Haddad v Chief Commissioner of State Revenue (RD) [2011] NSWADTAP 46

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Haddad v Chief Commissioner of State Revenue (RD) [2011] NSWADTAP 46 Hearing dates: On the papers Decision date: 10 October 2011 Jurisdiction: Appeal Panel - Internal Before: D Patten, Deputy President R Perrignon, Judicial Member C Bennett, Non Judicial Member Decision: Order that the Appellant pay the Respondent's costs of the appeal as agreed upon or as assessed. Catchwords: No question of principle Legislation Cited: Administrative Decisions Tribunal Act 1997 Category: Costs Parties: Sally Haddad (Appellant) Chief Commissioner of State Revenue (Respondent) Representation: J Haddad (Agent - Appellant) Crown Solicitor (Respondent) File Number(s): 119005 Decision under appeal Citation: Haddad v Chief Commissioner of State Revenue [2011] NSWADT 17 Date of Decision: 2011-01-27 00:00:00 Before: Revenue Division File Number(s): 096068

REASONS FOR DECISION (Deputy President D. Patten; Judicial Member - R Perrignon; Non Judicial Member- C Bennett.) 1The successful Respondent to this appeal seeks an order for the costs of the appeal. The making of such an order is governed by s88 of the Administrative Decisions Tribunal Act (the ADT Act) which provides as follows: "(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. 2In our view, this is an appropriate case to award costs. In our view, as a matter of clear law the appeal was bound to fail, a factor to be taken into account under s88(1A)(c) and, moreover, it is relevant , in our opinion to take into account that the Appellant failed at first instance on the same preliminary point. 3Within S88(1A) we are satisfied that it is fair to award the Respondent its costs of the appeal. We note that cross applications for costs made by each of the parties in the Tribunal below were dismissed, following the decision of the Appeal Panel: Haddad v Chief Commissioner of State Revenue [No 2] [2011] NSWADT 215. 4We order that the Appellant pay the Respondent's costs of the appeal as agreed upon or as assessed.