Boutros v Director General, Department of Finance and Services (No. 2) (Costs) (GD) [2012] NSWADTAP 7

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Boutros v Director General, Department of Finance and Services (No. 2) (Costs) (GD) [2012] NSWADTAP 7 Hearing dates: On the papers Decision date: 17 February 2012 Before: Judge K P O'Connor, President Decision: That the appellants pay the respondent's costs of the appeal in the amount of $1,393.34. Catchwords: COSTS - Appeal - Respondent's Costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Cases Cited: Boutros v Director General, Department of Finance and Services [2011] NSWADTAP 54 Category: Costs Parties: Elias Boutros (First Appellant) Leila Boutros (Second Appellant) Director General, Department of Finance and Services (Respondent) Representation: M Nicoletti (Respondent) File Number(s): 119039 Decision under appeal Citation: Boutros v Director General, Department of Finance and Services, New South Wales Fair Trading [2011] NSWADT 181 Date of Decision: 2011-07-28 00:00:00 Before: General Division File Number(s): 103299

REASONS FOR DECISION 1The appellants' appeal has been dismissed: see Boutros v Director General, Department of Finance and Services [2011] NSWADTAP 54 (30 November 2011). The respondent agency has applied for its costs of the appeal, limited to the costs of counsel, in the amount of $1,393.34. 2In accordance with the timetable set out in the appeal decision, the respondent has filed submissions in support of its application (12 December 2011). The appellants have not filed any submissions in reply. The Appeal Panel is satisfied that the matter is suited for disposal without hearing, on the papers, as permitted by the Administrative Decisions Tribunal Act 1997 (ADT Act), s 76, a course that was foreshadowed in the directions. As permitted by s 24A, the Appeal Panel is constituted for this purpose by a single presidential member, being the presidential member who sat on the main appeal. 3This case has, as its background, the permanent disqualification of the appellants from holding a motor dealer's licence ordered by the respondent in 2002. After 9 years, the appellants are now seeking to find a way of returning to the industry at the licensee level. They applied to the respondent for new licences. The respondent refused on the basis that they were permanently disqualified. 4They lodged with the Tribunal an application for review of the respondent's refusal. The Tribunal held that the respondent was bound to refuse the application by the applicable law. The Appeal Panel agreed. 5The primary rule as to costs is set out in s 88(1) of the ADT Act, i.e. (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. 6Sub-section (1A) provides the exception: (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. 7The respondent puts four points in support of the application. One, there was never an arguable question of law, referring to s 88(1A)(c); two, the respondent was successful at both levels of the Tribunal, referring to s 88(1A)(e); three, there were not factual issues in dispute, referring to s88(1A)(e); and four, the appellants were advised by the respondent as early as 14 September 2011 that in its opinion the appeal lacked any prospects of success, and that it would be applying for costs if unsuccessful. 8The respondent did not seek costs at first instance. This, as I see it, is the proper approach and in keeping with the desirability of maintaining an accessible merits review forum for the citizens of New South Wales affected by adverse administrative decisions that are reviewable in the Tribunal. The objects clause of the ADT Act, s 3, emphasises these values, see for example objects (b), (e), (f) and (g). 9However, the review applicants chose to take their case to the next level, the Appeal Panel, and thereby exposed the administrator to further costs in relation to what was, as I see it for the reasons explained in our decision, a weak point. The appeal had the limited public value of drawing attention to the administrator's practice of imposing 'permanent' disqualification orders and to the crushing nature of such a penalty. Our reasons canvassed an alternative course for getting the issue reopened. 10In my view, this is a case where, mindful of the governing principle that ordinarily each side is to bear its own costs, it is fair to make an exception and make a limited order for costs. I note that the respondent's application is limited to the costs of counsel, in a reasonable amount. As has occurred in some recent costs decisions, I see value (so as to close off any further disputation) that the amount and terms of costs orders be fixed. This is better than leaving it to the formula of 'costs as agreed or assessed', at least in cases where the costs fall in a narrow compass and the work likely to have been involved is relatively contained. 11This is a case of this kind.