CITATION: Symons v Botany Bay City Council [2004] NSWADT 92 DIVISION: General Division APPLICANT PARTIES: Warren Symons RESPONDENT Botany Bay City Council FILE NUMBER: 033290 HEARING DATES: 21/01/2004, 28/01/2004 SUBMISSIONS CLOSED: 03/12/2004 DATE OF DECISION: 05/18/2004 BEFORE: Montgomery S - Judicial Member APPLICATION: Costs - Impounding - unlawful impouding of item - Impounding Act - impounding - unlawful impounding of item MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Impounding Act 1993 Ciesielski -v- Broadway Shopping Centre Sydney Pty Ltd [2000] NSWADT 25 FY -v- The Commissioner, Health Care Complaints Commission (2003) NSWADT 128 CASES CITED: Prasad & Anor -v- Fairfield City Council (RLD) (2002) NSW ADTAP 2 Protogeros -v- Fouzas [2004] NSWADT 62 Randi Wiks Pty Limited v. Pokana Pty Limited [2003] NSW ADTAP 27 Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27 APPLICANT REPRESENTATION: In person RESPONDENT J Blunden, solicitor ORDERS: Each of the applications for costs is refused. Each party is to pay their own costs. REASONS FOR DECISION Background 1 Mr Symons applied to the Tribunal for a review of the decision by Botany Bay City Council ("the Council") under the Impounding Act 1993. The Council's decision was to impound a trailer left unattended in McPherson Street, Banksmeadow. 2 The matter came before the Tribunal for hearing on 21 January 2004. The matter was not finalised on that day and was adjourned for further hearing on 28 January 2004. The proceedings on the 21st January 2004 were adjourned to allow the applicant to obtain further evidence on the proof of ownership of the trailer. The Council has brought a costs application for costs thrown away on the adjournment of the hearing on 21 January 2004. The Council's case 3 The Council submits that in not being prepared in respect to the ownership issue Mr Symons disadvantaged the Council in that the proceedings were not able to be concluded on the allocated date. Mr Symons has been made aware that ownership was an issue in the proceedings. 4 The affidavit sworn 22 December 2003 of Mr Roger Dowsett, the Council's Manager, Developments Assessments, indicates that he wrote to Mr Symons on 23 October 2003 in respect to the impounding of the container and trailer. Mr Roger Dowsett's letter states: "Firstly the vehicle's registration B63326, was searched and found to have been cancelled some time ago and as far as Council can establish the vehicle is not registered. Secondly what appears to be the vehicle's serial number has been obliterated and again the vehicle's ownership could not be established through this means. Therefore if you are the owner and can produce documentary evidence to this effect that I will, as required by the Impounding Act, carry out the obligations that are imposed upon the Council. It would therefore be helpful if you could attend Council's administrative offices at 141 Coward Street, Mascot on Friday 24 October 2003 and submit full ownership particulars, these are current registration papers, bill of sale or the like and thus allow Council to implement the release procedures of the Impounding Act 1993." 5 In paragraph 13 of his affidavit Mr Dowsett refers to a conversation that he says he had with Mr Symons on 27 October 2003. Mr Dowsett says stated that during that conversation he advised Mr Symons that the trailer and container could not be released to him without proof of ownership. On 29 October 2003 Mr Dowsett again wrote to Mr Symons and said that proof of ownership was required. 6 On 25 November 2003 the matter was before the Tribunal's Deputy President, Acting Judge Chesterman, for a directions hearing. Mr Symons was present and represented himself. At that hearing, the Council's solicitor Ms Blunden raised the issue of whether Mr Symons had standing to bring the application in that proof of ownership had not been provided. 7 On 29 December 2003 Mr Symons made a statutory declaration, received by the Council on 9 January 2004, in which he declared: "I am the owner of a silver coloured McGrath truck, two axle trailer to which was attached a 40 foot container thought to number 00LU5371085 and taken on the 28th September 2003 from McPherson Street Botany. The said container belongs to Overseas Orient Container Line and was in the custody of my company, Paradigm Transport Pty Ltd at the time the trailer was taken." 8 On 15 January 2004 Mr Symons provided by facsimile his revised submissions and statutory declaration of Michael Thomas Anthony Donovan. Mr Donovan's statutory declaration was that the trailer had a series plate MG 1865 and also a large 265 on the right hand side. 9 On 16 January 2004 Council's solicitor wrote to Mr Symons and among other things requested Mr Donovan be available for cross-examination on 21 January 2004. This was sent by facsimile on the same day. Mr Donovan was not made available for cross-examination on 21 January 2004. At Mr Symons' request, Council had three witnesses, Mr Dowsett, Mr Constantinou and Mr Wijayaratna present on 21 January 2004. 10 The Council submits that Mr Symons' inaction caused the adjournment on 21 January 2004. He was on notice from 23 October 2003 that ownership of the trailer needed to be established. He was aware after the Directions Hearing on 25 November that Council would release the trailer once ownership was proven. Mr Symons did not provide anything to Council until 9 January 2004. He provided a statutory declaration that was not adequate to establish ownership. Council's letters indicate that the requirements of proof of ownership. Mr Symons never asked to view the trailer that was impounded. The Council submits that Mr Symons' inaction caused inexcusable delay to the hearing of the matter and that the Council's costs thrown away on the preparation for the hearing on 21 January 2004 be met by a costs order against Mr Symons. Mr Symons' case 11 Mr Symons referred to the legislative basis for the Tribunal's power to award costs. This power is set out in Section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). The Tribunal has published Practice Note 12 in relation to Section 88. Part 6 of the Impounding Act 1993 ("the Impounding Act") provides the Tribunal with jurisdiction to entertain Mr Symons' application. 12 Mr Symons submits that section 88(3) of the ADT Act prohibits the Tribunal from awarding costs unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. Therefore, he argues, as there is no provision in the Impounding Act to award costs, the Tribunal does not have the power to do so. 13 In the alternative, Mr Symons submits that if the Tribunal does have a power to award costs then it is a discretionary power which, in the circumstances of this matter, ought not be exercised in favour of the Council and rather ought be exercised in Mr Symons' favour. 14 In essence he argues that the application before the Tribunal was made necessary because of Council's action in impounding the vehicle. At all times Council was in possession of sufficient information to enable it to make the enquiries required of it by law. The action itself and the adjournment application of 21 January 2004 could have been avoided had Council complied with the provisions of the Impounding Act. The Council ought not now be awarded costs in respect of an action made necessary through it's own initial and then continuing wrongful conduct. 15 Mr Symons submits that the Council's application for costs is misconceived and should be dismissed. Decision and Reasons 16 Section 88 of the Administrative Decision Tribunal Act 1997 gives the Tribunal the power to award costs. That section provides: "88 Costs (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) 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 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application." 17 In so far as is relevant to these proceedings Part 6 of in the Impounding Act provides: "Part 6 - Applications to Administrative Decisions Tribunal 38 Owner of impounded item can apply to Administrative Decisions Tribunal for review (1) The owner of an impounded item may apply to the Administrative Decisions Tribunal for a review of the decision to impound the item, but only on the ground that the impounding of the item was unlawful. (2) The owner of an impounded item may apply to the Administrative Decisions Tribunal for a review of any fee or charge required to be paid for the release of the item (whether to an impounding authority or an occupier of private land), but only on the ground that the fee or charge has been improperly charged or incorrectly calculated or is excessive. (3) An application cannot be made under this section until the owner of the impounded item has given the impounding authority or occupier concerned notice in writing of intention to apply to the Administrative Decisions Tribunal. (4) If notice of intention to apply to the Administrative Decisions Tribunal is given, the authority must not sell or otherwise dispose of the impounded item until the time limit for an application has expired or until it has been notified that any application made has been refused or withdrawn. (5) This section does not affect section 22 (Injured, diseased or distressed animals can be destroyed). (6) An impounding authority may release an impounded item pending the determination of an application. The release of an impounded item does not affect any right of recovery that the impounding authority may have under this Act. ... 40 Result of application to Administrative Decisions Tribunal (1) If an application for a review of an impounding decision is dismissed, the applicant is liable for any additional impounding fees incurred up to the time the impounding authority is notified of the decision on the application. (2) If an application for a review of an impounding results in the impounding decision being set aside, the impounding authority must release the impounded item free of all impounding fees and convey it to the applicant at the expense of the authority." 18 I agree with Mr Symons that there is no provision in the Impounding Act that addresses the Tribunal's power to award costs, however I do not agree that this is determinative of the issue. These are not proceedings for an original decision. This is an application for review of a decision by the Council. In my view, section 88(3) of the ADT Act has no application in these proceedings. 19 I agree with Mr Symons' alternative submission that the Tribunal's power to award costs is a discretionary power. It must therefore be determined whether, in the circumstances of this matter, that discretion ought to be exercised and if so, in whose favour it should be exercised. 20 Pursuant to section 88(1) of the ADT Act the Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs. This provision has been considered in numerous cases before this Tribunal, most commonly in retail tenancy matters. In Protogeros -v- Fouzas [2004] NSWADT 62 I stated: "50 The issue of costs has been considered in numerous cases before this Tribunal, most recently by Judicial Member Molloy in Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27. I agree with Judicial Member Molloy's summary of the findings by the Appeal Panel decision in Randi Wiks Pty Limited v. Pokana Pty Limited [2003] NSW ADTAP 27 which make it clear that: "(a) The question whether the fact that have been proved constituted "special circumstances" was not a question of law but one of fact. (b) There is a significant difference between Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 and Section 88 Administrative Decisions Tribunal Act 1997, the difference being that while Section 88 requires a finding of "special circumstances", Section 109 lays down a criteria of "fairness". This distinction is crucial and the Victorian Act does not give direct guidance to the interpretation of Section 88. (c) Arguments by an unsuccessful party that are put forward in good faith and have a reasonable basis do not of themselves entitle a successful party to an order for costs. It may well be different if the unsuccessful party had persisted with an unarguable case. (d) The fact that one of the objects of the Administrative Decisions Tribunal, as set out in Section 3(b), to the effect that this Tribunal should be "accessible", does not imply that costs should regularly follow the event … (e) In order to award costs the Tribunal must be "satisfied" that there are "special circumstances warranting an award of costs " (Section 88) and "special circumstances" means circumstances that are "out of the ordinary, but without having to be extraordinary or exceptional". 51 Applying these principles to the present circumstances, it is necessary that I find circumstances that are out of the ordinary, but not necessarily extraordinary or exceptional, that would warrant an award of costs. It is for the Tribunal to determine what are special circumstances in the particular circumstances of a matter before it. The Tribunal has to be satisfied that the circumstances warrant an interference with the position that each party should bear their own costs." 21 In the circumstances of Protogeros -v- Fouzas I considered that an award of costs was warranted. 22 The Council has referred me to the decision in Prasad & Anor -v- Fairfield City Council (RLD) (2002) NSW ADTAP 2 (7 January 2004) which makes reference to Section 109 of the Victorian Civil and Administrative Tribunal Act 1998. In light of the findings by the Appeal Panel decision in Randi Wiks Pty Limited v. Pokana Pty Limited [2003] NSW ADTAP 27 Prasad should not be considered as a useful authority with respect to the application of section 88 of the ADT Act. 23 The Council has also referred me to the decision in FY -v- The Commissioner, Health Care Complaints Commission (2003) NSWADT 128 where the President of this Tribunal stated at paragraph 66: "66 There are numerous decisions of the Tribunal now going to the question of what might constitute 'special circumstances' dealing with a variety of forms of conduct. The unifying thread is that the conduct is affected by a degree of unreasonableness that goes beyond what might be appropriate in connection with the reasonable conduct of litigation ..." 24 In Brooks Maher -v- Cheung (2001) NSWADT 18 (12 February 2001) the Tribunal stated at paragraph 14: "14 We are satisfied that the plain meaning of "special circumstances" is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But "special circumstances" alone are not sufficient. Under s 88(1), the special circumstances must "warrant an award of costs." The circumstances which would or would not "warrant an award of costs" cannot be exhaustively listed. However where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted." 25 In Ciesielski -v- Broadway Shopping Centre Sydney Pty Ltd [2000] NSWADT 25 the Tribunal's Deputy President stated at paragraph 35: "35 In my view, the Tribunal can award costs in cases where, for example, a party has put the other side to unnecessary expense by inexcusable delay or failed to comply with Tribunal directions." 26 I note that the passage from Ciesielski -v- Broadway Shopping Centre Sydney Pty Ltd to which the Council has referred me was not the complete views expressed by the Deputy President. In the same paragraph she continued to say: "This matter was not been dealt with as expeditiously as it should have been, nor did the respondent provide a comprehensive response to the applicant's questions until the hearing. However, I do not think the failure of the respondent to consider the question of privilege in a more timely and comprehensive fashion is severe enough to amount to "special circumstances."" 27 The President in FY -v- The Commissioner, Health Care Complaints Commission and the Deputy President in Ciesielski -v- Broadway Shopping Centre Sydney Pty Ltd both ultimately reached the conclusion that there should be no award of costs. 28 In the circumstances of this matter, I accept that Mr Symons was put on notice of the issue of ownership. I also accept that that it is probable that the hearing of 21 January 2004 would not have been adjourned had Mr Donovan been available for cross-examination. However, I also note that Mr Symons was not legally represented and was clearly of the view that his own evidence would have been sufficient to prove ownership. It is also possible that the matter would not have been finalised on 21 January 2004 even if Mr Donovan had appeared. 29 There is a history of litigation between the parties and it seems to me that, as a consequence, each party has adopted a less than cooperative approach to the other. I have some sympathy for Mr Symons' argument that the application before the Tribunal was made necessary because of the Council's action. Had there not been a history of litigation between the parties the Council may well have adopted a different approach. 30 In FY -v- The Commissioner, Health Care Complaints Commission the President found that FY's conduct was at the margins. In this case I think that the same can be said about Mr Symons' conduct. However, I do not think that his conduct is severe enough to amount to "special circumstances." In my view it does not demonstrate a degree of unreasonableness that goes beyond what might be appropriate in connection with the reasonable conduct of litigation. 31 In the circumstances of this matter I am not satisfied that there are special circumstances warranting an interference with the position that each party should bear their own costs. Accordingly, there should be no order for costs. Order 1. Each of the applications for costs is refused. Each party is to pay their own costs. 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.