Tuffy v Vaughan [2003] NSWSC 475 | Case summary

REASONS FOR DECISION 1 Mr Tuffy disputed the regularity of the election of Ms Leigh Vaughan, Mr John Weate and Ms Linda Gill as councillors of the Great Lakes Shire Council. He applied to the Tribunal under s 329 of the Local Government Act 1993 for orders for their dismissal from civic office. At the end of the three-day hearing at Taree before a three-member panel of the General Division, the Tribunal dismissed the application. See Tuffy v Vaughan & ors [2009] NSWADT 316. 2 The first and second respondents obtained an award of costs 'as agreed or assessed'. The third respondent, Ms Gill, had appeared without legal representation. She obtained an order for reimbursement of expenses in the amount of $2,708.65. See Tuffy v Vaughan & ors (no 2) [2009] NSWADT 242. 3 An appeal by Mr Tuffy has been dismissed for want of jurisdiction. See Tuffy v Vaughan (GD) [2009] NSWADTAP 75 (made ex tempore, 24 November 2009; written reasons published, 22 December 2009.) This decision is supplementary to that decision. 4 At the close of the ex tempore reasons, Mr John Vaughan, solicitor for the first two respondents, Ms Vaughan and Mr Weate, foreshadowed an application for his clients' costs wasted in respect of the purported appeal. Directions were made. 5 On 7 December 2009, Mr Vaughan filed submissions on behalf of his clients. There has been no application or submissions from Ms Gill. On 17 December 2009 the appellant filed submissions opposing any order. The appellant's submissions were prepared by the non-lawyer agent who has represented him throughout these proceedings, Dr Graeme Wells. Legislation 6 Under s 329(6) of the Local Government Act, the Tribunal 'may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 [ADT Act] in respect of proceedings commenced by an application made under this Part'. While the appeal was struck out, the making of the appeal gave rise to proceedings before the Appeal Panel. 7 The Appeal Panel has jurisdiction for the purpose of dealing with a respondents' costs application in respect of such proceedings: see for an authoritative consideration of this issue, Wolinski v HIA Insurance [2003] NSWSC 475 (Harrison M) at [26]-[45] (dealing with a similar question in respect of the costs powers of the Consumer, Trader and Tenancy Tribunal). 8 The usual rule in the Tribunal is that each party bears their own costs in the proceedings: s 88(1). The general rule is subject to the qualification that 'the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following [factors]': s 88A(1). Various factors are set out, i.e.: '(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.' Submissions 9 The applicant respondents refer to the decision dismissing the appeal. They note that there was no legal basis for pursuing an appeal against the costs award made by the General Division. The appeal should not have been brought, and the respondents were put to further trouble, time and expense. 10 Their submissions also refer to the comments made by the General Division in its costs decision, the No 2 decision, at [34] and [35]: '34 Mr Tuffy's submissions in answer to the costs applications of Ms Vaughan and Mr Weate do not meet the substance of their claims against him. Rather, he gives a long dissertation on the procedural history. They appeared more designed to demonstrate that he had not caused unnecessary delay. Be that as it may, he did not justify in any material fashion the decision to bring these proceedings which were essentially founded on, at best, trivialities and, at worst, nothing at all but speculation. 35 When subjected to close scrutiny, Mr Tuffy's claims against Ms Vaughan and Mr Weate were revealed to be so flimsy as to provoke the suspicion that his true motivation was not 'the public interest'. The absence of any evidence to support a finding in regard to the second element of an application under s 329 meant that the application was hopeless. It is relevant in our view that Mr Tuffy was aware from the outset that the second element was critical to the success of his application and that the onus of establishing that element rested with him.' 11 They submit that the appeal was misconceived and vexatious, and had no basis in fact or law. 12 The appellant's principal submission is that the bringing of the application was in the public interest. In the appellant's opinion there were arguable breaches of electoral law that needed to be addressed. Referring to factor (a), and the various items listed there, he submitted that he had not behaved in a procedurally disruptive way during the preparation for the Tribunal hearing or the appeal hearing. The respondents' submissions do not make any criticism of that kind. 13 The appellant's submissions go on to make references to the evidence in the proceedings before the Tribunal, and contain various criticisms of the Tribunal's decision. Much of this material seeks to re-agitate the case made before the Tribunal. The submissions are 45 pages long, with eleven annexures. Assessment 14 As was noted in La France v Clarence [2004] NSWADT 256: '62 …[I]t is well known that members of Councils do not receive significant payments for their services …. Members of Councils are forced to draw on their own financial resources to meet applications of this kind, unless those that endorsed them are prepared to reimburse the cost. They may not have the marginal benefit that commercial respondents enjoy of being able to claim legal costs as a business expenditure. In these circumstances, they should not be put at the risk of an application that is not even arguable.' 15 In my view, the bringing of the appeal was so meritless that it can properly be regarded as vexatious (see factor (a)(vi) in s 88(1A)). There was simply no statutory right to bring such an appeal. It has unnecessarily prolonged the contest over the respondents' election (see factor (b)). It was framed in a way that only put in issue the costs element of the Tribunal's decision. 16 Notwithstanding my ruling made on 24 November 2009 that there is no jurisdiction to entertain such an appeal, the appellant's submissions of 17 December 2009 have not confined themselves, as they should have, to the narrow question of the fairness of making a costs award in favour of the applicant respondents. Instead, once again, the opportunity to make submissions has been used as a platform for the ventilation of grievances with the merits of the Tribunal's decision. Conduct of this kind would be unacceptable from a lawyer representative, and would be likely to be seen as unprofessional conduct. In my view, the excessive nature of the submissions on the present occasion is a matter to be kept in mind if Dr Wells seeks leave in future to appear as a non-lawyer agent in the Tribunal (see ADT Act, s 71(2)). 17 The solicitor for the applicant respondents has given an account of the amounts he claims by way of costs. They divide into: perusal of the appellant's submissions (1 hour); discussing submissions with clients to obtain instructions, drafting responses and contacting Dr Wells (1.2 hours); telephone hearing of the appeal, 24 November 2009 (40 minutes); and research for the purpose of the present costs submissions, and settling submission - for a total of $1,500 plus GST. I accept these as reasonable and fair claims. Order That the Appellant pay the First and Second Respondents' costs of the appeal in the amount of $1,650 (being $1,500 plus GST).

Tuffy v Vaughan

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Cited By (6)