NSW Vocational Education and Training Accreditation Board v Focal Holdings Pty Ltd (GD) (No 2) [2011] NSWADTAP 34

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: NSW Vocational Education and Training Accreditation Board v Focal Holdings Pty Ltd (GD) (No 2) [2011] NSWADTAP 34 Hearing dates: On the papers Decision date: 27 July 2011 Jurisdiction: Appeal Panel - Internal Before: D Patten, Deputy President N Isenberg, Judicial Member R Fitzgerald, Non-judicial Member Decision: Appellant to pay respondent's costs Catchwords: Appeal lacking in merit - fairness Legislation Cited: Administrative Decisions Tribunal Act 1997 Vocational Education and Training Act 2005 Category: Costs Parties: NSW Vocational Education and Training Accreditation Board (Appellant) Focal Holdings Pty Ltd (Respondent) Representation: Counsel M Cleary (Respondent) P Cribb (Appellant) Pryor Tzannes & Wallis (Respondent) File Number(s): 109054 Decision under appeal Citation: Focal Holdings Pty Ltd v NSW Vocational Education and Training Accreditation Board [2010] NSWADT 226 Date of Decision: 2010-09-14 00:00:00 Before: General Division File Number(s): 103010

REASONS FOR DECISION 1APPEAL PANEL (D PATTEN (DEPUTY PRESIDENT), N ISENBERG (JUDICIAL MEMBER), R FITZGERALD (NON-JUDICIAL MEMBER)): When dismissing the appeal in this matter, we gave the respondent leave to make submissions in support of an order for costs. It did so on 15 March 2011 and submissions in reply were received from the appellant on 19 May 2011. 2In essence the respondent submitted that the appeal in so far as it relied on asserted errors of law was untenable or unmeritorious and that no basis was shown for allowing an appeal on the merits. 3Although as the appellant pointed out the Appeal Panel did not use either of the words 'untenable' or 'unmeritorious' to describe the points argued by the appellant, we are of the opinion that the prospects of the appellant succeeding in having its points of law upheld or securing a hearing on the merits were low. 4The power to award costs is contained in s 88 of the Administrative Decisions Tribunal Act 1997 (ADTA). Although not argued by either party, we are satisfied that costs on an appeal may be awarded withstanding the absence of authority in the Vocational Education and Training Act 2005 (repealed 29 June 2011). In our opinion an appeal is not a proceeding for an original decision within s 88(3) of the ADTA, although the proceedings at first instance arguably were. 5The criterion for a costs award is fairness having regard to the matters set out in the section which include the relative strengths of the claims made by each of the parties (s 88(1A)(c)). We think that in this appeal the strength of the respondent's case was much stronger than the case of the appellant. We also think it appropriate to take into account that this was a barely arguable appeal brought by an unsuccessful respondent at first instance. 6In our opinion it would be fair to order the appellant to pay the respondent's costs and we order accordingly such costs to be paid as agreed or in default of agreement as assessed.