Xiao Qing Wu v Fairfield City Council No 2

Materials considered.

1. In deciding this matter I have had regard to the following materials: 1. All the materials that were before me when I made the decision in Wu v Fairfield City Council [2023] NSWCATAD 21. 2. The respondent's application for costs filed on 6 February 2023 to which is attached: 1. The Respondent's submissions on costs; 2. Tax invoice dated 18 December 2022 from the respondent's solicitors to the respondent for costs and disbursements totalling $3,055.34; 3. Letter from the respondent's solicitors to the applicant dated 8 November 2022 warning her that NCAT did not have jurisdiction to hear her administrative review application - originally filed on 13 October 2022 - and that costs would be sought if she continued with the proceedings; and, 4. Copy reply to administrative review application putting jurisdiction in issue. 1. The new application, discussed at par 4 above, which includes a four page statement of grounds and has attached to it: 1. A "list of materials for my application for review." 2. Title searches of the applicant's and her neighbours properties which refers to various covenants and easements affecting the lands including a drainage easement. 3. Copy survey report from Proust & Gardner including drawings which identify the land concerned and related drainage easements. 4. Copy instrument setting out terms of easements and restrictions as to user intended to be created pursuant to s 88B of the Conveyancing Act 1919 -1964, with respect to the development plan for the subdivision in which the applicant's land is located. 5. Extract from Fairfield City Council Policy 4-515 at 4.3 concerning inter-allotment drainage. 6. Copy s 3B.59 of the State Environmental Planning Policy (Exempt and Complying Developments Codes) 2008. 7. A certificate from the respondent under s 149 of the Environmental Planning and Assessment Act 1978 (NSW) (the EPAA Act) concerning a drainage easement relating to the applicant's property.

Issues.

1. The issues to be determined are: 1. Whether I should proceed to determine the issues on the papers and without a hearing? 2. Whether I should disqualify myself from further hearing of this matter? 3. Whether the issue of costs should be determined without a hearing or not? 4. If so, whether the application for costs should succeed?

Should the application be determined without a hearing?

1. Section 50(2) to (4) of the CAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
2. In this case both parties agreed to have the jurisdictional issue decided on the papers: which included the respondent's claim for costs. The consent was made clear in a note to the Tribunal's directions made on 15 November 2022: "By consent, the Jurisdictional issue is to be decided on the papers."
3. In the new application the applicant wrote, at [6]: "I did not consent for my case to be decided on paper. I wasn't told or explain about it. I would have rejected it because English is my second language, face to face communicate in court would have make me understand better. I was disadvantaged by this order without my knowledge."
4. I was not present at the directions hearing on 15 November 2022. There is no note that the applicant requested an interpreter for that hearing or displayed difficulties understanding what occurred. There were directions made for the filing of materials so that the matter could be decided on the papers. It was clear to anyone reading those directions that the jurisdictional issue would be decided on the papers. There is no record of the applicant contacting the Tribunal to complain that she had not consented to a determination on the papers, when those directions were given to the parties. There was no objection to the matter proceeding on the papers, and no assertion that she had not consented to that occurring, in her submissions supporting her administrative review application. Her submissions themselves, while not a model of grammar, conveyed her arguments clearly. Without evidence as to what actually occurred at the directions hearing on 22 November 2022, e.g. an audio recording or transcript, I do not accept that having the matter decided on the papers was not discussed, or that the applicant did not consent to a hearing being dispensed with.
5. I will proceed on the basis that the applicant has previously consented to the jurisdictional and costs issue being determined on the papers, but has now withdrawn that consent.
6. In her written grounds for the new application the applicant restates her grievance against the respondent's decisions which she sought to review. She alleges misconduct by the council officers and by its solicitors in raising the issue of jurisdiction. Her submissions concluded: "In summary, I object Council's application for legal costs because I wasn't provided a fair procedure, in my proceeding by NCAT. I wasn't told or explained that my case will be decide on paper, the substantive and crucial evidence in my submission were omitted. NCAT made an error of law by not taking into account of the substantive legal documents and the applicable legislation."
7. The issues relating to costs are relatively simple ones. Her written communications are clear. I do not accept that the applicant will be disadvantaged if a hearing is not held. Costs issues lend themselves to being determined on the papers and do not usually require oral evidence or involve disputes of fact. Costs determinations are not a vehicle for arguing and rehashing a case already lost, or for agitating complaints and issues more properly raised on appeal. Revisiting those arguments appears to be central to the applicant's desire for an in person hearing. Having reviewed all the materials I am satisfied that, despite the applicant's objection, this is matter that can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing.
8. With respect to the additional issue of whether I should disqualify myself raised in the new application, neither party has taken advantage of the opportunity to make submissions on whether there should be a hearing on that issue. Given the applicant's opposition to costs being determined without a hearing, I have assumed she is likely to take the same view with respect to these issues. Because of the absence of submissions and the simplicity of the arguments relied on, I think this is a matter that lends itself to a determination on the papers. I therefore dispense with a hearing.

Should I disqualify myself?

1. The applicant wants the costs issue determined by a Tribunal member other than me. Her grounds for doing so appear to be that: 1. she is dissatisfied with the matter being decided on the papers as discussed above; 2. the decision contains a reference to a name other than hers which causes her confusion (there is a reference to a different name which is a version control error made by me) which I asked Registry to amend as soon as I became aware of it on 22 February 2023; 3. she claims not to have had a fair hearing or been accorded procedural fairness; and, 4. she disagrees with the decision which she says contains mistakes of law.
2. The application does not allege that the decision is affected by bias or claim that she has a reasonable apprehension that I am biased. The decision contains no findings going to the credit or reputation of the applicant. Aside from her dissatisfaction with the earlier decision the applicant does not allege that I cannot bring an impartial and unprejudiced mind to the fair determination of the costs issue, or that I have prejudged it: Re JRL; ex parte CJL (1986) 161 CLR 342, R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546. In Turner v Kostoglou and Anor [2005] SASC 132 Sulan J considered whether a Magistrate should have disqualified himself from determining the issue of costs in a matter he had already determined, due to perceived bias as a result of adverse finding he had made against a party. Sulan J explained, at [37]: "Once a case has been decided, questions of costs will arise. In the usual case, costs follow the event. Often the judge is required to decide upon what basis costs should be awarded, whether a party is entitled to all the costs or only part thereof, and other questions relevant to quantum. The manner in which the case has been conducted may influence a judge in the exercise of his or her discretion as to the orders that are to be made. The fact that the judge may have made adverse findings against a party is not a basis for the judge being required to disqualify himself or herself from deciding questions of costs. The complaints about the manner in which the magistrate conducted the trial and the complaints about her rulings during the trial, even if substantiated, are not of such a nature or seriousness as to require this court to interfere on the ground of perceived bias.
3. The applicant's complaints about the dismissal decision and the Tribunal's processes will no doubt be dealt with on appeal. They do not form a proper basis for requesting me to disqualify myself. Absent any complaint of bias, conflict or prejudgment, I am not required to disqualify myself. A party cannot dictate the composition of the Tribunal.

The Tribunal's power to award costs in the Administrative and Equal Opportunity Division.

1. Section 60 of the NCAT Act 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. (4) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
2. In awarding costs under s 60 the Tribunal exercises a discretion, which discretion is to be exercised judicially. In finding special circumstances the Tribunal may have regard to the factors set out in s 60(3) of the NCAT Act, although a positive conclusion with respect to those matters does not necessarily mean that the Tribunal must be satisfied that the special circumstances warrant an award of costs. With respect to special circumstances the Appeal Panel in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 explained: 145. The meaning of the term "special circumstances" has been the subject of several decisions in the Appeal Panel (see for example Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Sahade v Owners SP 62022 [2015] NSWCATAP 225; Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 and Gaynor v Burns [2015] NSWCATAP 150). Those cases show that the expression "special circumstances" means circumstances which are out of the ordinary but not necessarily extraordinary or exceptional. Of course, each case will depend on its own facts and the Tribunal may "in a structured exercise of discretion, have regard to the criteria in s 60(a)-(g)": Gaynor v Burns [2015] NSWCATAP 150 at [18]. 146. When one has regard to the criteria in s 60(3)(a)-(g) it is clear, in our opinion, that the conduct of a party, including their subjective motives and conduct of the litigation, can be a relevant factor for the Tribunal to take into account. That subjective motive or conduct could be relevant to most of the criteria set out in s 60(3): s 60(3)(a) - whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party; s60(3)(b) - whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; s 60(3)(c) - the relative strengths or weaknesses of the claims of the parties and whether a claim of a party has no tenable basis in fact or law; s 60(3)(e) whether the proceedings were frivolous or vexatious; and s 60(3)(f) - whether a party has failed or refused to comply with the statutory obligation of co-operation imposed by s 36(3) of the Act. Additionally, a party's subjective motives, conduct or behaviour in relation to proceedings before the Tribunal could be relevant to the undefined "other matters" criteria pursuant to s 60(3)(g)."
3. The objects of the NCAT Act set out in s 3 and the Guiding Principles in s 36 are relevant to the interpretation of the "special circumstances": Chan v Commissioner for Fair Trading [2015] NSWCATAD 62 at [35] to [38]; BHR and BHS v Biripi Aboriginal (sic) Children's Services (No2) [2015] NSWCATAD 109 at [29]; Yammatree Pty Ltd (Applicant); North West Local Land Service [2015] NSWCATAD 221 at [12]- [13].

Brief Outline of Submissions

1. The respondent seeks an order for fixed cost of $2,610.00, plus GST, based on what it submits are special circumstances within the meaning of s 60(3)(c),(e) and (g) of the NCAT Act. These are: 1. That the administrative review application made by the applicant had no tenable basis in fact or law (s 60(3)(c)) as is demonstrated by the finding that the Tribunal had no jurisdiction to hear it and that it was "destined to fail from the start." 2. That the Tribunal dismissed the application under s 55(1)(b) on the grounds that "it is frivolous, misconceived and lacking in substance as the Tribunal does not have jurisdiction…" (s 60(3)(e)). 3. That the applicant failed to heed the respondent's warning that the Tribunal did not have jurisdiction and that costs would be sought if she persisted with the administrative review application. This, it was submitted, amounted to a "special circumstance" under s 60(3)(g).
2. The applicant in reply opposed a costs order being made against her and set out the complaints summarised in par 18 above. She did not dispute that the respondent had warned her that that the Tribunal has no jurisdiction and would be seeking costs if she persisted with her administrative review application.

Consideration

1. I am satisfied that each of the special circumstances relied on by the respondent are established. The application for administrative review was destined to fail, and was entirely misconceived as the Tribunal did not have power to hear it. The applicant brought her claim in the wrong forum. She was warned that this was the case by the respondent from the start, and warned as to the costs consequences. Despite this, she persisted with her application, thereby putting the respondent to the costs associated with defending it. In my opinion, in the light of these special circumstances, this is an appropriate case in which to exercise the discretion to award costs.
2. In STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98, an Appeal Panel summarised the considerations in respect of awarding costs in a fixed sum, as follows: "50. Deriving the relevant principles applicable to ordering costs in a lump sum from those deemed appropriate by the courts, we note that: (1) The discretion is not confined and may be exercised whenever the circumstances warrant its exercise: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]; (2) "The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available.": ibid, at [22]; (3) The power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions. The Tribunal should be confident that the approach taken to estimate costs is fair, logical and reasonable: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160, von Doussa J; (4) The use of the power may be appropriate where the formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628; (5) The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; (6) The assessment of any lump sum to be awarded must consider the complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131; (7) In the exercise of its discretion the Tribunal is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673; (8) A discount of the costs actually incurred or estimated may be applied, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at [76] per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164-165. A discount in the range of 10-30% is typically appropriate: Ross v Padget [2016] NSWSC 1851 at [16] and [21]; Fisher-Pollard by her tutor Fisher-Pollard v Fisher-Pollard [2018] NSWSC 807 at [38]). However, the appropriate order in each case will turn upon the evidence: Hamod v State of New South Wales [2011] NSWCA 375 at [813] per Beazley JA (Giles and Whealy JJA agreeing); (9) On the one hand the Tribunal must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary "fail safe" discount on the cost estimates submitted to the Court: Leary v Leary at 265; (10) Finality to litigation is in everyone's interest. In many cases that factor alone will weigh heavily on whether a lump sum costs order should be made: Edward Ted Lakis and Anor v Michael Victor Lardis and Anor (No 3) [2018] NSWSC 1296 at [57]; Lawcover Insurance Pty Ltd v Muriniti and Newell [2018] NSWSC 558 at [10]; (11) Where a lump sum costs order is appropriate, the Tribunal should take a "broad brush" approach to determining the lump sum: Harrison v Schipp; (12) Requiring the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order." Bechara (T/as Bechara and Co) v Bates [2016] NSWCA 294 at [14]. See also Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 29; Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104 and Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 117.
3. Given the simple issue involved in this case - one of jurisdiction - and the relatively low level of costs involved, which would escalate if put through an assessment process, I think this is a proper case in which to make an order for costs in a fixed amount, subject to a discount of 20% to allow for the usual exigencies, such as costs being allowed on a party/party basis only.
4. As a consequence, I will order the applicant to pay the respondent's costs fixed at $2,088.00, plus GST. This totals $2,296.80.
5. The Tribunal makes the following orders: 1. A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.
6. The applicant shall pay the respondent's costs of this administrative review fixed at $2,296.80.

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: 17 May 2023