Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48

Cases cited: Appellants v Council of the Law Society & Anor [2011] ACTSC 133

CIC Australia Ltd v ACT Planning and Land Authority & Ors [2013] ACTSC 96

Trpkovski v Williams Love Nicol Lawyers Pty Ltd [2014] ACAT 13

Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 18

1. The appeal application, being discontinued, is dismissed.

1. The respondent's application for costs is dismissed for the reasons attached.

(a) The appeal tribunal made a preliminary decision about three of five grounds of appeal raised by Williams Love & Nicol Lawyers Pty Ltd (the appellant) on 16 March 2016. The decision was reported as Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 18.

(b) The tribunal dismissed the three grounds and ordered that the application for appeal be re-listed so that the balance of the application could be considered and determined. The appellant however, sought to discontinue the appeal.

(c) The respondent applied for an order requiring the appellant to pay her costs which included costs of legal representation (the costs application). The appellant opposed the costs application. The parties agreed that the costs application should be decided 'on the papers' that is, by the appeal tribunal members considering the costs application and the written submissions that each party made in relation to it, without holding a hearing.

(d) On 17 May 2016 the appeal tribunal ordered that the appeal, being discontinued, be dismissed and also dismissed the costs application. The parties were provided with a short statement explaining why the costs application was dismissed. The statement was not published at the time. The tribunal has decided to publish it now because parties regularly ask questions about the tribunal's power to make orders for costs and the statement may assist to reinforce the interpretation and application of that power. Section 48 of the ACT Civil and Administrative Tribunal Act 2008 is referred to in the statement and is set out here for ease of reference.

(1) The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.

(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. The respondent's application for an order requiring the appellant to pay the costs she has incurred in relation to this appeal is dismissed because the Tribunal's limited powers to make an order for costs do not apply in the circumstances of this case.
2. 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.
3. Her Honour considered the following question:

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)?

1. 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.

1. 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.
2. The circumstances in which the tribunal may make a costs order under section 48(2) of the ACAT Act do not apply in this case.
3. Section 48(2)(a) is not relevant.
4. Section 48(2)(b) does not apply, as the respondent acknowledges in her submissions. The appellant did not cause delay or obstruction before the tribunal, or while it was dealing with the appeal application.
5. Section 48(2)(c) is not relevant here.
6. Section 48(2)(d) provides a power to make a costs order against a party to an application for review of a decision made under certain laws, if the tribunal has dismissed or struck out the application under section 32(2) of the ACAT Act. Section 32 allows the tribunal, on application or on its own initiative, to dismiss or strike out an application that is frivolous or vexatious, lacking in substance or otherwise an abuse of process.
7. The power given by section 48(2)(d) does not apply to this appeal for three reasons.
8. First, acknowledging that the appellant was not successful on any of the grounds considered by the tribunal, the appeal tribunal did not regard the appeal as frivolous or vexatious, manifestly hopeless or otherwise an abuse of the tribunal's process. Secondly, there was no application to the tribunal seeking that the appeal be dismissed or struck out under section 32(2) of the ACAT Act, nor did the appeal tribunal rely on the power in section 32(2) to dismiss the appeal application on its own initiative. Thirdly, this case concerned a civil claim brought by the appellant against the respondent. It was not an application for review under the Heritage Act, or the Planning and Development Act, or the Tree Protection Act.
9. There is no other applicable legislative provision that enables the tribunal to make a costs order in favour of the respondent.
10. Additionally, the respondent argues that the tribunal's decision in the matter of Trpkovski v Williams Love Nicol Lawyers Pty Ltd [2014] ACAT 13 (Trpkovski), provides support for the proposition that the tribunal should award costs in this case.
11. In Trpkovski an original tribunal allowed part of a claim by a law firm, in fact the appellant in this case; for "costs of recovery" in circumstances in which the contract between the parties (as in this case) included a term that provided for the payment by the client of the law firm's costs if action had to be taken to recover amounts owed to it. Terms such as these are often found in legal fees agreements, they are also commonly found in agreements for the payment of school fees.
12. It is submitted that Trpkovski "has had the effect of abandoning the general rule that each party bear their own costs in matters where solicitors are seeking recovery of fees." That is not the case. The Trpkovski decision is simply one that applies the law of contract to the terms of the contract that was in place between the parties. It does not purport to, nor could it, proffer a different interpretation of the tribunal's costs power to that established in CIC.
13. The tribunal does not have inherent power to makes costs orders in certain types of cases. As noted by Refshauge J in Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133 at [89] - [90], citing Dal Pont's Law of Costs, a tribunal's power to order costs must be clearly conferred by statute. Section 48 of the ACAT Act is the only applicable legislative costs power for this matter and as set out above, it does not operate in the circumstances of this case to enable the tribunal to make a costs order in favour of the respondent.
14. The law of contract does not assist the respondent. The contract between the parties does not contain a term that allows the respondent to recover costs she incurs in defending a debt recovery action. There is no express term to that effect, nor could, on any reading of the agreement, one be inferred.
15. The respondent submits that this leads to a situation in which the original 'costs order' made against her is unjust and that the Appeal Tribunal should set aside the order of the original tribunal that she pay part of the appellant's costs. This submission misunderstands the original tribunal's order - the order was not a costs order. It was an order requiring the respondent to make a payment pursuant to the terms of the contract she entered into.
16. In any event, the Appeal Tribunal has no power to set aside this part of the original tribunal's decision in the absence of an application by the respondent to appeal against that part of the decision.