Wickremeratne v Van de Merwe

NCAT Appeal Panel|2021-10-20

Introduction

These reasons deal with an application for costs.
The background to this application appears in our reasons for decision Wickremeratne v Dr Ina Van der Merwe t/as Balgowlah Family Practice [2021] NSWCATAP 161.
We upheld the Appellant's appeal and remitted the whole of the proceedings to a differently constituted Tribunal for a new hearing and redetermination of the Appellant's application in accordance with the evidence previously adduced to the Tribunal, the new evidence allowed in the appeal and such further evidence as the Tribunal may allow.
We gave directions for the filing of submissions in the event that the Appellant sought an order for costs. We also indicated that those submissions should indicate whether or not the respective party opposed us dealing with the application for costs "on the papers" and without a hearing.
Neither party opposed that course, so pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) we order that a hearing be dispensed with as we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions provided to the Appeal Panel.

Appellant's submissions

The Appellant's submissions are short and may be set out in full. The Appellant submits: I submit there are special circumstances for an award for costs of the appeal in my favour. 1. The proceedings are complex in that they involve technical issues arising from dental treatment which have required expert evidence and lengthy background information and detailed submissions 2. The complexity is reflected in the decision of the Appeal tribunal in that a number of defects were found in the respondent's expert's report, deficiencies in the respondent's records, substantial errors identified in the factual assessment by the tribunal and issues with the legal principles applied to the case. 3. The initial hearing was delayed due to the respondent failing to respond to the initial claim to the tribunal. By the initial hearing date no response had been received and the tribunal was required to telephone the respondent's surgery. The respondent was unavailable even though the tribunal and myself had given her notice of the hearing date and timetable for a response. It was only after the hearing was adjourned that contact was established with the respondent. Several months passed from filing my application before the respondent engaged with the proceedings. This caused unnecessary delay in reaching a final hearing and caused me unnecessary stress and anguish as I am a pensioner and unable to afford representation. In this respect she failed to comply with s 60 (3) (b) and s36 (3) of the NCAT Act.

Respondent's submissions

The Respondent's submissions are also short and can be set out in full: 1 These submission [sic - submissions] are made in response to the Applicant's [sic - appellant's] submissions received on 12 June 2021, and as ordered by Senior Members Titterton and Gracie on 31 May 2021. 2 The Respondent does not disagree with the submission that the factual, medical, and legal circumstances of this matter were sufficiently complex as to constitute special circumstances under section 60 of the Civil and Administrative Tribunal Act 2013 (NSW). 3 The Respondent also submits that the vast majority of expenses claimed by the Appellant are reasonable. 4 However, the Respondent notes that Order 3 on 31 May 2021 is limited to seeking "an order as to her costs of the appeal", emphasis added. The Applicant [sic Appellant] may only seek costs which were reasonably incurred as a result of the Appeal itself, not the prior stages of the matter. 5 The Respondent, therefore, submits that the Applicant [sic - Appellant] is not entitled to costs in relation to the report of Dr Oliver Colman. The invoice attached to the Submission is dated 1 September 2020, which predates the commencement of the Appeal by almost three months. Dr Colman did not prepare any new report or evidence for the Appeal. It cannot reasonably be said that this invoice can be considered to be part of the Appellant's costs of the Appeal. Furthermore, the invoice has not yet been paid, nor is it payable, as it is "payable on settlement", which has not occurred. 6 The Respondent also submits that the Applicant's [sic - Appellant's] Submission 3 is not a relevant consideration with regard to the current application for Costs of the Appeal. The Respondent does not intend to respond to this submission in any depth, except to say that it does not raise any conduct of any relevance to the Appeal process, and that the Respondent has complied with all timetables and requirements throughout the Appeal process. 7 The Respondent submits that a costs order in the Applicant's favour, in the sum of $301.46, is reasonable.

Consideration

The relevant provision of the Civil and Administrative Tribunal Act 2013 (the Act) dealing with costs is s 60. That section relevantly provides: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (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.
In Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 the Appeal Panel stated at [43]: Section 60 has been considered in many recent decisions: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48; and Rose Nettis Pty Ltd v Three Tall Trees Pty Ltd [2015] NSWCATAP 51. As the Appeal Panel noted in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]: The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]- [31]. From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.
The principle that "special circumstances" are circumstances that are out of the ordinary and do not have to be extraordinary or exceptional has been applied in many decisions of the Tribunal.
In this appeal, the respondent accepts that there are special circumstances warranting an award of costs. While we would not have necessarily agreed that special circumstances were established, as the respondent does not oppose a (limited) award of costs, and the amount involved is a modest one, we agree that the Appellant should have the benefit of a limited costs order which covers her disbursements in prosecuting her appeal.
However, we agree with the Respondent's submission that any costs order should not include the costs of the expert report the appellant relied on before the Tribunal at first instance. That is because, while we have upheld the appeal, the ultimate outcome of the Appellant's application will be determined afresh by the Tribunal (differently constituted). If the Appellant is successful, that will be the opportunity to agitate for a costs order in relation to the cost of the expert report. That is to say, if the Appellant is successful at the rehearing, that will be the occasion to seek an order for the costs of the expert report.
Once again, the Appellant will have to establish that there are special circumstances warranting an award of costs.

Order

The Appeal Panel orders that: 1. A hearing is dispensed with. 2. The respondent is to pay the appellant's costs of $301.46 within 14 days of the publication of these reasons.

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 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: 20 October 2021

At a glance

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Decision date

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Judgment (6 paragraphs)

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Legislation Cited (1)

Cases Cited (7)