CITATION: Wilson v Sydney Markets Ltd (No 3) [2010] NSWADT 215 DIVISION: General Division APPLICANT William Wilson PARTIES: RESPONDENT Sydney Markets Limited FILE NUMBER: 095163 HEARING DATES: On the papers SUBMISSIONS CLOSED: 26 November 2010 DATE OF DECISION: 27 August 2010 BEFORE: Fox R - Judicial Member CATCHWORDS: Costs LEGISLATION CITED : Retail Leases Act 1994 Administrative Decisions Tribunal Act 1997 Australian Aqua Air Pty Ltd v Chief Commissioner of State Revenue [2009] NSWADT 239 CASES CITED: Cronulla Newsagency v Pizzata & Ors [2002]NSWADT 202 Trust Company of Australia Ltd v Craig and Ors [2005] NSWADT 65 Sydney Markets Limited v Wilson [2010] NSWADTAP 45 APPLICANT D Williams SC REPRESENTATION: RESPONDENT R J Carruthers, barrister ORDERS: Respondent to pay the Applicant's costs of preparing for and appearing at the:-1.Mediation appointed by the Retail Tenancy Unit, including any application fees and Mediator's fees paid 2.22nd October 2009 interlocutory hearing. REASONS FOR DECISION 1 Pursuant to my Orders of 11th November 2009, in which I gave the parties "leave" to agitate the question of a costs order, on 19th November 2009 the Applicant filed submissions supported by his affidavit of the same date. The Respondent replied on 26th November 2009, and those submissions were supported by an affidavit of T J Webster, solicitor for the Respondent, sworn on that day. The matter then unfortunately slipped from view during the course of the hearing and publication of the decision in the appeal. [Sydney Markets Limited v Wilson [2010] NSWADTAP 45] 2 At the end of my 11th November decision [para39] I indicated a preliminary view that the matter was extremely finely balanced, and that neither party appeared to have "misbehaved" This latter was a reference to the instances set out in s88(1A)(a)(i) & (ii), which give the Tribunal a discretion to award costs 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) 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 it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal , or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (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 a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 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 . A GLOBAL COSTS ORDER? 3 On behalf of the Applicant Mr Williams SC argued that the matter the Retail Leases Act applied to address a palpable "inequality of bargaining power between the Lessees and the Lessors in connection with Paddy's Markets". The Act gave persons such as the Applicant "significant legal rights" and "If the cost to an individual vindicating those rights is a significant financial impost, the protections given by the legislature will become illusory", and so it would be fair to make a global costs against the Respondent. 4 The Respondent argued that "the question of fairness does not arise at large, but only in the context of determining whether the general rule [that each party bear its' own costs] should be displaced." That seems to me to be incontrovertible, and resolves the very difficult question inherent in Mr Williams' proposition. The proposition refers to "fairness" in a general sense, rather than the more specialised s88 sense. Had the Legislature intended "fairness" to be applied in this general sense, which has always seemed to me to be the rationale at base of the "costs follow the event" convention, then it would not have enacted s88 of the ADT Act (in either its' former or current version). Both versions of the enactment establish an initial position, (which I have previously described as the "default" position), that there is to be no order for costs, unless other aspects are shown to justify a variation. IS FAILURE TO MEDIATE "MISBEHAVIOUR"? 5 Mr Williams next raised the prospect of my taking into account the conduct of the Respondent prior to the formal filing of the (urgent) Application on 11th September 2009. That is a course certainly endorsed by this Tribunal in Trust Company of Australia Ltd v Craig and Ors [2005] NSWADT 65 at par18 ff to the effect that a failure to join in a mediation might amount to the special circumstances required by the former s88. That has always seemed plain to me. 68 Disputes and other matters must be submitted to mediation before proceedings can be taken (1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter. (2) The Registrar must certify that mediation under this Part has failed to resolve a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) if the Registrar is satisfied that any one or more of the parties to the dispute or matter has refused to take part in or has withdrawn from mediation of the dispute or matter. (3) This section does not apply to proceedings before a court for an order in the nature of an injunction. (4) This section does not operate to affect the validity of any decision made by a court. Division 2 of Part 8 sets up a scheme to facilitate mediation and then (in s 68) prohibits the commencement of proceedings unless the Registrar has certified that the mediation has failed. I fail to see how a party who did not comply with that legislated stricture could resist an application for a costs order in that particular regard. If that view lay in respect of the former s88, it much more clearly does so now; see s88 1A(a)(ii) 6 The Applicant's affidavit establishes that, exactly in accordance with the words of s68 he did not commence proceedings until after the mediation. He commenced it with the Retail Tenancy Unit on 30th July 2009, and it failed when, on 3rd September 2009, the Respondent withdrew, and the Registrar issued a Certificate that mediation had failed. The Respondent having in effect "walked out" of a mandated pre-trial process, a cost order in that regard must follow. 7 The fact that the mediation took place before the formal institution of proceedings in this Tribunal seems to me to make no difference; the words of s68 are abundantly clear. If a party wishes to avoid the required process, and avoid the risk of a costs order, then it would be well advised to make an application to the Tribunal for a finding as envisaged by the "tail" of s68 (1). In this context it should be noted that s63 defines "court" to include "tribunal". 8 It was then said that the Respondent had not refused to engage in the mediation, but that it had refused to take part in further mediation. I see no difference between a plain refusal, and a refusal to continue. In any event, s 68(2) seems to me to go a long way to equating "withdrawal" with "refusal to enter into". In my view only when the mediator indicates that agreement between the parties could not be reached is it the case that the statutory obligation has been complied with to the point that a party may not be at risk of a costs order. 9 I note that the Respondent argued from a Revenue Division decision of this Tribunal,[Australian Aqua Air Pty Ltd v Chief Commissioner of State Revenue [2009] NSWADT 239] that the Applicant's submission based on Trust Company v Craig should be rejected, because the later decision specifically considered the new s88, and said:- "The new s88 only allows the Tribunal to have regard to matters directly associated with the proceedings" If the Retail Leases Act requires that there must be a mediation (as Division 2 of part 8 does) before there can be proceedings, then that must be a process which is directly associated with the proceedings. 10 The Respondent also proposed that I should not consider the Respondent's conduct at the mediation because it was the subject of a confidentiality agreement. Agreement or not, s 69 of the RLA provides that in any event. That does not mean that the result of the mediation cannot be brought to the Tribunal's notice. If this opinion needs support, see:- Cronulla Newsagency v Pizzata & Ors [2002]NSWADT 202. Further, it seems to me that I cannot ignore the plain words of the certificate before me, issued by the Registrar in accordance with s 68 (2) in which the withdrawal is specifically raised. 11 The Respondent must pay the Applicant's costs of preparing for and appearing at the Mediation appointed by the Retail Tenancy Unit, including any application fees and Mediator's fees paid. WAS THERE A REASONABLE EXCUSE NOT TO COMPLY WITH SUMMONS TO PRODUCE? 12 The Applicant also raised the issue of the Summons to Produce Documents. It was Mr Williams' position that this was not complied with comprehensively enough by the time set, and required a further application on 22nd October 2009, to ensure that all was in hand for the hearing which commenced on 26th October2009. That has clear potential to fall within s88 1A (a) (i), unless there was a reasonable excuse. 13 The response was that the Respondent did the best it could in view of the limited time available, that the claim for documents was very wide, and that in any event almost none were called into evidence. 14 The actual scope of the summons seems to me not to have been inappropriate considering the complexity and nature of the matter. Further, it seems to me (absent a blatant attempt to abuse the process) to be inherent in this process of "discovery" that many are called, but few are chosen. 15 Whilst I am not unsympathetic to the Respondent's plea that it did the best it could, the fact of the matter is that the dispute was one which justified the urgency with which the Tribunal dealt with it, and that required the parties to comprehensively take every step to achieve that expedited result. I say this especially in view of the fact that it was the Respondent which established the trading introduction deadline which brought about the urgency. 16 I note that the 22nd October 2009 hearing not only dealt with the document production issue, but also dealt with an application by the Applicant to further amend its' claim. I also note that the documents issue "spilt over" into the 26th October 2009 hearing of the substantive issue. On that basis I am satisfied that a fair result is achieved by directing that the Respondent bear the Applicant's cost of preparing for and appearing at the 22nd October 2009 hearing. 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.