On 10 December 2021 we published our decision with respect to this appeal. The appeal was dismissed. Directions were made for the Respondent to make an application for an order for costs of the appeal within seven days of the publication of our decision and for the Appellant to file and serve submissions in opposition within seven days thereafter. The directions included a direction that the parties should address the question of whether the Tribunal may determine costs on the papers and dispense with a hearing on costs.
Since then, we have received submissions from the Respondent seeking an order for costs of the appeal. In addition, we have received submissions from the Appellant. The substance of those submissions is summarised in the following paragraphs.
[2]
Respondent's Submissions
The Respondent seeks leave to rely on the affidavit of Kiri Mattes affirmed 16 December 2021and submits that the Appeal Panel should be satisfied that the Respondent's application for costs can be adequately determined on the papers in the absence of the parties. The Respondent's evidence is primarily documentary in nature going to procedural matters and does not lend itself to cross-examination. The Respondent's submission is that the Tribunal should make an order under s 50(2) of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
The Respondent relies upon s 60 of the NCAT Act which enables the tribunal to make an order for costs where there are special circumstances and submits that "special circumstances" are circumstances that are out of the ordinary but need not be those which are exceptional or extraordinary: Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250 at [17].
The Appeal Panel is required to determine whether any of the factors in s 60(3) of the NCAT Act are made out sufficiently to amount to "special circumstances" justifying departing from the rule that each party is to bear their own costs : Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]. The Respondent submits that factors referred to in s 60(3)(a), (c), (e), (f) and (g) are relevant to the Appeal Panel's assessment of whether there are special circumstances in this proceeding.
The Respondent relies upon s 60(3)(a) and submits that the Appellant's conduct of the appeal has unnecessarily disadvantaged the Respondent. In support, the Respondent relies upon an affidavit of Kiri Mattes dated 16 December 2021. The deponent is a solicitor employed by the Crown Solicitor. The affidavit refers to a number of factual matters which the Respondent says unnecessarily disadvantaged the Respondent. This includes the failure of the Appellant to serve material on the Respondent's legal representative or to include the Respondent in correspondence to the Tribunal even after having been expressly asked to do so: see the Mattes affidavit at [5], [9], [11] and [12]. Further, the affidavit provides evidence that the Appellant declined to serve the Respondent with a sound recording of the hearing on 19 May 2021 (being a hearing relevant to the substance of the appeal) notwithstanding directions made by the Tribunal and the Appellant's reliance on the sound recording in the Appellant's written submissions: see Mattes affidavit at [20]-[23]. The submissions make reference to the late service of the Appellant's evidence and submissions in the Appellant's foreshadowed intent to cross-examine the Respondent's legal representative in circumstances where it is said that there could have been no legitimate forensic purpose for doing so.
The Respondent also relies upon s 60(3)(c) and (e) and contends that the appeal was frivolous and lacking in substance. The Respondent draws attention to the fact that the Appeal Panel recorded that the Appellant purported to appeal 24 "decisions" said to have been made by the Tribunal in a directions hearing on 14 May 2021. The Appeal Panel declined to deal with some of the complaints made by the Appellant on the basis that they were irrelevant and wide-ranging straying from the decisions, which were the subject of the appeal and which were also unsupported by evidence. The Respondent submits that in respect of the decisions which the Appeal Panel considered capable of review, the Appeal Panel concluded that those decisions had been rendered moot as they had no continuing effect or operation with respect to the administrative review proceedings initiated by the Appellant.
The Respondent submits that the Appellant's appeal was entirely without merit and in respect of the grounds of appeal which were considered capable of consideration by the Appeal Panel, those grounds were, as stated, entirely without merit. The Respondent's Reply to Appeal identified the futility of the appeal, but the Appellant persisted with the appeal.
The Appellant also relies upon s 60(3)(f) and s 36(3) .
in respect of s 60(3)(g) of the NCAT Act the Respondent submits that the Appellant's appeal has caused extensive and unnecessary delay to the conduct of the proceedings below. Those proceedings were adjourned to enable the Appellant to conduct the appeal and that adjournment continued throughout the balance of 2021.
The Respondent submits that the Appeal Panel should exercise its discretion to award costs in the circumstances identified in the submissions and in the Appeal Panel's decision. Costs are compensatory and the Respondent contends that it should receive partial compensation for the expenses incurred in defending a "futile appeal". The Respondent seeks an order for costs in the fixed sum of $5,000. This figure is said to constitute two thirds of the total costs incurred in the conduct of the appeal. The Respondent contends that that sum is relatively modest and avoids the otherwise protracted process of having costs assessed.
[3]
Appellant's Submissions
The Appellant has filed and served his response to the Respondent's submissions concerning costs of the appeal. In the following paragraphs we summarise the Appellant's submissions.
Firstly, the Appellant makes application to have certain questions of law referred to the Supreme Court. We do not propose to deal with that application. It has no relevance to the Respondent's application for an order for costs of the appeal. Secondly, the Appellant makes application for a written statement of reasons. Such an application has already been made and a written statement of reasons has been provided with respect to those decisions made orally during the course of the appeal hearing.
The Appellant then makes submissions concerning the costs of the appeal. He submitted that he was at a significant disadvantage over the Respondent because he is a "self-represented, non-legal processional [sic], resource-poor, time-poor forced Appellant". He contends that the provisions of the NCAT Act are contradictory and misleading and that it was difficult for him to make submissions. Further, he contends that the appeal caused no detriment to the Respondent and that the appeal was "wholly about the member at first instance".
The Appellant submits that the standard procedure for the Tribunal in matters arising from the Government Information (Public Access) Act 2009 (the GIPA Act) is that each party is responsible for their own costs.
The Appellant further contends that he has had insufficient time to prepare his submissions and that he therefore wanted to make further submissions at an oral hearing of the Respondent's costs application. His submissions were received on 19 January 2022. They are lengthy and not reflective of being prepared within an inadequate time period.
In respect of the Respondent's costs application and the affidavit of Ms Mattes, the Appellant submitted that he should have the right to cross-examine Ms Mattes on her affidavit. The Appellant's submission states that it is not his preference to seek a further hearing but that there are serious issues which remain unresolved and which prejudice the Appellant's rights.
The balance of the submissions constitute a broad-ranging set of criticisms about the Tribunal's procedures, Ms Mattes and the member at first instance. To that extent, the submissions appear to be an attempt to revisit the merit of the appeal. None are relevant to whether there should be an award of costs of the appeal.
[4]
Consideration
In order to obtain an order for costs of the appeal, the Respondent must persuade the Appeal Panel that the usual provision (contained in s 60(1) of the NCAT Act), namely that each party is to pay their own costs, should not prevail and that the Tribunal should decide that there are special circumstances warranting an award of costs of the appeal .
As the Respondent's submissions indicate special circumstances are circumstances that are out of the ordinary but need not be circumstances which are exceptional or extraordinary. Section 60(3) provides that when the Tribunal is determining whether there are special circumstances warranting an award of costs the Tribunal may have regard to those matters set out in subparagraphs (a) to (g). The Respondent in these proceedings relies upon subsections (a), (c), (e), (f) and (g).
The Mattes affidavit is relevant to our decision and we give leave for the Respondent to rely upon it.
Insofar as subsection (a) is concerned we are satisfied that to some extent the conduct of the Appellant unnecessarily disadvantaged the Respondent. The Appellant did not serve the material upon the Respondent when he should have and the Respondent was forced to obtain material from the Tribunal including the sound recording.
The Respondent relies upon subsections (c) and (e). In substance the Respondent submits that the appeal had no tenable basis in fact or law and was frivolous or otherwise misconceived or lacking in substance. It is clear from our reasoning in the decision we published on 10 December 2021 that this submission has substance. At [35] we stated that the appeal was unnecessary and wasteful of the resources of the Respondent and of the Tribunal. The substance of our decision was that the appeal was moot in that it was an appeal against orders that had no ongoing practical effect upon the Appellant. Related to this aspect of the appeal is the contention made by the Respondent that the Appellant failed to comply with the duty imposed by s 36(3) of the NCAT Act. This matter is referred to in s 60(3)(f). Section 36(3) requires a party to proceedings to give effect to the "guiding principle" which requires the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In our view the appeal did nothing for the just, quick or cheap resolution of the real issues in the proceedings at first instance. Indeed, it had the effect of delaying finalisation of those proceedings.
For the reasons submitted by the Respondent, we are of the view that special circumstances exist in relation to the Appellant's initiation and conduct of the appeal and that those circumstances are special circumstances that warrant an award of costs of the appeal.
The Respondent seeks an order for a fixed sum rather than an order for costs in an amount to be assessed or as agreed. In our view that is reasonable and appropriate in the circumstances because it avoids the delay and further expense in finalising costs, which would result from an order requiring costs to be assessed. The amount sought is $5,000 in circumstances where the Mattes affidavit suggests that fees charged to the Respondent are in the order of $7,800. An award of $5,000 would, in our opinion, only partially compensate the Respondent for costs incurred in the appeal and would appear to be more than fair to the Appellant.
The Appellant's submissions sought a further hearing and an opportunity to cross-examine Ms Mattes. We are of the opinion that the issues with respect to costs of the appeal may be determined on the papers and that a hearing may be dispensed with. We see no purpose in permitting the Appellant to cross-examine Ms Mattes. Her affidavit recording the factual steps taken in the appeal proceedings. On a reasonable assessment it does not appear to assert facts likely to be contested. Her evidence on the amount of legal fees charged is not evidence that would, through cross examination, yield concessions in favour of the Appellant. The Appellant may disagree with aspects of the amount charged but the evidence is that an amount a little under $8,000 has been charged and that an amount which is considerably less ($5,000) is being claimed. In our view, no purpose can be served by wasting further time and resources on cross-examination.
[5]
Orders
Accordingly, we make the following orders:
1. A hearing on costs of the appeal is dispensed with.
2. The Appellant is to pay the Respondent's costs in the sum of $5,000 within 21 days hereof.
[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
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: 29 March 2022