Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Soma Lasers Australia (Int) Pty Ltd v; 97 Compression Pty Ltd t/as Estetiko Skin and Laser (No 2) [2025] NSWCATAP 3 Hearing dates: On the papers Date of orders: 06 January 2025 Decision date: 06 January 2025 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member G Ellis SC, Senior Member Decision: (1) The Tribunal dispenses with a hearing on the question of costs, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) Each party is to bear their own costs of the appeal. Catchwords: COSTS – Self-represented party – no valid claim for costs referable to the appeal – application of established principles Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 Bonita v Shen [2016] NSWCATAP 159 Cachia v Hanes [1994] HCA 14 Latoudis v Casey [1990] HCA 59 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11 The Owners – Strata Plan No. 47037 v Peter Clisdell Pty Ltd (No 2) [2018] NSWCATAP 46 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: None cited Category: Costs Parties: Soma Lasers Australia (Int) Pty Ltd (Appellant) 97 Compression Pty Ltd t/as Estetiko Skin and Laser (Respondent) Representation: A Lennox, director (Respondent) File Number(s): 2024/00116858 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 27 February 2024 Before: K Ross, Senior Member (8 May 2023) S Hanstein, General Member (27 February 2024) File Number(s): 2022/00402630 (previously GEN 22/47279) REASONS FOR DECISION Outline 1. The successful respondent sought an order for costs, following an appeal which challenged orders made by the Tribunal on 27 February 2024, being orders which required the appellant to collect an Ultrasonic HIFU 4D device which is the subject of those proceedings, and pay the respondent $31,790. 2. Amounts claimed by the respondent were as set out in the following table: Legal fees (Koularis & Associates) 8,800.00 NSW Court Filing Fees 218.00 Expert Witness Costs 1,540.00 Post-Judgment Interest 2,244.93 Total $12,802.93 1. No submissions for the appellant were provided. For the reasons indicated below, we do not consider the respondent is entitled to recover any amount in respect of the costs of the appeal. Background 1. The appeal was heard on 15 August 2024. Although the appellant was represented by counsel, the respondent was represented by its director, Ms Lennox. On 15 November 2024 orders were made, dismissing the appeal and providing an opportunity for submissions to be made in relation to the costs of the appeal. 2. Submissions were received from the respondent on 29 November 2024, but no submissions have been provided by the appellant. Respondent's submissions 1. It was contended that there were special circumstances warranting an order for costs. Supporting documents for the amounts listed above were provided. Relevant law 1. In the Civil and Administrative Tribunal Act 2013 (the Act), the effect of s 60 is that each party is to bear their own costs unless there are special circumstances which warrant an order for costs. 2. However, s 35 of the Act operates to make s 60 subject to Rule 38 of the Civil and Administrative Tribunal Rules 2014 (the Rules) which provides as follows: (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: … (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. When rule 38 applies there is a general discretion to award costs and it is well established, by decisions such as News v Cotes [2019] NSWCATAP 186, Bonita v Shen [2016] NSWCATAP 159 and Thompson v Chapman [2016] NSWCATAP 6, that: (1) the starting point is that the usual order for costs should be in favour of the successful party, (2) the award is not to punish the unsuccessful party but to compensate the successful party for the costs incurred in the proceedings, and (3) departure from the usual order is permissible if the circumstances favour that course of action. 2. Simply stated, when rule 38 applies it is not necessary to establish special circumstances and the usual order is that costs follow the event (i.e. follow the outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11. 3. At first instance, as the amount claimed more than $30,000 costs were governed by r 38 of the Rules and not by s 60 of the Act. 4. As a result, it is not necessary to show special circumstances warranting an order for costs and the normal position is that costs follow the event in the absence of disentitling conduct. It must be noted that there was no order for costs at first instance. 5. The effect of r 38A(2) is that issue of costs in relation to an appeal is governed by the provisions that were applicable at first instance. That rule is quoted below: 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. Since the respondent was self-represented, it needs to be noted that, in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, the High Court confirmed what it had previously said in Cachia v Hanes [1994] HCA 14, namely that a self-represented litigant may not be compensated for time spent in litigation, the only exception being if that litigant is a solicitor. Consideration 1. It is not necessary to consider whether there are special circumstances warranting an order for costs as the amount in dispute exceeded $30,000, reflected by the first instance order for an amount of $31,790 to be paid. 2. While the applicant is entitled to an order for costs, there are impediments to each of the four amounts claimed. 3. First, since the respondent does not appear to have sought or obtained leave to be legally represented in relation to the appeal, it cannot recover the amount charged by a solicitor. The Appeal Panel decision in The Owners – Strata Plan No. 47037 v Peter Clisdell Pty Ltd (No 2) [2018] NSWCATAP 46 at [44] is but one example of a party who was not legally represented at the hearing of the appeal not being awarded costs. 4. Secondly, the claim for a Local Court filing fee relates to the enforcement of the first instance order and does not relate to the appeal. Likewise, the claim for the cost of an expert related to the first instance hearing, not the appeal. Finally, the claim for post-judgment interest is also not a cost of the appeal. 5. Hence, the respondent has not established any recoverable costs. In those circumstances, the same order in relation to costs that was made at first instance, namely that each party is to bear their own costs, should be made. Orders 1. As there is no utility in conducting a hearing in relation to the costs of the appeal, the power conferred by s 50(2) of the Act, to dispense with a hearing, should be exercised. 2. For the reasons set out above, the following orders are made. 1. The Tribunal dispenses with a hearing on the question of costs, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Each party is to bear their own costs of the appeal. ********** 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: 06 January 2025