Kida Park Pty Ltd t/as Capital Steel Buildings v Shirleena Rutten [2015] NSWCATAP 78

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kida Park Pty Ltd t/as Capital Steel Buildings v Shirleena Rutten [2015] NSWCATAP 78 Hearing dates: On the papers Date of orders: 27 April 2015 Decision date: 07 May 2015 Jurisdiction: Appeal Panel Before: Dr J Renwick SC, Senior Member Ms K Rosser, Senior Member Decision: (1) Kida Park Pty Ltd t/as Capital Steel Buildings is to pay Shirleena Rutten the sum of $143.85 immediately. (2) The application for costs made by Kida Park Pty Ltd t/as Capital Steel Buildings is dismissed.. Catchwords: Costs – relevant test – special circumstances Cases Cited: Civil and Administrative Tribunal Act 2013 Category: Costs Parties: Kida Park Pty Ltd t/as Capital Steel Buildings, Appellant / Applicant Shirlena Rutten, Respondent Representation: Mr D Goldsmith, Director for the Appellant / Applicant Respondent in person File Number(s): AP 14/58299 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Commercial and Consumer Division Date of Decision: 13 October 2014 Before: D Barnetson, General Member File Number(s): HB 14/34044

REASONS FOR DECISION 1. On 3 March 2015, the Appeal Panel refused an extension of time in which to lodge an appeal and the application for leave to appeal itself, and ordered that any application for costs by the successful respondent, Ms Rutten, was to be made within seven days. That order was complied with. The unsuccessful appellant/applicant [Kida Park] also made an application for costs. We now consider those applications. 2. Costs are dealt with in s 60 of the Civil and Administrative Tribunal Act 2013 ('the Act') which section 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. We note that 'costs' is not defined elsewhere in the Act. It therefore bears its normal meaning. 2. The High Court's judgment in Cachia v Hanes (1994) 179 CLR 403 establishes the general principle that where the expression 'costs' is used in a general sense, it is confined to money paid or liability incurred for professional legal services and thus does not include compensation for time spent by a litigant who is not a lawyer preparing and conducting his or her case. In effect, the 'costs' to which an unrepresented litigant may be entitled are limited to out-of-pocket expenses. 3. An unsuccessful party is obviously not entitled to costs. Kida Park's application for costs is accordingly dismissed. 4. Ms Rutten has applied for costs incurred in conducting the appeal as a self-represented litigant. The categories of costs she seeks to recover are loss of earnings, stationery, printing and postage incurred in providing documents to the Tribunal in accordance with orders of the Tribunal, travel, meals and parking fees, and an expert witness defect inspection response report. 5. In our opinion, having considered Ms Rutten's submission and the factors set out in s 60 of the Act, we do not consider there are special circumstances generally warranting an award of the costs claimed by Ms Rutten. Further, even if we did consider that there were special circumstances warranting an award of costs, the loss of earnings claim made by Ms Rutten is not in respect of out-of-pocket expenses and could not be ordered in her favour and another expense - the cost of the expert witness defect inspection response report - while it is an out-of-pocket expense, was not relevant to the decision made by the Appeal Panel. 6. However, Kida Park's submission concedes the cost of stationery, printing and postage claimed by Ms Rutten. That part of the costs claim totals $143.85. We are satisfied that such a concession is of itself a special circumstance warranting an order for costs in the sum conceded. We note that Kida Park also conceded part of Ms Rutten's loss of earnings claim. However, as noted above, loss of earnings is not an out-of-pocket expense that can be awarded as costs to a self-represented litigant. 7. We therefore order Kida Park to pay Ms Rutten costs in the sum of $143.85 only. 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: 07 May 2015