Over the course of two days I dealt with a multitude of interlocutory applications lodged by the appellant in the process of the Tribunal arranging to determine his appeal, which was itself lodged against a decision of the Administrative and Equal Opportunity Division. I dismissed each of the substantive interlocutory applications, for reasons which I subsequently provided in writing: Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53; Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53.
In short, the applications were, to a significant extent, lacking in substance, abuses of process or vexatious.
I made directions with a timetable for the filing of applications and submissions in respect of costs, noting that the Appeal Panel may dispense with a hearing and deal with the issue on the papers. The parties were directed to address that issue in their other submissions, should they wish to.
The respondent made an application for costs and lodged submissions in support of that application in accordance with the timetable. Outside that timetable, on 25 March 2023, the appellant lodged an application for costs and sought an extension of time to rely on that application. No supporting submissions were lodged in support of that application, save to a limited extent as contained in the application itself.
The appellant also sought an extension of time to respond to the respondent's costs application, indicating that a hard copy of his application would be sent with the relevant submissions "a.s.a.p." The respondent opposed an extension of time for the appellant to make an application for costs, but not a "short extension" of time for the appellant to lodge and serve submissions in response to the respondent's costs application. At the time the appellant sought an extension of time to lodge and serve his material in response to the respondent's costs application, he still had almost two weeks in which to make a response in accordance with my directions. It has now been a further three weeks since the timetable for the appellant to make submissions in response to the respondent's application for costs closed. As I will come to, the appellant has still not made meaningful submissions in that regard.
The respondent did not oppose my dispensing with a hearing and determining the applications on the papers. The appellant did, but did not provide any meaningful reason for that opposition. As I am 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, I will make an order dispensing with a hearing.
For the reasons that follow, I will refuse to extend time in respect of the appellant's costs application and for him to respond to the respondent's application, and order that he pay the respondent's costs of the interlocutory applications I dealt with on 30 January 2023 and 21 February 2023, in the fixed sum of $5,000.
[2]
The appellant's applications for an extension of time
[3]
The appellant's application for costs
When making directions in respect of costs on 21 February 2023, I initially made directions for the respondent to make submissions in respect of a costs application made orally on the day, and fixed a timetable. The appellant then asked that the timetable also apply to any costs application he may wish to make, despite not being legally represented at the hearings or successful in his applications. I varied the directions to accommodate that.
The timetable to lodge and serve an application for costs, with supportive evidence and submissions, closed on 8 March 2023. The respondent complied on 7 March 2023. It was not until 25 March 2023 that the appellant lodged his application.
The closest the appellant comes to providing an explanation for his delay is that he says that due to "technical problems beyond his control", he did not advert to his receipt of the respondent's material until 25 March 2023. He does not deny it was forwarded to him on 7 March 2023.
A delay in consideration of the respondent's application by the appellant provides no proper explanation for the appellant failing to comply with my direction as to his own application. Costs applications are not a "tit-for-tat" process but one where a party with a legitimate expectation that they may succeed in an application for costs is given the opportunity to prosecute that application.
What the appellant seeks, if an extension of time is granted, is:
1. That the respondent pay/award the appellant exemplary costs/damages.
2. That the respondent's legal representative CSO pay/award the appellant exemplary costs/damages.
3. That NCAT awards/pays the appellant exemplary costs/damages.
As is apparent from the form of the orders sought, and supported by an extended series of assertions lodged with the application as to why an extension of time should be granted on the application form itself, the appellant's application is a continuation of his assertions as to his poor treatment by the Tribunal, particularly the Registry and the respondent, which I found to be bad in law and, in any event, unsubstantiated in my earlier decisions: see for example [2023] NSWCATAP 53 at [60] - [64].
The application itself would, if allowed, simply be an extension of the vexatious conduct of this appellant in these proceedings. Not only is there no appropriate explanation for the delay in lodging the application, but it is apparent where it was lodged in the face of my earlier findings that it has been made without foundation and is unfairly burdensome on the respondent.
On that basis, it cannot be said that an extension of time is required to avoid a strict insistence on the timetable working an injustice on the appellant: see Gallo v Dawson 93 ALR 479; (1990) HCA 30, per McHugh J at [2].
I will refuse the appellant an extension of time.
[4]
An extension of time for the appellant to reply to the respondent's costs application.
Having regard to the respondent's concession, a short extension of time in order that the appellant might diligently respond, having previously failed to advert to the respondent's submissions, would be appropriate.
However, it has now been over 28 days since the appellant did advert to receipt of the respondent's submission on costs. That was the period I allowed in my previous directions. The appellant has still lodged nothing probative in respect of the costs application of the respondent. What the appellant has lodged, on 10 April 2023, is a ten page explanation for his delay which focusses on his perception of unfairness caused to him by what he refers to as the Tribunal Registry's "unlawful" requirements on his lodgment of material in the Tribunal, which I dealt with in my previous decisions on his substantive interlocutory applications: see [2023] NSWCATAP 53 at [68], [71]; [2023] NSWCATAP 80 at [6], [7]. With it he lodged several other documents to support the assertions in his explanatory letter. Those documents included complaints to the Tribunal in 2022 and a decision about a fee waiver application in 2021. The closest that the material provided came to providing a proper explanation for the appellant's ongoing delay is a reference to the appellant having unsuccessfully sought the sound recording of the hearing I conducted on 30 January 2023. However, three things should be said about that. Firstly, nothing in the material indicates that the appellant has complied with the clearly explained requirements for him to obtain the recording: see [2023] NSWCATAP 80 at [7]. Secondly, where the appellant has had my published reasons for over 30 days in respect of the last decisions given, it is difficult to see how the lack of access to a sound recording prevents the preparation of his submissions. Thirdly, there was nothing to indicate that the appellant had any intention of complying with the Registry's requirements to obtain the recording, which I previously found were "simply procedural matters he needed to comply with", such that I could have any sense of satisfaction that further delay will lead to meaningful submissions from the appellant as to costs, rather than a continuation of what I have found to be vexatious conduct in continuing to agitate issues previously determined.
Later, on 25 April 2023, the appellant lodged another bundle exceeding 100 pages of collated documents which almost solely relate, again, to his concerns about conduct of the Tribunal's Registry and related issues already dealt with by me. The only probative aspect of the bundle , in respect of the respondent's application for costs, is a small part of a 14 page document dated 25 April 2023, headed:
1. REQUEST FOR FINDINGS OF FACT
2. OPPOSITION TO DISMISSAL OF A COSTS HEARING
3. QUESTIONS OF LAW ARISING IN PROCEEDINGS
In that document, the appellant makes complaint about the timetable I set for the parties' submissions, cavils with my earlier findings and decisions to dismiss his interlocutory applications on 30 January 2023 and 21 February 2023, makes further submissions in support of his costs application and asks for more time to make substantive submissions in response to the costs application of the respondent.
In respect of his opposition to my dispensing with a hearing in respect of the applications, the appellant refers to his perception that the issues are complex, his lack of legal training and the imbalance of his position compared to that of the respondent, who is well-resourced and legally represented. The appellant also seeks to rely on his having been "further disadvantaged by a troupe of GSE Act employed registry officers who clearly believe that they are above the law."
Finally, on this topic, the appellant refers to the need for him to provide care to an elderly relative who is in poor health but provides no evidence as to what that care has entailed in preventing him finalising his submissions.
The appellant's concerns in that document do not materially bear on whether the issues in dispute can adequately be dealt with on the papers, particularly as the substantive issues in respect of the respondent's application for costs are not addressed in any meaningful way, beyond criticism of the respondent's conduct which is unsupported and in some respects contrary to my earlier findings. However, I have also had regard to them in respect of whether the appellant should have any more time to respond to the costs submissions of the respondent. I am not satisfied I should allow any more time. Had the appellant simply addressed himself to providing submissions in response to those of the appellant, rather than expansively focussing and expending his efforts on his grievances which have previously been addressed, he could properly have completed his submissions before now.
On that basis, I refuse to extend time for the appellant to make submissions in response to the respondent's application for costs.
[5]
The respondent's application for costs
The respondent relies upon submissions and an affidavit of K Mattes, solicitor.
Relevantly, Ms Mattes deposes that:
1. During the period when the interlocutory applications were being prosecuted, she held the role of Principal Solicitor with the Crown Solicitor's Office;
2. Her hourly rate was $425 per hour, excluding GST;
3. Attendances at hearings on the two dates the interlocutory applications were conducted involved approximately 8.5 hours of actual attendance;
4. On that basis, the respondent's costs were $3,612.50 for attendance at the hearings; and
5. The preparation of the material in support of the application for costs took over six hours, for which a further sum of $2,550 is claimed.
In submissions in support of the application for costs, the respondent says that:
1. The appellant had still not lodged any material in support of his substantive appeal, despite the lengthy history of the matter; and
2. That each of the substantive interlocutory applications was dismissed;
The respondent acknowledges that s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) governs the issue of costs in these proceedings, meaning that I would have to be satisfied that there are special circumstances warranting an award of costs. From the non-exhaustive list of relevant factors in s 60 of the NCAT Act, the respondent submits the following have application:
1. Section 60(3)(c) and (d): 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; and the nature and complexity of the proceedings - The respondent submits that that of the fifteen interlocutory applications determined, seeking various orders, the appellant failed at every turn, demonstrating the clear lack of merit of the applications. Reference is also made to my findings that many of the orders sought were not ones I had power to make and were, in any event, unmeritorious. It is submitted that the sheer volume of unsuccessful applications here constitutes special circumstances warranting an order. In addition, the respondent refers to my findings that several of the applications were abuses of process, in that they were misconceived or brought for a collateral purpose. Additionally, reference is made to my findings, as the applications were prosecuted on an ongoing basis, to some of them being vexatious. The respondent also refers to the decision I cited of Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232, where it was made apparent to the appellant that the persistent making of claims that have previously been found to be bad in law is indicative of the proceedings being brought for a collateral purpose and being vexatious. The respondent concedes that a single finding that an application was abuse of process may not be sufficiently unusual to engage s 60, or warrant an award of costs, but that is clearly not the case here;
2. Section 60(a), (b) and (f): conduct of the proceedings in a way that unnecessarily disadvantaged another party; whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; and whether a party has refused or failed to comply with the duty imposed by section 36(3) - The respondent submits that the appellant's conduct of the applications has unreasonably delayed the process, particularly as the applications were largely unrelated to the respondent and directed to the alleged conduct of the Tribunal's Registry. This is exacerbated by the appellant's propensity to lodge multiple applications and voluminous material, often shortly prior to other listed hearing events. The respondent submits that the cost caused by the appellant doing so, and the complexity of the issues raised, are entirely disproportionate to the proper conduct of an appeal of this nature, and have led to delay. Noting that the appeal was lodged in July 2022 and initially listed for hearing in November 2022, the respondent points to the appellant's ability to lodge several interlocutory applications but no material in support of the substantive appeal as evidence of such conduct. The respondent notes that the last real impediment to the preparation of the appellant's appeal, being production of a transcript of the hearing at first instance, was resolved when the respondent provided that to the appellant in November 2022. The appellant's conduct, the respondent submits, is contrary to his obligation under s 36(3) of the NCAT Act to "…co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal";
3. Section 60(3)(g): any other relevant circumstance - The respondent points to the appellant's conduct of the applications more broadly as being relevant to the issue of costs. In particular, the respondent refers to the appellant's conduct on the first day of the hearings, which I described in Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53 at [95] as "…the appellant, who appeared at his request, by leave, via telephone, refused to stop interjecting and refused to stop making submissions after the time I had allocated for him to do so had finished. My oral reasons could, therefore, not be recorded without interruption. Dealing with the interlocutory applications today took a full day of the parties' time, where the substantive appeal could reasonably be expected to be conducted in a half day." The respondent points to the appellant's failure to ameliorate that conduct on the second day of hearings, which is a correct observation. The respondent says that the appellant's conduct in that regard, and his conduct which I described in those reasons as potentially contemptuous, can also be properly considered to be special circumstances warranting an award of costs, meaning that the appellant should "bear some of the costs that arise from his continued egregious conduct before the Tribunal."
[6]
Costs in a fixed sum
The respondent goes on to make submissions as to why the costs awarded should be in a fixed sum, to which I will return. Notwithstanding the evidence of Ms Mattes, the Respondent suggests an order of a compromised fixed sum in the amount of $5,000.
[7]
Principles relating to costs of the applications
The primary provision governing costs in relation to proceedings in the Tribunal is s 60 of the NCAT Act. Pursuant to that section, each party to proceedings is generally to pay their own costs in applications of this nature. However, pursuant to s 60(2) of the NCAT Act, the Tribunal may award costs if it is satisfied that there are special circumstances warranting it doing so. Section 60(3) provides a non-exhaustive list of relevant factors which might constitute special circumstances.
Each application for costs must be determined on its own merits and the central and overriding principle in any order as to costs is that of doing justice between the parties in each particular case: Moseley v AB (No 2) [2017] NSWSC 1812 at [65] - [66].
Leaving to one side the issue of whether special circumstances warranting an award of costs exist, the relevant principles in respect of the exercise of the costs discretion in interlocutory proceedings are those summarised in Ausino International v Apex Sports [2006] NSWSC 1119, where Campbell J described the usual exercise of the discretion in interlocutory matters as follows:
[55] In contrast, the present proceedings before me are brought on the basis that they are an interlocutory process. The usual order, which is made as to costs concerning interlocutory processes, is that if the plaintiff is the applicant, and succeeds, then the costs of the interlocutory process become the plaintiff's costs in the cause, while, if the plaintiff is the applicant, and loses, the usual order is that the plaintiff pay the defendant's costs of that application.
[56] The rationale for that arises from the way that interlocutory proceedings are intended to advance the final hearing. If a plaintiff has a victory on the way to a final hearing, whether that victory is ultimately one which is fruitful will depend upon whether the plaintiff succeeds in the final hearing. However, if the plaintiff brings an interlocutory application and loses, then that interlocutory hearing is one which will, irretrievably, have cost the defendant money, and the justice of the situation is that the defendant should be indemnified for those costs, regardless of the outcome of the proceedings.
"Special circumstances" are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow J); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. Even if satisfied that there are special circumstances, I must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21].
The fact that the applications were a separate and discrete event in the appeal, which is now complete, may also weigh in favour of making any order that the respondent have its costs payable now, rather than reserved or made costs in the appeal: Fiduciary v Morningstar [2002] NSWSC 432.
Taken together, I am satisfied that the issues set out in [28(1) to (3)] above, constitute special circumstances warranting an award of costs, save in respect of one qualification to which I will return. The appellant repeatedly raising and prosecuting applications which are bad in law, in lieu of diligently prosecuting his appeal, and his unwillingness to ameliorate his conduct even after findings are made against him and explained to him, constitute special circumstances warranting a costs order, particularly having regard to the delay and unnecessary prejudice it causes to the respondent. In that regard, it is relevant that the appellant is not an inexperienced litigator in this Tribunal, whose naivety to proper process and procedure should be taken into account. He has been made aware of the potential consequences of conduct which may constitute an abuse of process in no uncertain or vague terms: Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232. He is also aware that, despite the terms of s 60 of the NCAT Act, costs can be awarded in matters of this nature where appropriate: Zonnevylle v Minister for Education & Early Childhood Learning (No 2) [2022] NSWCATAP 87. I will order that he pay the respondent's costs of the interlocutory applications.
The qualification I referred to above relates to the respondent's submission that the appellant's conduct which I referred to as potentially contemptuous of the Tribunal is an available consideration in respect of an application under s 60 of the NCAT Act. To the extent such conduct caused unnecessary delay, I think it is relevant under s 60(3)(b) - "whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings." Otherwise, without hearing argument on the issue, I am reluctant to accept the submission given that costs are compensatory and not punitive. However, given my findings that there are other circumstances warranting an award of costs, such further argument is unnecessary.
[8]
An order in a fixed sum
In STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98, a differently constituted Appeal Panel synthesised 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].
Here, in respect of the respondent's costs for representation at the hearings, I am satisfied that:
1. The hourly rate claimed falls within a reasonable range;
2. In respect of the time spent at the hearings, it is sufficiently accurate and involved necessary attendances by the respondent's solicitor. Indeed, the claim in this regard is particularly modest and not one which should be appropriately discounted given the lack of any claim for perusing the voluminous material or preparation for the hearings;
The claim for preparation for the submissions on costs seems somewhat high, on an impressionistic basis, but this could be ameliorated by discounting it in the range of 20%. However, if I allow the full claim for attendances, the respondent has already applied a discount to the total amount claimed by a factor of 40% on this issue, and over 15% in respect of the total amount claimed compared to the amounts set out in the affidavit of Ms Mattes. On that basis, no further discounting is warranted.
Given the protracted history of the applications to which this decision relates, and my finding that the appellant continued to agitate matters unrelated to this application when given an opportunity to respond to it, finality assumes a heightened significance in this matter;
Further, I am satisfied the amount claimed is modest in the circumstances, representing a day and a half of hearings on several applications and the conduct of the application for costs itself. The appellant's conduct has unnecessarily contributed to the costs of the proceedings, in a manner disproportionate to the result.
Overall, the respondent's estimate of costs as sought in the proposed order is fair, logical and reasonable.
I will order that the appellant pay the respondent's costs of the interlocutory applications determined on 30 January 2023 and 21 February 2023, fixed in the sum of $5,000, immediately.
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: 02 May 2023