The Owners - Strata Plan No. 61285 v Taylor

Whether the Tribunal has authority to direct to whom a civil penalty is paid and, if so, what are the principles applicable in determining the recipient and to whom should the penalty be paid in this case

1. The Commissioner filed comprehensive written submissions on the topic of the powers of the Tribunal and to whom a penalty could be paid. Ms Morgan, on behalf of the Commissioner made further oral submissions at the hearing on 2 December 2022.
2. The Commissioner made no submissions as to what order should be made in this particular case.
3. The Commissioner's submissions can be summarised as follows: 1. Section 247A of the SSMA substantially re-enacts s 202 of the now repealed Strata Schemes Management Act 1996 (NSW) (1996 Management Act). 2. In the 1996 Management Act, s 205 dealt with the issue of to whom a penalty should be paid. Section 205 provided: 205 Payment of penalties or costs (1) If the Tribunal makes an order under this Part requiring a person to pay a pecuniary penalty, the Tribunal may specify in the order that the penalty or a part of the penalty must be paid to the applicant for the order as damages for work carried out by the person in relation to the matter the subject of the proceedings. (2) The imposition of the pecuniary penalty operates as a judgment under the Civil Procedure Act 2005 for the amount of the pecuniary penalty against the person required to pay it in favour of: (a) the applicant for the order, or (b) the applicant for the order and the Director-General, if the order requires part only of the penalty to be paid to the applicant, or (c) the Director-General only, if the order so requires. (3) Any pecuniary penalty or part of a pecuniary penalty recovered under this Part that the Tribunal has not ordered to be paid to an applicant for an order is to be paid to the Director-General for payment into the Department of Fair Trading Operating Account or an account prescribed by the regulations for the purposes of this subsection. (4) The making of an order as to costs operates as a judgment under the Civil Procedure Act 2005 for the amount of the costs against the person required to pay it in favour of the applicant for the order. 1. Although s 205 was not re-enacted with the amendment that introduced s 247A of the SSMA, the Tribunal has the power to determine to whom a civil penalty should be paid and a discretion to exercise in this regard. 2. The power arises in one of the following ways: 1. It is implied as a necessary power incidental or consequential to the power to impose a penalty. Reference was made to various Federal Court decisions being Johns v Connor (1992) 35 FCR 1 at 10, Dunkel v Commissioner of Taxation (1990) 27 FCR 524 at 528 and Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108 (TWU Case) at 127-8. 2. It is an ancillary order which the Tribunal can make under: 1. section 229 of the SSMA; or 2. section 29(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 1. The remedy permitting the imposition of a civil penalty for non-compliance with an order of the Tribunal and the extent of the Tribunal's powers is to be considered having regard to the legislative history of the scheme: D Pearce, Statutory Interpretation in Australia (2019, 9th ed, Lexis-Nexis Butterworths) at [3.36]. 2. That legislative context includes various extrinsic material, as permitted by s 34(1)(b) of the Interpretation Act 1987 (NSW), being the second reading speeches in respect of the enactment of the 1996 Management Act and the amendment of the SSMA to introduce s 247A: 3. This material ought to lead the Tribunal to conclude that there is a power to order a civil penalty imposed under s 247A to be paid to the applicant, another person or the State of New South Wales and there is a discretion to be exercised in deciding the recipient. 4. As to how the discretion is to be exercised, the Commissioner submitted at [47]-[48] of its written submissions: 47. In most cases, it would be appropriate for the Tribunal to order that a civil penalty ordered under s 247A is payable to the applicant for the order, especially where the applicant has suffered loss or damage as a result of the contravention. This is ultimately a matter for the Tribunal to determine, in light of the facts and circumstances of the case. The Tribunal should specified, when making a pecuniary penalty order under s 247A, the person or entity to whom the penalty is payable so that it is clear what is required for compliance with the order. 48. Where the Tribunal does not consider it appropriate for the order to be payable to the applicant, the Tribunal may order that the penalty is payable to the State. The penalty will also be payable to the State if the Tribunal does not make any order as to the recipient of the penalty. This would be consistent with the approach adopted in the former s to a 5 of the 1996 SSM Act and with other legislative regimes dealing with civil penalties, which provides that pecuniary penalty orders that are not, by operation of the relevant provisions, expressly payable to a stated person payable to the Crown. 1. As to who the recipient of the civil penalty should be, reference was made to the following decisions: 1. as to payment to an owners corporation as damages for work carried out by the owners corporation: The Owners- Strata Plan No 11318 v HH Dening No 2 Pty Ltd (Strata Communities Scheme) [2002] NSWCTTT 625; Owners Strata Plan No 16619 v Enright [1999] NSWSSB 22; 2. (b) as to payment to the State in circumstances where there was no evidence that the lot owner's failure to replace the polished concrete floor finish had affected the operation, administration or management of the strata scheme: The Owners - Strata Plan No 82306 v Anderson [2017] NSWCATCD 85. 1. As to the Commissioner's submission that a civil penalty was otherwise payable to the Crown, reference was made to s 77 of the NCAT Act. Of this submission I understood the Commissioner to contend that if there was no order specifying to whom the penalty was payable, the default position was that it was a debt recoverable by the Crown. 2. Otherwise, the Commissioner accepted that the Fines Act 1996 (NSW) does not apply to a civil penalty imposed under the SSMA.
4. The applicant, in its submissions dated 22 November 2022, and at the hearing of this application, adopted the submissions of the Commissioner and said that the penalty should be paid to the Owners Corporation in the present case.
5. As to whom the penalty should be paid, the respondent, in his written submissions dated 24 September 2022, made reference to s 77(7) of the NCAT Act noting it provided a penalty under that section was a debt to the Crown. Otherwise, the appellant made no substantive submissions on the issue of construction of the SSMA.

Analysis

1. The Tribunal is given power to impose a penalty in two circumstances. One is under s 147 of the SSMA when a by-law has been contravened following the issue of a notice under s 146 of the SSMA. The second is under s 247A of the SSMA, where there has been contravention of an order of the Tribunal made under the SSMA.
2. In the case of a penalty imposed under s 147 of the SSMA, s 147(6) provides: (6) A monetary penalty is payable to the owners corporation, unless the Tribunal otherwise orders.
3. In the case of a penalty imposed under s 247A of the SSMA, the Act is silent as to whom the penalty is to be paid.
4. Section 248 provides: 248 Recovery of unpaid civil penalty Any civil penalty imposed by the Tribunal as a result of a contravention of an order under this Act that is to be paid by an owner of a lot to the owners corporation may be recovered under this Act as if it were an amount of unpaid contributions.
5. In respect of s 248 it should be noted: 1. the section was enacted before s 247A was introduced and does not directly deal with the issue of the payee of a penalty imposed under s 247A; 2. it operates in respect of recovery of a civil penalty "imposed by the Tribunal as a result of a contravention of an order (emphasis added) under the [SSMA]"; 3. it does not, by terms, apply to a penalty imposed under s 147 of the SSMA, that section permitting the imposition of a penalty following a further contravention of a by-law after issue of a notice under s 146, not a contravention of an order of the Tribunal.
6. Interestingly, it appears s 248 could have no relevant operation in respect of a civil penalty imposed under the SSMA prior to the introduction of s 247A. This is because it is only under s 247A of the SSMA that an owners corporation could apply for the imposition of a civil penalty for contravention of a Tribunal order. Otherwise: 1. a civil penalty imposed under the provisions of the NCAT Act, is payable to the Crown: s 77(7); and 2. penalty provisions in the SSMA are enforced by: 1. using the penalty notice provision in s 250 (notices being issued by "an authorised officer"); or 2. by proceedings for offences in the Local Court or before the Supreme Court in its summary jurisdiction: s 251. In these cases the Fines Act applies.
7. The applicant and the Commissioner do not contend the Fines Act applies. They were correct to make this concession.
8. Section 8 of the Fines Act provides: 8 To whom fine payable (1) A fine imposed by any court is payable to the registrar of the court unless the court or the registrar of the court otherwise directs. (2) The payment may be lodged with the registrar or other officer of any court.
9. Section 4 of the Fines Act defines a "fine" as follows: 4 Meaning of "fine" (1) For the purposes of this Act, a fine is - (a) any monetary penalty imposed by a court for an offence (including a fine to which Part 7 of the Service and Execution of Process Act 1992 of the Commonwealth applies, subject to that Part), or (a1) any monetary penalty imposed by a court for contempt of court, or (b) any amount payable under a penalty notice enforcement order, or (c) any court fees or charges payable by a person under an order made by a court in proceedings for an offence, or (d) any victims support levy, or (d1) any court costs levy payable under section 211A of the Criminal Procedure Act 1986 in proceedings for an offence, or (e) any witnesses' expenses payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer, or (f) any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer, or (g) any other amount of a kind prescribed by the regulations. (2) However, a fine does not include any amount of a kind excluded by the regulations. (2A) For the purposes of this Act - (a) a victims support levy is taken to be a fine imposed by the court by which the person liable to pay the levy was convicted, and (b) a court costs levy payable under section 211A of the Criminal Procedure Act 1986 is taken to be a fine imposed by the court by which the person liable to pay the court costs levy was convicted or found guilty. (3) In this section, proceedings for an offence includes - (a) proceedings for an apprehended violence order, and (b) proceedings on appeal in respect of proceedings for an offence.
10. "court" is defined in s 3: court means the Supreme Court, the Industrial Relations Commission, the Land and Environment Court, the District Court, the Local Court, the Children's Court or any other court.
11. There is no regulation prescribing a civil penalty imposed under ss 147 or 247A of the SSMA to be a fine for the purpose of the Fines Act and such a penalty is not otherwise within any of the categories in s 4(1)(a)-(g) above. Further, the Tribunal is not a court within the meaning of that Act.
12. Consequently, the Fines Act does not apply to a penalty imposed under the SSMA.
13. The Commissioner's primary submission is that there is implied into s 247A a power of the Tribunal to determine and specify by order to whom a penalty should be paid.
14. In the TWU Case Gray and North JJ said at [37], 37 … There is an ancient legal maxim, the Latin expression of which was Quando lex aliquid alicui concedit, concedere videtur id. sine quo res ipsa esse non potest. This is translated in Wharton's Legal Maxims (3rd ed, 'Law Times' Office, 1903) at p 141 as "When the law gives anything to any one, it gives also all those things without which the thing itself would be unavailable." This principle has long been recognised as applicable to the exercise of powers conferred by statute. The conferral of such powers is said to carry with it powers that are "necessary" for, "incidental" to or "consequential" upon the exercise of the power granted. See Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 at 478 per Lord Selborne LC; The Trolly, Draymen and Carters Union of Sydney and Suburbs v The Master Carriers Association of New South Wales (1905) 2 CLR 509 at 516-517 per Griffith CJ and 523-524 per O'Connor J; Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 574 per Dixon CJ, Williams, Webb and Taylor JJ; R v Gough; Ex parte Australasian Meat Industry Employees' Union (1965) 114 CLR 394 at 406 per Barwick CJ, 416 per Windeyer J and 422 per Owen J; Re Sterling; Ex parte Esanda Ltd (1980) 30 ALR 77 at 83; Dunkel v Deputy Commissioner of Taxation (NSW) (1990) 27 FCR 524 at 528; Australian Securities Commission v Bell (1991) 32 FCR 517 at 528 per Sheppard J; Johns v Connor (1992) 35 FCR 1 at 10; and Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25 at 35 per Mildren J, with whom Martin CJ agreed.
15. Interpreting the nature and extent of the grant of power to impose a civil penalty under the SSMA must be "consistent with the language and purpose of all provisions of the statute": Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) HCA 28; 194 CLR 35 at [69].
16. Regard may be had to extrinsic material, including second reading speeches: s 34 Interpretation Act.
17. However, as stated by the High Court in Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (p519]: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text" (citation omitted). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself."
18. In the present case, relevant context for the purpose of construing the grant in s 247A includes the following.
19. First, the Legislature has expressly provided that a penalty imposed under s 147 of the SSMA is to be paid to an owners corporation unless otherwise ordered: SSMA ss 147(6). In this regard, under s 147(1), the applicant is and can only be an owners corporation (although a strata managing agent appointed under s 237 of the SSMA may be entitled to exercise the powers of an owners corporation to make such an application). However, the words "otherwise orders" expressly authorises a payment to someone other than the applicant;
20. Second is the content of the second reading speech, by which s 247A was introduced. In his speech on 17 June 2020, Mr Anderson, the Minister for Better Regulation and Innovation, said: The bill also addresses a difficulty facing lot owners and owners corporations in enforcing an order of the Tribunal where breaches continue to occur. Proposed section 247A in the bill re-introduces a provision that is similar to section 202 in the former Strata Schemes Management Act 1996, which was repealed under the 2015 reforms. That section enabled original applicants for Tribunal orders to apply to the Tribunal for an order for a monetary penalty to be paid by a person who has contravened a tribunal order. However, section 202 of the former Act was not carried across to the 2015 Act. That meant that if the tribunal order does not involve breach of a by-law, proceedings for the offence of non-compliance with a tribunal order can be commenced only by the Attorney General, or a person or body authorised by the Attorney General, and results from all Tribunal processes been standardised under the Civil and Administrative Tribunal Act 2013. The bill before the House today corrects this historical anomaly and provides for better access to enforcement of Tribunal orders. Section 247A will allow the applicant for the original Tribunal order, the owners corporation or another interested party, to apply to the Tribunal for an order requiring the payment of a pecuniary penalty of up to $5,500 if there is a contravention of the original order. Importantly, the bill provides a double jeopardy protection by making it clear that a person cannot be punished twice if the act or omission also constitutes a contravention under a civil penalty provision of the Civil and Administrative Tribunal Act, or contempt of the Tribunal.
21. It seems clear from this statement that what was intended by the amendment to add s 247A was to reverse the process of "standardisation", which: 1. removed a power to impose a civil penalty for breach of a Tribunal order previously found in the 1996 Management Act; and 2. limited how orders made under the SSMA could be enforced, the statutory regime being that in the NCAT Act. This included restricting who could take civil penalty proceedings and in what circumstances. However, in enacting s 247A, the Legislature did not enact a provision similar to that found in s 147(6).
22. Thirdly, the nature of the proceedings needs to be considered.
23. In The Commonwealth v Director, Fair Work Building Industry Inspectorate 258 CLR 482; [2015] HCA 46 (Fair Work Case), in the context of a civil penalty regime in which a regulator is involved, the plurality said at [24]: In essence, civil penalty provisions are included as part of a statutory regime involving a specialist industry or activity regulator or a department or Minister of State of the Commonwealth ("the regulator") with the statutory function of securing compliance with provisions of the regime that have the statutory purpose of protecting or advancing particular aspects of the public interest. Typically, the legislation provides for a range of enforcement mechanisms, including injunctions, compensation orders, disqualification orders and civil penalties, with or, as in the BCII Act, without criminal offences. That necessitates the regulator choosing the enforcement mechanism or mechanisms which the regulator considers to be most conducive to securing compliance with the regulatory regime. In turn, that requires the regulator to balance the competing considerations of compensation, prevention and deterrence. And, finally, it requires the regulator, having made those choices, to pursue the chosen option or options as a civil litigant in civil proceedings.
24. In the context of the SSMA and the provisions found in ss 147 and 247A, the role of the "regulator" is given to an owners corporation (in the case of s 147) or, as provided in s 247A(2), to: 1. the applicant for the original order, or 2. the owners corporation, owner or other person having or acquiring an estate or interest in a lot in the strata scheme to which the order relates, or 3. in the case of an order that gives effect to any agreement or arrangement arising out of a mediation session, either party to the mediation.
25. However, that does not change the nature of the proceedings, namely to provide deterrence and assist in obtaining compliance by the person on whom a notice to comply is served or against whom an order is made by the Tribunal: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (Pattinson) at [14]-[15].
26. In this regard, the purpose of a civil penalty is not to provide a windfall to an applicant. Nor is it to provide retribution: Pattinson at [15].
27. Further, a civil penalty does not, usually, provide a form of compensation to an applicant, either for damage suffered or a compensation for costs of bringing proceedings, costs of proceedings being a separate issue regulated by the costs provisions of the NCAT Act. Although, as recognised in s 147(6) of the SSMA, penalties under that section are payable to the applicant owners corporation "unless the Tribunal otherwise orders".
28. It should be noted at this point that, under the 1996 Management Act, the power to impose a penalty for contravention of a by-law after service of a notice to comply was found in s 203 of that Act. In that case, s 205 of the 1996 Management Act (set out above) regulated to whom the penalty was to be paid. Unlike the SSMA, the discretion in s 205 to authorise payment to an applicant (as opposed to the Director General of the Department of Fair Trading) made reference to making such an order "as damages for work carried out by the [applicant] in relation to the matter the subject of the proceedings".
29. Importantly, this constraint on discretion is not found in s 147(6) of the SSMA.
30. Fourthly, in relation to the stated purpose to "correct the anomaly", this correction does not imply a grant of a power or creation of a discretion to order payment of a penalty under s 247A to the applicant, as opposed to order a payment to the Minister for Fair Trading, the Commissioner or the State of New South Wales. To the contrary: 1. the failure to re-enact a provision similar to s 205(1) of the 1996 Management Act; and 2. the different wording in s 147(6), which removed the "damages" test under s 205(1) that also applied to penalties for non-compliance with by-laws following an owners corporation issuing a notice to comply, counts against that interpretation.
31. There is a qualification to what is said in the preceding paragraph. That is s247A must also be read in the context of s 248. As explained above, s 248 contemplates circumstances where a civil penalty imposed for a contravention of an order of the Tribunal might be payable to an owners corporation.
32. Fifthly, enforcement action to impose a fine for contempt or the imposition of a penalty (civil or criminal) for breach of an order of the Tribunal under the NCAT Act does not result in a private applicant being entitled to recover the fine or penalty (even when authorised to commence proceedings by the Attorney General or his delegate under s 75): see generally Part 5 of the NCAT Act including when involving contempt (s 73) (to which s 4(1)(a1) Fines Act applies) or as a civil penalty (ss 72 and 77).
33. Sixthly, the grant of a private right to commence proceedings for the imposition of a civil penalty does not, because of that fact, lead to the conclusion that the applicant is to benefit from the penalty as well as the order about which penalty proceedings are brought. Absent an express power, the implication of such a power would promote the bringing of civil penalty proceedings by an applicant for personal gain and permit an applicant to obtain a benefit beyond compliance with the orders in question and/or to seek retribution against a contravenor.
34. Considering all these matters, it seems to me that in imposing a penalty under s 247A of the SSMA: 1. There is a power to direct to whom the penalty is paid. This power is implied (on the basis of the principle in the TWU Case) because it is necessary to give effect to the power to impose a civil penalty. Alternatively, it is properly an ancillary order that can be made: 1. under s 229 of the SSMA that permits the Tribunal to make an order or decision that provides for any ancillary or consequential matter the Tribunal thinks appropriate"; or 2. under s 29(2)(a) of the NCAT Act, which permits the Tribunal to make an ancillary decision that is defined in s 3 to mean a decision "that is preliminary to, or consequential on, a decision determining proceedings" 1. The power to direct to whom a payment is made involves the exercise of a discretion. The payee is not limited to the State of New South Wales or relevant government Minister, Commissioner or government agency. Such limitation would be inconsistent with the language of s 248 of the SSMA which contemplates such a penalty may, at least, be paid to an owners corporation; 2. There is no specific limitation as to whom payment can be directed. However, the discretion is to be exercised judicially and in a manner that does justice between the parties and is consistent with the grant of power and its purpose. The purpose is that set out by the High Court in the Fair Work Case and Pattinson identified above. 3. In the absence of an express legislative provision and having regard to the fact the Legislature: 1. did not adopt the language of s 205 of the 1996 Management Act (which referred to damage) when enacting s 247A; 2. (b) enacted s 147(6) of the SSMA, which changed the test from that provided in s 205, and instead provided for payment to an owners corporation applicant unless otherwise ordered, there is no basis to infer the Legislature intended that the test in s 205 should operate to constrain or regulate the power to direct to whom a civil penalty should be paid under s 247A: Vickery v The Owners - Strata Plan No 80412 [2020] NSWCA 284 (Vickery) per Basten JA at [51]. 1. The discretion is to be exercised having regard to the following considerations: 1. A civil penalty should ordinarily be payable to the Commissioner, being the delegate performing various regulatory functions under s 256 of the SSMA. In this regard, unlike s 147(6), there is no provision requiring payment to the owners corporation, if applicant, unless otherwise ordered or to any other applicant; 2. A civil penalty may be paid to an owners corporation where such payment is properly categorised as compensation to the owners corporation for performing a regulatory role. However, unlike s 147(6), where an applicant is an owners corporation there is no presumption or starting position that a civil penalty is to be paid to an owners corporation applicant in respect of a penalty imposed under s 247A of the SSMA; 3. A civil penalty may be paid to an individual or owners corporation where the applicant for penalty has suffered loss or damage, other than costs of bringing proceedings which are regulated by the NCAT Act, or where it is appropriate in the circumstances of the case to make such an order; 4. A civil penalty should not be directed to be paid to an owners corporation or other applicant where it is properly seen as a windfall or as a form of retribution favouring the applicant. This would be contrary to the purpose of civil penalties and the views expressed by the High Court in the Fair Work Case and Pattinson referred to above. 1. In imposing a civil penalty, the Tribunal should specify by order the person to whom the penalty is to be paid and when it is to be paid.
35. Applying these principles to the present case, the applicant owners corporation said the penalty should be paid to it. Reliance is placed on the following matters: 1. Mr Taylor made changes on his Lot and in and around common property that were not authorised; 2. There has been damage by water ingress to the lot below. As to water ingress, reference was made to the finding of the Tribunal in the original proceedings for which reasons were given (June reasons).
36. As noted above, the Commissioner made no submission as to whom the penalty should be paid in this case. The respondent simply made reference to the NCAT Act and that a penalty under that section was a debt to the Crown.
37. While the June decision does record moisture ingress to the unit below, there is no evidence provided in the present proceedings of any loss or damage suffered by the owners corporation which would warrant an order directing payment to it. Also, there are no circumstances to which the applicant has otherwise pointed that would suggest the penalty should be paid to it. The fact the June order was made in favour of the applicant or that there was circumstances justifying the making of that order are not of themselves sufficient to warrant an order for payment of the penalty to the owners corporation in this case.
38. Accordingly, I am not satisfied an order should be made directing the penalty be paid to the applicant. Rather, it should be paid to the Commissioner.

Further comments

1. As is evident from the analysis above, the failure to re-enact a section of the type found in the now repealed s 205 of the 1996 Management Act, and the different wording in s 147(6) of the SSMA is, in my view, an example of the difficult task of statutory interpretation which Basten JA (as he then was) described in Vickery at [2].
2. It is hoped that the Legislature might consider whether changes to the SSMA should be made to clarify such matters of controversy and simplify the process which a party is required to undertake in enforcing orders of the Tribunal under the civil penalty provisions of the SSMA.
3. Lastly, despite the difficulties and complexity arising in this matter, the Tribunal is indebted to the Commissioner for intervening, providing comprehensive submissions and assisting the Tribunal in the resolution of these proceedings.

Whether an order for costs should be made in favour of the applicant in these proceedings

1. The applicant seeks costs of these proceedings. Initially, the applicant claimed a total of $4,630.80, being the strata agent's fees in representing the applicant in the Tribunal proceedings in the amount of $2,430.80 and the costs of an expert's report in the sum $2,200.00.
2. However, the applicant withdrew the claim for the expert's report which was not admitted into evidence in the proceedings.
3. The final position of the applicant was that a lump sum award should be made for the agent's fees in the sum of $2,430.80.
4. Section 60 of the NCAT Act operates in respect of the present proceedings. Unlike the 1996 Management Act, the SSMA is silent on a party's entitlement to costs in civil penalty proceedings under that Act. Westbury v The Owners - Strata Plan No 64061 [2021] NSWCATEN 3 (Westbury) dealt with costs of civil penalty proceedings where s 60 applies.
5. The applicant said the following represented special circumstance warranting an award of costs in its favour: 1. The respondent's conduct caused disadvantage in that he was unwilling to comply with the Tribunal's orders, the subject of the penalty proceedings and did not provide submissions in these proceedings in the time required by the Tribunal's directions; and 2. The respondent failed to appear at the hearing on 2 December 2022.;
6. In addition, it will be evident from the various decisions that have been made in this application that there were complex legal issues to be resolve.
7. As said in Westbury at [207] and following, while penalty proceedings are not a special category of cases for the purpose of s 60(3)(d) of the NCAT Act, the nature of the proceedings being ancillary and for the purpose of securing compliance with earlier orders is a relevant consideration when determining if special circumstances exist.
8. To the extent the applicant's first submission contemplates a costs order as some kind of "punishment" for non-compliance with the original orders, this submission should be rejected. This is because costs are compensatory in nature: Latoudis v Casey (1990) 170 CLR 534 (Latoudis) per McHugh J at 567 and Oshlack v Richmond River Council (1998) 193 CLR 72 (Oshlack) per McHugh J at 97.
9. However, the Tribunal accepts that there are special circumstances warranting an award for costs in the present case. These circumstances include the respondent's failure to comply with the June order, the consequential need for this application and the complexity of the issues raised.
10. The applicant applies for a lump sum award. There is power to make such an award, the principles applicable being set out in cases such as 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd [2017] NSWCATAP 29 at [35]; Commissioner of Police v Robinson (No 2) [2022] NSWCATAP 280.
11. In the present case, the amount sought is $2,430.80, being the agent's fees of attending to these proceedings on behalf of the applicant. It was not suggested such fees are not recoverable or that they are unreasonable in amount.
12. There is no reason these fees should not be paid by the respondent and there is no reason to further protract these proceedings by requiring an assessment.
13. An order will be made for these costs to be paid by the respondent to the applicant.

Orders

1. The Tribunal makes the following orders: 1. The penalty of $3,850.00, imposed by order 1 made 9 September 2022, is to be paid to The Commissioner of Fair Trading, Department of Finance, Services and Innovation immediately. 2. The stay provided by order 2 made 9 September 2022 is dissolved. 3. The respondent is to pay the applicant the amount of $2,430.80 for costs of these proceedings, such amount payable immediately.

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

Amendments 28 November 2023 - Formatting amendments and citation correction. 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: 28 November 2023