February 2020 which pre-dated the order being made,[15] and its complete content on 9 June 2020 which was shortly before the hearing when the order was in place.[16] The respondent contends in its most recent submissions that the order had not been complied with because of certain material uploaded/published onto the website between April and September 2020; the nature of alleged communications sent by the applicants to various third parties in January, February and September 2020; and also that the website remains live.[17]
3. The Tribunal finds that the content on the website, as evidenced by downloads available to the Tribunal while the order was in place, is not in contravention of the order. While the order was in place, the website did not publish evidence given at any hearing or matters contained in documents filed with the Tribunal or received in evidence by the Tribunal for any hearings in these proceeding. The fact that the website existed while the order was in place does not prove a contravention. The order did not require the website to be shut down by the applicants, as was made clear during the hearing when the order was made, and also it is clear from the plain meaning of the order. Further, the Tribunal finds that the alleged communications by the applicants to third parties occurred before and after the order was in place, so cannot be evidence of a contravention of the order. Further, any content on the website that is not consistent with the order before 30 March 2020 or after 28 September 2020 is not relevant, since the order was not in place then. On this basis, the Tribunal dismisses the respondent's claim that the applicants contravened orders of the Tribunal, and therefore concludes that no costs are payable by the applicants.
4. The applicants claim that the respondent exhibited unreasonable delay and obstruction during the proceedings, contrary to section 48(2)(b)[18]. The respondent contends that this is a new issue and cannot be canvassed by the applicants. The Tribunal agrees. However, even if the Tribunal is wrong about this, the Tribunal finds that the examples set out by the applicants are examples of issues that arose due to the matter being complex; the respondent being represented by non-lawyers until a late stage in the proceedings; confusion about process; and service of a large volume of material including photos. On this basis, the Tribunal dismisses the applicants' claim that the respondent was obstructive or caused delay, and therefore no costs are payable by the respondent on this basis.
5. In this case, the Tribunal accepts the reasoning in Burton and dismisses the claim by the applicants for re-imbursement of costs for experts' reports and the Australian Standard. In the Tribunal's view, the costs of expert reports and the Australian Standard are disbursements incurred by the applicants to prove their case and are not fees. However, the Tribunal accepts the applicants' claim for re-imbursement of the filing fee ($159.50), the subpoena fee ($44), and the ASIC search fee ($9).
6. There remains the issue of whether the costs of the transcripts and audios of the hearings during the proceedings incurred by the applicants should be re-imbursed by the respondent ($2,351.13). The Tribunal accepts that there were many hearings in the matter, however this is the situation for many matters before ACAT and does not create a basis in and of itself for the costs of any transcripts or audios incurred by one party to be payable by the other party.
7. The Tribunal accepts that the costs for the transcripts and audios of hearings may well be a "fee" under section 48 - the term 'fee' is not defined but some guidance is provided by a definition for part 6.3 of the Legislation Act 2001 which states that it includes a "charge"[19] and appears to be a term with a wide meaning. However, the clear statement in section 48 and case law cited above that "parties must bear their own costs" coupled with the wording of section 48(2)(a)(ii) including the examples, significantly limit the types of fees that the Tribunal can include in any costs order.
8. Section 48(2)(a)(ii) states that the fees must be considered "necessary" by the Tribunal "for the application". The examples do not explicitly include fees for transcripts and audios of hearings, although the examples are not exhaustive. The examples that are given are either fees that are in practice compulsory before a matter can proceed, for example a company search or a hearing fee, or in practice compulsory for a process such as a subpoena to proceed - by contrast, the applicants did not have to incur the costs of the transcripts and audios but chose to as part of their conduct of the matter. On this basis the Tribunal finds that in this case the costs of the transcripts and audios incurred by the applicants do not meet the requirements for these costs to be payable by the respondent under section 48.
9. The Tribunal therefore makes an order for the respondent to pay the applicants the sum of $212.50 by 5pm on 3 March 2021.

[1] Swan & Anor v Residential Reports Pty Lty ACN 609 880 122 [2020] ACAT 76

[2] [2018] ACAT 117

[3] Respondent's submission 27 November 2020 at [2.4]

[4] [2013] ACTSC 96

[5] Tribunal order 30 March 2020 at [6]

[6] Respondent's submission dated 27 November 2020 at [4.8]

[7] Applicants' application for interim and other orders dated 3 February 2020 page 2.2

[12] [2016] ACAT 123

[13] Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123 at [2]- [5]

[14] ACT Civil and Administrative Tribunal Act 2008 section 39(4)

[15] Applicants' Application for Interim and Other Orders dated 3 February 2020 page 2.11

[16] Further submission by respondent dated 9 June 2020 Attachment A

[17] Respondent's submission dated 27 November 2020 at [3]

[18] Applicants' submission dated 18 December 2020 at [1.8]

[19] Section 55 of the Legislation Act 2001