This is a decision on an application for costs made by the respondent in these proceedings. The proceedings were commenced by application filed by Mr Martin Wainberg on behalf of the applicant on 11 April 2014 and were withdrawn by Mr Howard Hilton on behalf of the applicant at the hearing on 9 February 2015.
At that time the respondent's representative advised the respondent would be seeking a costs order. The parties' representatives agreed that the issue of costs should be determined "on the papers" following a period for submissions.
As the submissions period has now expired the file has been referred to me for a decision on costs. A short written submission on the issue was filed by the respondent's representative on 23 February 2015. No submission has been received from the applicant.
[2]
JURISDICTION
The Tribunals power to award costs is set out in the Civil and Administrative Tribunal Act 2001 s 60, which is in the following terms
60 Costs
(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 Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(5) In this section:"costs" includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
The Tribunal's power to award costs is further modified by the Civil and Administrative Tribunal Rules, rule 38. However, there is no suggestion that rule has any application in the present circumstances.
38 Costs in Consumer and Commercial Division of the Tribunal
(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.
(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if:
(a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or
(b) the amount claimed or in dispute in the proceedings is more than $30,000.
RESPONDENT'S CASE
Yarraford Pastoral Company Pty Ltd v Ian Wise [2015] NSWCATCD 41 | Case summary | Zoe
Due to undue delay by the applicant in pursuing this claim, the file had been designated by the Tribunal as a "red dot" file (being in excess of the Tribunal's performance criteria) and had been transferred to Sydney. However, on 23 December 2014, Principal Member Harrowell, sitting at Gunedah had made directions requiring the parties to file and serve submissions in relation to any perceived jurisdictional issue.
The respondent necessarily engaged counsel and filed a written submission with affidavit and annexures in compliance with the directions. The applicant did not comply with the directions and sought to withdraw its application just prior to the hearing on 9 February 2015.
At the hearing, the application was dismissed pursuant to the Civil and Administrative Tribunal Act 2013, s 55(1)(a) as being withdrawn.
The Tribunal has jurisdiction to award costs in "special circumstances" (s 60(2)).
In considering the matters set out under s 60(3) the Tribunal should, in the circumstances of this case, conclude that there have been special circumstances and that those circumstances warrant the making of a costs order in favour of the respondent on an indemnity basis.
The respondent's submission was that the applicant had
Unnecessarily disadvantaged the respondent by failing to address the jurisdiction issue at an early date, by contradicting findings made against it by the Local Court, by prolongation of the proceedings due to unavailability of it's managing director, by continued failure to formulate the claim in such a manner that the respondent was able to prepare a defence and by disengaging at the last moment causing unnecessary concern, inconvenience and cost to the respondent.
Unreasonably prolonged the proceedings by failing to prosecute the matter, to deal with the jurisdiction issue promptly or to properly formulate it's claim,
The applicant's claim, based on the un-contradicted submissions filed by the respondent was not maintainable and was otherwise misconceived.
Further, the respondent's submission was that the applicant in behaving in the manner it did was in breach of its obligation pursuant to s 36(3) to facilitate the just, quick and cheap resolution of the issues.
The respondent sought costs on an indemnity basis and provided evidence that the respondent's costs amount to $5,996.10.
[3]
FACTS
The application was filed in the General List of the Tribunal on behalf of the applicant on 11 April 2014. The application did not specify what orders were sought.
The matter came before the Tribunal on 23 July 2014 at which time directions were made granting leave to the applicant to amend its claim and requiring the applicant to provide details of the claim and to provide copies of documentary evidence to be relied on. The relevant legislation was brought to the attention of the applicant and the parties were granted leave to be legally represented.
The applicant did amend the claim by seeking orders in the sum of $71,736.99, a sum well in excess of the $40,000.00 jurisdictional limit of the Tribunal, and otherwise appears to have complied with the Tribunal's directions by providing copies of the affidavit and other material upon which it relied.
A hearing scheduled for 11 September 2014 was adjourned on request of the applicant's representative. The parties were requested to provide their unavailable dates for December, January and February. Both applicant and respondent had difficulty providing dates during that period when all would be available for a hearing.
The file was reviewed by Principal Member Harrowell on 23 December 2014 and it was noted that there was a jurisdictional issue relating to whether the claim (in part) may not come within the definition of a "consumer claim". That issue was identified for the parties who were directed to file submissions and evidence in relation to the issue by 31 January.
The respondent filed a comprehensive submission with evidence in compliance with that direction. There was no response from the applicant.
The matter was set down for hearing on 9 February 2015 and the parties were notified. The applicant sought an adjournment of the hearing "until April 2015" but provided no reason in support of that application. The application for adjournment was refused.
At the hearing on 9 February 2015 both parties were represented as noted above. The applicant's representative advised the Tribunal the applicant wished to withdraw the application and it was accordingly dismissed pursuant to s 55(1)(a).
[4]
APPLICATION OF RELEVANT LAW
Pursuant to the Civil and Administrative Tribunal Act s 60(1) the starting point in any matter before the Tribunal is that each party is to pay its own costs. However, that position is modified by s 60(2).
Pursuant to that provision the Tribunal may make a costs order but only if satisfied that there are "special circumstances" warranting an award of costs. The section goes on to set out (at s 60(3)(a) -(g)) matters to which the Tribunal may have regard in considering whether or not there are "special circumstances".
There is no statutory definition of "special circumstances" but the Court of Appeal considered those words as they appeared in the Administrative Decisions Tribunal Act in Cripps v G and M Mawson [2006] NSWCA 84. The Court held that there is no requirement that the circumstances be extraordinary or exceptional. It is sufficient to satisfy that wording if the circumstances are "out of the ordinary".
[5]
CONCLUSION
In this case I am satisfied that the circumstances are indeed "out of the ordinary" and that they come within the meaning of "special circumstances" for the purpose of s 60(2).
The applicant filed its application on 11 April 2014 but from that time until it was withdrawn on 9 February 2015 some ten months later the applicant failed to properly articulate a claim that could be dealt with by the Tribunal or for which the respondent could properly prepare a defence.
The claim, to the extent that it was eventually articulated, was well in excess of the Tribunal's jurisdiction and although no determination was made on the issue, also appeared to be at least partially outside the definition of a "consumer claim" and therefore not within the Tribunal's jurisdiction.
These issues were brought to the attention of the parties who were then required, by direction of Principal Member Harrowell, to respond. The respondent did so but the applicant ignored that direction.
I am satisfied that at no time did the applicant have a maintainable claim before the Tribunal. The applicant had a duty pursuant to s 36(3) to co-operate with the Tribunal in giving effect to the "guiding principles" referred to in s 36(1) but made no attempt to fulfil that obligation.
The net effect of the applicant's failings has been that the respondent has unnecessarily been involved in litigation that he was obliged and entitled to defend. The respondent however, was never in a position to properly defend the matter because of the applicant's conduct.
For these reasons I am satisfied that there are special circumstances that warrant an award of costs.
The Tribunal, pursuant to s 60(4), may determine the basis and extent of the costs to be paid and may order that costs be assessed.
In the circumstances, and in compliance with the guiding principle to facilitate "just, quick and cheap resolution of the real issues", I am satisfied that it is not desirable to involve the parties in any further proceedings and therefore, based on the uncontested evidence provided by the respondent, I determine the respondent's costs to be $5,996.10.
[6]
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
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Decision last updated: 11 June 2015