T & A Skills Care Service Pty Ltd v Chief Commissioner of State Revenue

(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.

1. The onus to satisfy the Tribunal that there are special circumstances warranting an award of costs lies with the Respondent (the applicant for the costs order): Styles v Wollondilly Shire Council [2017] NSWCATAP 108.
2. The special circumstances specified in s 60(2) of the NCAT Act are circumstances that are out of the ordinary and do not have to be extraordinary or exceptional: see Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 (Youssef) at [108].
3. Merely because one or more s 60(3) criteria are satisfied does not necessarily mean special circumstances exist to justify a departure from the general rule, given the following observations of the Appeal Panel in The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [11]-[13]:

"However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out.

Even if satisfied that there are special circumstances, the Appeal Panel must further be satisfied that they are circumstances "warranting an award of costs" - Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21]; Youssef at [108].

The exercise of the discretion requires the Tribunal "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalafv Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35]."

1. In Youssef, the Appeal Panel stated, at [107]:

"The general rule that parties should bear their own costs is designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable: Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41]. It is accepted that where a party is unsuccessful in the party's application before the Tribunal, this alone will not amount to special circumstances in favour of the successful party."

"1 Applicant to pay the respondent's costs of and incidental to the shoots case and timber case, including but not limited to the costs incurred by the respondent in briefing experts in respect of the shoots case and timber case, and those experts' costs, as agreed or assessed; and

2. In addition to the costs referred to in order 1, to the extent the respondent's costs are not clearly referable to the shoots case or the timber case, the applicant is to pay two thirds of the respondent's costs, excluding any costs of the respondent in briefing an expert in respect of the agistment case and the agistment expert's costs, as agreed or assessed."

1. One of the Applicant's arguments was that the bamboo grown on the land had been cultivated for the purpose of selling bamboo shoots (shoots case). Under cross-examination, the only witness for the Applicant (Mr Huynh) conceded that no sales of bamboo shoots had occurred, and the Applicant's counsel subsequently retracted its reliance on a "bamboo shoots business" in each relevant year: Decision at [105(2)].
2. The Respondent had sought to meet this argument by obtaining expert evidence from a bamboo shoot expert witness, Ms N. Ms N was not required for cross examination by the Applicant, and the Applicant has now made the following concession in its submissions at [12]:

"The Applicant concedes and acknowledges that the Shoots Case was abandoned at the hearing (see the Substantive Decision at [22] to [24]). This included not requiring the expert Ms N for cross-examination at the hearing, in circumstances where the Applicant had required Ms N for cross examination the Applicant concedes that the late notice not to require her for cross examination was unreasonable and caused the Respondent to incur unnecessary costs contrary to [the guiding principle in] s 36(3) of the [NCAT] Act. The Applicant concedes that it should pay the Respondent's costs of and incidental to the shoots case, including but not limited to the costs incurred by the Respondent in briefing experts in respect of the shoots case, and those experts' costs, as assessed or agreed."

1. On that basis, I am satisfied that special circumstances exist to warrant an order in favour of the Respondent for costs of the shoots case.

1. The Respondent is also claiming costs in respect of the "timber case"; in this regard, the expert evidence was from a bamboo timber expert witness, Ms Snyder, because the Applicant also conceded - following cross examination of My Huynh - that no sales of bamboo poles (from which timber is derived) had occurred in the relevant years.
2. Unlike Ms N, Ms Snyder was required by the Applicant to attend the hearing and she was cross-examined in respect of her expert report.
3. The Respondent submits that the Applicant's case was untenable, and it became clear at the hearing that the Company never made any sales of bamboo timber during the relevant years under review, and that the witness, Mr Huynh, changed his testimony in this regard under cross-examination.
4. I agree that Mr Huynh's testimony changed during the course of the hearing. Nonetheless, the expert report and oral testimony of Ms Snyder was referenced in some detail in my reasons because she established the facts necessary to establish my finding - in favour of the Respondent - in respect of the required level of cultivation of bamboo for future bamboo timber production, and it was not in dispute that the bamboo was planted on more than 50% of the land. I preferred Ms Snyder's evidence over that of Mr Huynh who (notwithstanding his withdrawal of evidence of sales of bamboo poles in the relevant years) maintained that bamboo plants required little, if any, ongoing cultivation. Although not successful, the Applicant's position in respect of the bamboo timber business was not untenable, was not retracted and was required to be considered, even after the change in facts relating to bamboo pole sales.
5. Having accepted the evidence of Ms Snyder, and having regard to s 60(3) and the authorities above, I am not satisfied that there are special circumstances that warrant a departure from the usual rule in respect of the costs of the Timber Case.

1. In proposed Order 2 the Respondent seeks two thirds of the balance of its costs, but excluding "any costs of the respondent in briefing an expert in respect of the agistment case and the agistment expert's costs, as agreed or assessed".
2. I find no reason to adopt a different position from the timber case in respect of the balance of the costs sought. I have reviewed the Respondent's submissions and the affidavit recounting the chronology of events prior to and during the hearing, and the resulting frustration. I agree that the guiding principle is central to proceedings before the Tribunal, and that the hearing may have been shortened if the particular circumstances had not arisen. The Respondent alleges that the Applicant concealed the true factual foundation, but Mr Huynh's limited English may also have been a factor in respect of the change of position.
3. Having regard to all the matters, I do not consider there to be special circumstances that warrant a departure from the usual rule in respect of the second order claimed: all evidence was considered, assisted by the parties' submissions and the Respondent's experts. Ultimately, the assessment of the evidence led to the conclusion that the onus of proof was not satisfied.

(1) An oral hearing on the issue of costs is dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The Applicant is to pay the Respondent's costs of and incidental to the shoots case, including but not limited to, the costs incurred by the Respondent in briefing experts in respect of the shoots case, and those experts' costs, as assessed or agreed.

(3) The application for costs is otherwise refused.

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.