Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cornish v Penrith City Council (No 2) [2024] NSWCATAP 146 Hearing dates: On the papers Date of orders: 29 July 2024 Decision date: 29 July 2024 Jurisdiction: Appeal Panel Before: T Simon, Principal Member Dr R Dubler SC, Senior Member Decision: (1) An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) The appellant is to pay the respondent an amount of $2,991.45 on or before 27 August 2024. Catchwords: COSTS---Rule 38A Civil and Administrative Tribunal Rules 2014--- where party given leave to be legally represented on the condition that it may not recover legal costs--- special circumstances LOCAL GOVERNMENT – Councillors Legislation Cited: Civil and Administrative Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW Cases Cited: Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294 Cornish v Penrith City Council [2024] NSWCATAP 107 Huang v Drumm [2017] NSWSC 1006 Mergerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 Texts Cited: Nil Category: Costs Parties: Marcus Cornish (Appellant) Penrith City Council (Respondent) Representation: Counsel: P King (Appellant) P Boncardo (Respondent) Solicitors: Robert Balzola and Associates (Appellant) Blacktown City Council, Legal (Respondent) File Number(s): 2023/00433870 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Date of Decision: 13 November 2023 Before: K Ransome, Principal Member File Number(s): 2023/00221915 Reasons for Decsion 1. The respondent, Penrith City Council seeks its costs in relation to a decision made by this Appeal Panel in Cornish v Penrith City Council [2024] NSWCATAP 107. 2. Mr Cornish, who was a former Local Government Councillor had appealed a decision of the Tribunal dismissing his application on the basis that the Tribunal had no jurisdiction to determine the proceeding's. The Tribunal had also made an order for Mr Cornish to pay the respondent's costs. 3. On 13 June 2024, we dismissed the appeal and made directions for exchange of submissions for an application for costs to be determined. The directions also allowed for submissions as to whether the parties consented to a hearing being dispensed with in relation to the costs application. 4. The respondent filed written submissions on 23 June 2024. The appellant filed written submissions in response on 1 July 2024. We have read and considered the written submissions of both parties. 5. Neither party sought an oral hearing on the issue of costs. We are satisfied that it is appropriate to deal with the costs application on the papers as a hearing would amount to further unnecessary costs to the parties. Accordingly, we have made an order dispensing with a hearing. Costs of the Appeal 1. Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) states: (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of- (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 1. Section 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides: 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. … 1. For the purposes of s 60(2) of the NCAT Act, "special circumstances" are circumstances that are out of the ordinary. They do not have to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], citing Cripps v G & M Mawson [2006] NSWCA 84 at [60]. Consideration 1. We are satisfied that there are special circumstances warranting an award of costs in these proceedings. 2. In his submissions on costs, Mr Cornish repeats the submission that "the entirety of this matter, commencing with Complaint lodged on 19 December 2014 to date, is a disciplinary matter." Mr Cornish's submissions also repeat the history of the disciplinary proceedings and the fact that on appeal to the Supreme Court, the Tribunal's earlier decision was set aside. He submits: 40. This Tribunal has dismissed any application under the very powers in which the Appellant Mr Cornish has suffered financial losses due to exposure of the very powers wrongly exercised by the Respondent in this matter, Penrith City Council, in refusing reimbursement in bald defiance of the Orders and Ratio and Findings of the Supreme Court of New South Wales. 41. To this day, and continuously, the Respondent has persisted in its false, wrong and erroneous assertions that Resolution CWl 1, relying on FIR Report of Kathy Thane, and Application of breach of Code 8.10 is correct, lawful and good. 42. This is patently false against the Decision of the Supreme Court of New South Wales. 43. These preliminary findings of facts, law and findings in the Supreme Court of New South Wales and the Senior Member Westgarth in the further 2022 Costs Order referred above at [15], form the basis of application of the discretionary powers before this Tribunal in making of Costs Orders against Mr Comish 1. Mr Cornish submits that given the history of the disciplinary proceedings that the appeal was not misconceived and that: 57. The Tribunal relies on the absence of statutory jurisdiction enabling it to proceed with confidence on the basis that there is an Occupational Division decision, made on 12 July 2018, which is one-and-the-same Occupational Division disciplinary decision in exercise of powers conferred upon it under Chapter 14, Part 1, Division 3, which it now says does not apply because there is an apparent rule in Kim which denies any application of the disciplinary power conferred upon in. 58. Taking the Tribunal's position to its highest, the only apparent remedy against such a flagrant denial of statutory framework is by recourse to Judicial Review. 59. Anticipating this may be a repeat of the decisions referred above at paragraphs [10] and [11] and later Cornish v Chief Executive, Office of Local Government [2018] NSWCATAP 235, the same situation albeit on different factual matrix presents itself requiring the Appellant to test all Internal Review options prior to seeking Judicial Review in the Supreme Court of New South Wales yet again. 1. Mr Cornish's submissions continue: 69. The only remedy available to Mr Comish on the strength of the finding here, as with any other Councillor duly elected and subjected to a Tryanny of the Majority, must have recourse to Judicial Review proceedings in the Supreme Court of New South Wales. 70. According to this Tribunal's decision, this Tribunal has no jurisdiction to review a decision flowing directly from its own flawed decisions now set aside by the Court. 71. This resting place is absurd and unjust. 1. Mr Cornish submits that they needed to exhaust all channels of administrative review and that: 86. It is the Appellant's submission that both the Costs Order below and any suggestion of costs order here is both manifestly unjust against any discretion available against the Appellant. 87. Moreover, again this matter is listed before the Supreme Court of New South Wales. In light of the ratio and orders currently in force, it will be of high embarrassment to the Tribunal to have meted out a costs order when there is most certainly an arguable case that the Appellant was at a minimum required under the operation of section 83 Appeals power that there is required to be a testing whether there is a question to be tried under that provision to the Supreme Court of New South Wales. 1. The Tribunal can only administratively review decisions for which they have been empowered by the legislature. The appellant is dissatisfied with the history of these proceedings, which we set out and considered at [2] – [7] of our reasons in the appeal. However, that dissatisfaction and the dissatisfaction with the legislation regarding administrative review is not something without more which this Appeal Panel should consider in whether it should award costs. 2. Mr Cornish submits that each party should pay its own costs in both primary and appeal proceedings. One of the grounds of appeal of Mr Cornish in the appeal was in relation to the Tribunal's decision at first instance to award costs. At [44] of our reasons in the appeal decision we dealt with that ground and dismissed the ground of appeal. It is not appropriate for us to now revisit that costs order as part of this costs application. Mr Cornish also submits: 88. In all the circumstances, this is one of the more unjust determinations to award costs in a situation of exceptional rarity and one which a statutory corporation with an estimated turnover of 350 Million dollars annually would not be prejudiced by the ordinary presumption in a matter of public interest which this matter squarely falls within that each party pay its own costs in accordance with the CATA statutory presumption. 1. This matter did not raise any significant issue of public interest. The financial position of the respondent is of little significance as to whether costs should be awarded. 2. In the circumstances we are satisfied that there are special circumstances warranting an award of costs to the respondent in this case. The appeal was lacking in substance. In the affidavit provided by Mr Avery he includes a letter that was sent to Mr Cornish's solicitor, Mr Balzola, dated 18 January 2024. In that letter Mr Cornish and his legal advisor was put on notice that his appeal was misconceived and without merit and he was invited to withdraw his appeal. Mr Avery notified Mr Balzola that the appeal, like the first instance proceedings was "bereft of any merit" and that they would be claiming costs in the appeal and relying on the correspondence in that regard. 3. The grounds of appeal and the new ground agitated at the hearing had little prospect of success. Mr Cornish repeated the untenable submissions he put at first instance in the appeal. He added a new ground at the appeal hearing, despite directions having been made in the appeal, which the respondent was required to address orally. Mr Cornish was represented by a solicitor and counsel during the appeal proceedings. Fixed Costs 1. The respondent has made submissions that the Tribunal should award costs as a lump sum amount. The legal fees that Council incurred in defending the appeal are set out in taxation invoices for Counsel which have been provided in the affidavit of Mr Avery. 2. In Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294, Beazley P, Meagher and Payne JJA set out the principles in relation to a fixed costs order at follows [12] - [18]: [12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002) NSWCA 213 at 742-723 (21)-(22); Beach Petroleum NL v Johnson (No 2)(1995) 57 FCR 119 at 123. [13] 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: Hamad v New South Wales (2011] NSWCA 375 at (818) per Beazley JA (Giles and Whealy JJA agreeing). [14] A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; (1999) FCA 673 at 5 (16); Penson v Titan National Ply Ltd (No 3) (2015] NSWCA 121 at [7]. [15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamad v New South Wales at (814]. ... [18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamad v New South Wales at [816]-[817] is apposite. 1. The fees from Counsel in the tax invoice total $4,273.50. The respondent seeks 70% of the costs that Council was required to pay totalling $2,991.45. 2. We are of the view that costs claimed are a modest sum and that formal assessment of the costs would only add to the costs burden on the respondent and the costs will become disproportionate if they are referred to assessment. 3. Having considered the affidavit of Mr Avery and the invoice of Mr Boncardo attached to it, we are satisfied that we can determine an appropriate sum of the costs and having considered the costs we are satisfied that the costs which have been incurred are reasonable. 4. The degree to which there should be any deduction made to the costs is a matter of impression. In Huang v Drumm [2017] NSWSC 1006, Adamson J at [10] considered that a 20% deduction for solicitor's fees was reasonable. In Starr-Diamond v Diamond (No 4) [2013] NSWSC 811, Slattery J ordered a 20% reduction. 5. In line with the authorities, a discount of 30% as proposed by the respondent is reasonable. On that basis we award a lump sum of $2,991.45 to the respondent. Orders 1. The Appeal Panel makes the following orders: 1. An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The appellant is to pay the respondent an amount of $2,991.45 on or before 31 July 2024. ********** 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 July 2024