Kilpatrick v Port Kembla Port Corporation (No. 2) (Costs) [2013] NSWADT 308

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kilpatrick v Port Kembla Port Corporation (No. 2) (Costs) [2013] NSWADT 308 Hearing dates: On the papers Decision date: 31 December 2013 Before: Judge K P O'Connor, President Decision: (1) The respondent's costs application is granted. (2) The applicant is to pay the respondent's costs of the proceedings, fixed at $5,000. Catchwords: COSTS - Review application outside jurisdiction - Respondent's application granted Legislation Cited: Administrative Decisions Tribunal Act 1997 Uncollected Goods Act 1995 Cases Cited: Kilpatrick v Port Kembla Port Corporation [2013] NSWADT 195 Category: Costs Parties: Leslie Kilpatrick (Applicant) Port Kembla Port Corporation (Respondent) Representation: In person (Applicant) S Dyball, Heard McEwan Legal (Respondent) File Number(s): 133178

reasons for decision 1I have dismissed the applicant's review application on the ground of want of jurisdiction: Kilpatrick v Port Kembla Port Corporation [2013] NSWADT 195 (30 August 2103). The respondent, as it foreshadowed in its principal submissions, has now applied for its costs of the proceedings. The Registrar gave directions to the parties to file submissions, the respondent by 17 September 2013, and the applicant by 1 October 2013. The respondent filed its submissions on 12 September 2013, and there were no submissions from the applicant. The file was returned to me late in November. 2The respondent applied for an order for its full costs of the application and the response, including indemnity costs in accordance with the general rule at law that costs follow the event. I note at this point that the costs-follow-the-event rule does not apply in this Tribunal (see further below). 3On 3 December 2013 I requested the respondent to provide a fixed amount costs estimate, so that, if I was minded to accede to the application, I could make a final costs order. I have adopted this practice in recent years so as to avoid yet another point of dispute between parties. The request was copied directly to the review applicant. 4This led to a reply from the review applicant protesting that he had never received the respondent's submissions filed 12 September 2013. I gave him time to file. He filed submissions on 11 December 2013 responding to those submissions. The review applicant submitted that each party should bear their own costs. The submissions referred to the history of the dispute between the parties over the goods left on the respondent's land, and contended that the review applicant's interests had been dealt with in an improper way in various respects by the respondent and the respondent's solicitor. 5On 12 December 2013 the respondent's solicitor filed an estimate of professional costs and disbursements, $8082.92 in the form of an itemised bill prepared by the firm. On 18 December 2013 the respondent's solicitor filed substantive submissions replying to the review applicant's submissions. As to the review applicant's claim that he did not receive the respondent's submissions filed 12 September 2013, the respondent's submissions of 18 December 2013 annex a letter showing that it was copied by email to Paul Kilpatrick at Paul's email address. Paul Kilpatrick had appeared as non-lawyer agent for his father before me in the earlier proceedings, and was still recorded as his representative at that time. He was no longer recorded as representing his father when the file was returned to me, giving rise to the direct communication with his father.