Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Reskella v Xiang [2015] NSWCATAP 23 Hearing dates: 3 February 2015 Date of orders: 25 February 2015 Decision date: 25 February 2015 Jurisdiction: Appeal Panel Before: Dr J Renwick SC, Senior Member S Thode, Senior Member Decision: The appeal is dismissed under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013. The application for an order for costs is dismissed Catchwords: Application for costs –the Appeal Panel is not part of the Consumer and Commercial Division for the purposes of rule 38 – no special circumstances otherwise justifying an order for costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Rules Cases Cited: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Cripps v G & M Mawson [2006] NSWCA 84 Texts Cited: Nil Category: Principal judgment Parties: Applicant: Adam Reskella t/as Custom Productions Respondent: Janie Xiang Representation: Solicitors: Applicant: no appearance Respondent: G Aronstan, Gerard Aronstan Solicitor & Attorney File Number(s): AP 14/46556 Publication restriction: No restriction Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 20 August 2014 Before: B Howe File Number(s): HB 13/57996 Judgment 1. The Appeal Panel had before it an application to appeal, and for leave to appeal, and for an extension of time, from two decisions of the Consumer and Commercial Division. These matters were listed for the hearing of the appeal on 3 February 2015. The appellant did not then appear, and the tribunal was then advised by the solicitor for the respondent that he had spoken to the appellant the preceding day and he had been advised by the appellant that he did not wish to proceed with his appeal, nor did he intend to appear before the tribunal to advise that was so. 2. In the circumstances, the matter was dismissed under s 55(1)(c) of the Civil and Administrative Tribunal Act ('the Act'). 3. The respondent then applied for an order for costs. 4. The respondent asserted that Civil and Administrative Tribunal Rule 38 applied. This states: 38 Costs in Consumer and Commercial Division of the Tribunal (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. The significance of this rule, if applicable, is that it is easier to obtain an award for costs compared to the circumstances where s 60 of the Act applies. Section 60 provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (5) In this section: "costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. The question which first arises is whether rule 38 applies at all in view of rule 38(1) which has previously been set out. Our conclusion is that the rule does not apply because of the terms of s 16 of the Act which provides as follows: 16 Divisions of Tribunal (1) On the establishment of the Tribunal, there are to be the following Divisions of the Tribunal: (a) the Administrative and Equal Opportunity Division, (b) the Consumer and Commercial Division, (c) the Occupational Division, (d) the Guardianship Division. (2) The functions of the Tribunal in relation to enabling legislation that are allocated to a Division of the Tribunal are to be exercised in that Division. (3) The functions of the Tribunal in relation to enabling legislation that are allocated to a Division of the Tribunal are the functions in relation to such legislation that are allocated to the Division by the Division Schedule for the Division. (4) However, the functions of the Tribunal when constituted by an Appeal Panel or in exercise of its enforcement jurisdiction are not allocated to any particular Division of the Tribunal. (5) A Division of the Tribunal is composed of such members as are assigned to it by or under this Act. (6) If the functions allocated to a Division of the Tribunal are reallocated to another Division as a result of amendments made to this Act by amending legislation, any proceedings that were instituted or commenced in the Tribunal before the reallocation may continue to be dealt with and determined as if the reallocation had not occurred unless the amending legislation provides otherwise. 1. It is clear from s 16(4) that an appeal panel is not "allocated to any particular division of the tribunal" including of course, the Consumer and Commercial Division. That being so, the rule is inapplicable and s 60 applies. That was also the conclusion of the Appeal Panel in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120, whose reasoning we adopt on this point. 2. As to the s 60 application, the 'special circumstances' relied upon by the respondent appear to be only that in the appeal (as opposed to the proceedings below, where there is a separate as yet undetermined application for costs): 1. There had been some delays by the appellant in filing the material for the appeal. 2. The appeal had been discontinued. 1. In our opinion, those actions cannot engage any of the particular matters in s 60(3)(a-e) and nor was it suggested that they did. It may engage s 36(3), namely the duty on the parties to cooperate. However, any breach of that duty did not itself occasion additional or unusual costs. The delay itself did not obviate the need for the respondent to prepare for the hearing in the normal way, and the fact the appellant advised the respondent the day before the hearing as occurred here, equally did not do so. Although it was discourteous of the appellant not to advise the tribunal that he would not be appearing and that he did not wish to proceed with the appeal, that of itself in our opinion does not amount to special circumstances: see Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60]. 2. For those reasons, the application for an order for costs is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 25 February 2015