Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pillay v Ku-ring-Gai Council [2015] NSWCATAP 83 Hearing dates: 9 April 2015 Date of orders: 07 May 2015 Decision date: 07 May 2015 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President R Titterton, Senior Member Decision: Application for leave to appeal granted Appeal allowed The order made on 30 October 2014 is set aside Each party is to pay their own costs of the proceedings below and of the appeal Catchwords: Appeal – costs – whether special circumstances established – special circumstances not established Legislation Cited: Civil and Administrative Tribunal Act, s60 Government Information (Public Access) Act 2009 Residential Tenancies Act 2010 Cases Cited: Allplastics Engineering Pty Ltd v Dornoch Ltd Brown v Bennett (2002) 2 AER 273 Collins v Urban [2014] NSWCATAP 17 Dr Douglas v Lawton Pty Ltd (No 2) Oshlack v Richmond River Council ; Category: Principal judgment Parties: Charles Pillay (Appellant) Kuringai Council (Respondent) Representation: The appellant in person Mr Merlino, Solicitor (Respondent) File Number(s): AP 14/57328 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 30 October 2014 Before: M Cohen, Senior Member File Number(s): RT 14/32510, RT 14/41907 REASONS FOR DECISION Introduction 1. This is an appeal from a decision of the Civil and Commercial Division of the Tribunal of 30 October 2014. In that decision the Tribunal ordered the appellant to pay the respondent's costs in proceedings RT 14/32510 and in proceedings RT 14/41907. For the reasons that follow, we have decided to grant the appellant leave to appeal, and to allow the appeal. In lieu of the order of the Tribunal that the appellant pay the respondent's costs, each party should pay their own costs. Background 1. The appellant was the tenant of residential premises in Lindfield pursuant to a residential tenancy agreement dated 15 January 2014. The property had been acquired from the appellant by the respondent Council through forced rezoning. As part of the agreement with the respondent the appellant was permitted a leaseback period. 2. In proceedings RT 14/32510 and RT 14/41907 the appellant sought orders that a term of the residential tenancy agreement was void or partly void; an order amending a condition report; an order that a rent increase was excessive and an order for the repayment of rent and other payments made by the appellant, allegedly contrary to the Residential Tenancies Act 2010 (the RT Act) and the residential tenancy agreement; an order declaring that a termination notice served by the respondent was not given in accordance with the RT Act, and a order declaring that a termination notice had no effect because it was retaliatory. 3. Both proceedings were heard together by Senior Member Cohen on 24 September 2014 and a reserved decision was delivered on 7 October 2014. Prior to the hearing, orders had been made for the filing of documents to be relied on at the hearing. In the written reasons of 7 October 2014 the Tribunal noted that neither party had observed completely the terms of the directions made by the Tribunal on 8 July 2014 that all evidence of party's witnesses be in the form of a statement, statutory declaration, affidavit or expert report as appropriate. On that basis the Tribunal declined to permit the giving of oral evidence from any witness, and limited the parties to reliance on the documentary evidence that they had filed in the Registry within the prescribed periods, and the making of submissions. 4. The dispute about the condition report resolved prior to the hearing, and no further intervention was required by the Tribunal. Accordingly, no orders were made by the Tribunal in that respect, with that part of the application being dismissed. 5. The Tribunal described the "real issue" to be determined as whether, as the appellant (the applicant in the proceedings below) contended, proper notice of a rental increase had been given to him by the respondent, and whether the respondent had a proper basis to claim the increased rent. The Tribunal noted that resolution of the dispute turned on whether or not the respondent had given notice of the rent increase in accordance with s 41 of the RT Act. That section provided that at least 60 days' notice had to be given before increased rent was payable. 6. The appellant had submitted that the only notice he had received from the respondent of the rent increase was on 25 June 2014, by way of email notification, that the rent would increase on and from 15 July 2014. Accordingly the notice given in that notification of 25 June 2014 was insufficient to satisfy the requirements of s 41. The respondent submitted that it also gave notice in writing on 13 December 2013. However, it was unable to prove service of that notice of rent increase and the Tribunal found that the respondent had not given effective service of the notice of rent to the appellant. The consequence of these findings was that there was no increase in rent able to take effect from 16 July 2014. 7. It is necessary to record some observations about the letter of 13 December 2013. The appellant had contended at the hearing, and also in an email dated 17 September 2014, that the document was "apparently manufactured" on instructions from an authorised officer of the respondent. The Tribunal characterised this contention as an "unfortunate and unnecessary diversion" (see [31]), and as an "inflammatory and defamatory" allegation (see [32]) having "no objective basis" (see [32]). The Tribunal found that the appellant did not "come close" to proving the allegation of fabrication of the document, that the allegation was "wholly without foundation and entirely without merit", and "should never have been made" (see [37]). 8. Further the Tribunal described the allegation as "simply quite disgraceful" (see [57]). 9. At the conclusion of its reasons the Tribunal indicated that this allegation and other aspects of the appellant's conduct during the course of the hearing raised the question whether the appellant's conduct fell into the categories identified in s 60(3) of the Civil and Administrative Act 2013 (the Act), and consequentially whether special circumstances arose warranting an order that the appellant pay the respondent's costs of the applications. 10. Section 60 of the Act relevantly provides: (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. 1. The conduct referred to by the Tribunal was: 1. the claim of the appellant, described as "wholly unjustified" by the Tribunal ([57]), made in writing by email dated 17 September 2014 and repeated during the course of the hearing, that the respondent's agent had fabricated documents with the purpose of misleading the Tribunal; 2. an assertion by the appellant that the Tribunal member displayed actual bias ([58]); and 3. a "metricious show of preparedness" by the appellant to leave the hearing. ([59]) 1. The Tribunal stated that there were four matters which, when considered together, established special circumstances and warranted an order that the appellant pay the respondent's costs. These matters were: 1. the appellant succeeding on a "narrow" point, that had service been proved his application would have been dismissed; 2. the conduct of the appellant in advancing unfounded allegations against the real estate agent retained by the respondent causing a clear disadvantage to the respondent; 3. in consequence of (2) above, the hearing being "elongated by twice its necessary length" by an issue that "should never have been raised"; and 4. the conduct exhibited by the appellant being an evident breach of the duties owed pursuant to s 36(3) of the Act. Section 36(3) relevantly provides that a party to proceedings in the Tribunal is under a duty to co-operate with the Tribunal to give effect to the guiding principle (namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings) and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal. 1. The Tribunal allowed the appellant seven days from the receipt of its reasons to make submissions on the question of costs, after which time a decision would be made on the papers. 2. Written submissions were subsequently provided by the appellant. The respondent did not make submissions. The appellant advanced four reasons why he should be awarded costs: 1. costs follow the event; as he had been successful, he was entitled to an award of costs; 2. he was self-represented; 3. it is a question of law as to whether the Tribunal was able to make an order requesting a party to make an application for costs after the bearing had been concluded; and 4. costs were subject to an operative "Anshun estoppel". 1. The Tribunal rejected the first submission, noting that the submission was "wholly incorrect", that costs do not follow the event in this jurisdiction, and that the appellant had succeeded upon the "very narrow point" of whether the termination notice relied on by the respondent was able to be proved as having been served. 2. The Tribunal also rejected the second submission, namely that the appellant was self-represented. The Tribunal noted that while a certain latitude may be afforded to self-represented litigants with respect to a lower likelihood of their immediately grasping the significance of points of procedure, that "does not and can never extend to conduct that on any basis is unacceptable". The Tribunal went on to note that had the allegations made by the appellant during the course of the hearing been made outside the confines of the Tribunal, the appellant would have had no protection from the defamatory imputations conveyed by his allegations against the respondent's managing agent. 3. The Tribunal rejected the appellant's third and fourth submissions as misconceived. 4. In conclusion the Tribunal stated that the appellant did not appear to comprehend that making unfounded allegations was wrong in principle and should not have occurred. 5. Accordingly the Tribunal ordered the appellant to pay the respondent's costs of and incidental to the application. . The parties' submissions on appeal 1. The appellant's notice of appeal is dated 27 November 2014. He said that he had received notice of the decision on 14 November 2014. This was not challenged at the hearing by counsel who appeared for the respondent. Accordingly the notice was filed within time. 2. A number of bases for the appeal were advanced by the appellant. These included: 1. the tribunal member was vindictive and biased throughout the course of the hearing; 2. the tribunal member denied the appellant procedural fairness; 3. the costs order was unwarranted; and 4. the costs order made was unquantifiable and indeterminate. 1. After a brief discussion of the commencement of the hearing the appellant indicated the only matter being pursued on appeal was the appropriateness of the costs order. The appellant submitted that the costs order was against the weight of the evidence and not fair and equitable. He also submitted that new evidence demonstrated that it was appropriate for him to hold the views he did about the letter of 13 December 2013, and that he otherwise had a reasonable basis for making the assertion that the document had been manufactured. 2. The appellant in particular made submissions on each of paragraphs [61], [62], [63] and [64] of the Tribunal's reasons. These were the four matters, referred to above, which the Tribunal held warranted an award of costs. 3. As to para [61] (namely that the appellant's success was a "narrow" one) the appellant did not accept this characterisation of his success and submitted that there were other matters in which he been successful in the proceedings before the Tribunal. Regardless of whether or not the appellant was successful on other issues, we do not accept that the "narrowness" of his success could, of itself, justify a costs order as contemplated in s 60 of the Act. 4. As to para [62] (namely that the respondent was placed at a disadvantage by the appellant's conduct), the appellant submitted that this issue has been raised in correspondence with the respondent prior to the hearing and that accordingly the respondent would not have been at any disadvantage. We agree. In any event, we note that any potential disadvantage appears to have been minimised by the robust examination of the appellant by the Tribunal about these issues. 5. As to para [63], (namely that the hearing took twice as long to complete as it should have,) the appellant submitted that the hearing concluded well within time. He submitted that the hearing commenced at 9.15am, that it was set down for four hours, and that it concluded by 12pm. In those circumstances we agree that the length of the hearing of itself did not provide a basis for the Tribunal making an order for costs. Even if it did, we would have thought that an order for 50% of the costs may have been considered, not 100% of the costs incurred. 6. The final matter appears in para [64], namely that the conduct of the appellant was in breach of s 36(3) of the Act. The appellant submitted that any lack of co-operation by him with the Tribunal during the course of the hearing was caused by the Tribunal asking questions which made no sense to the appellant, causing him to pause and delay his responses while he tried to make sense of the questions. He also submitted that the Tribunal displayed a "bullying" attitude which again inhibited the appellant in his capacity to respond swiftly to questions asked. Regrettably, based on our reading of the transcript there appears to be some substance to this submission. For our part we are not persuaded that the appellant failed to co-operate with the Tribunal or failed to give effect to the guiding principle of facilitating the just, quick and cheap resolution of the real issues in the proceedings. Further the transcript reveals that the appellant and the senior member were on occasions at cross for purposes forcing the senior member to apologise to the appellant on one occasion. 7. As to new evidence, the appellant indicated that after the hearing and delivery of the substantive reasons he had submitted a request to the respondent under the Government Information (Public Access) Act 2009. That request sought access to information relating to the property. He received a response to that request on 21 November 2014. He submitted that the information he had received, namely certain email correspondence, supported his contentions that the letter of 13 December 2013 had been manufactured. 8. It is not necessary to consider this evidence or this submission. The question before the Appeal Panel is whether the appellant's conduct during the course of the hearing attracts the provisions of s60(3) of the Act. In this case it matters not whether information is discovered after the event, as that information could not have informed the appellant's views as to the genuineness of the 13 December 2013 letter at the time he made his allegations (namely before the hearing and at the hearing itself). 9. For its part, the respondent adopts the reasoning of the Tribunal, and relevantly submits that the decision of the Tribunal was "wholly fair and reasonable in the particular circumstances of the matter". Leave to appeal - principles to be applied 1. The Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may arise under s 80 of the Act. That section states that an appeal may be made as of right on any question of law (s 80(2)(b)) or with leave of the appeal panel on any other grounds (s 80(2)(b)). 2. Schedule 4, clause 12 of the Act says that an appeal panel may grant leave only if the appeal panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence , or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. We note that in Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred." 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban the Tribunal conducted a review of the relevant cases at [65]-[79] and concluded at [84]: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. We consider that the central issue in this appeal is whether or not the appellant, a non-lawyer, in making the assertion that he did about the landlord's agent's of 13 December 2013 letter behaved in a manner which made it appropriate for the Tribunal to award costs against him. The Tribunal in its reasons of 30 October 2014, and also in its reasons in the substantive matter, indicated that it was this matter which pre-occupied the Tribunal in its decision on costs. 2. Had the appellant been a lawyer, we think that there may have been a stronger basis in the Tribunal's various observations as to the inappropriateness of the assertions made. However we consider that there were a number of matters which, in our view, made it reasonable for the appellant, a non-lawyer, to form the view that he did given that his evidence was that he did not receive the letter. These include the following: 1. the terms of the letter of 13 December 2013 itself. There are a number of curiosities about the language used including (a) the reference to the transfer of management, in circumstances where the property had not been previously managed and (b) the reference to the appellant's "continued tenancy" in circumstances where the tenancy had not yet commenced 2. the exclusive management agency agreement between the respondent and their agent Ray White Gordon/St Ives was not signed until 16 December 2013; 3. the appellant's residential tenancy agreement was not signed and did not commence until 15 January 2014; and 1. In the above circumstances, we think it not unreasonable that the appellant could have held the suspicions he articulated at the hearing as to the genuineness of the letter of 13 December 2013. Having regard to s60(3)(c) of the Act there was in our view no basis for a conclusion that the appellant's claim was one which had no tenable basis in fact or law. Accordingly we consider that the Tribunal was not justified in forming the view it did as to the appellant's conduct, and that the special circumstances found by the Tribunal in relation to its decision on costs was not established. 2. In addition, we also consider that there isa punitive element in the effect of the costs order. The purpose of an order for costs is to compensate the person in whose favour it is made, not to punish the person against whom the order is made: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [34]; Dr Douglas v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22]. We also note that in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] McHugh J explained the "important principle" that: Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. 1. In our view the findings that the hearing was elongated by twice its necessary length by virtue of the appellant's conduct was a finding that was not fair and equitable and against the weight of evidence. Accordingly, in our view having regard to s60(3)(b), it was not reasonable to conclude that the appellant prolonged unreasonably the time taken to complete the proceedings. Similarly the finding that the appellant breached the obligations under s36(3) of the Act was in our view not fair and equitable and against the weight of evidence. 2. We are of the view that the decision the subject of the appeal raises an issue of principle. The Tribunal described the appellant's conduct as being conduct "that on any basis is unacceptable". There are restraints on lawyers pleading dishonesty and these restraints are reflected in the codes of conduct which regulate the profession. Generally speaking it is improper for a lawyer to plead fraud or dishonesty if it was unreasonable or reckless to do so. As Neuberger J (as he then was) said in Brown v Bennett (2002) 2 AER 273 at p310 "it would only be if the lawyer's conclusions that he could plead a claim for dishonesty was one which no reasonable lawyer, properly considering matters, could have reached, that it can be criticised as being improper." However, here the appellant is not a lawyer and it is the opinion of the Appeal Panel that the decision below was in error in appearing to make no, or at least no sufficient, distinction between the obligations owed by lawyers compared with those owed by self-represented parties. It is not necessary for this decision to identify the precise obligations which a self-represented (non lawyer) party may have to the Tribunal in alleging fraud or dishonesty, It is sufficient to say that the decision raises a question of principle and that the appeal panel is of the view that a substantial miscarriage of justice has occurred for the reasons given earlier in these reasons. Costs of the Appeal 1. The appellant also sought an order that, if successful on appeal, the Appeal Panel make an order that the respondent pay his costs of the appeal. Precisely the same principles apply to this application as we have discussed above, namely the primary rule stated in s 60 is that each party in proceedings is to pay their own costs. While we have sympathy for the appellant and the expenditure he incurred in pursuing his appeal (in particular the $1,247 of photocopying), we do not consider that are any special circumstances established as required by s 60 of the Act as warranting an award of costs. This application must be refused. Conclusion 1. This was a matter in which the appellant, not having established an error of law by the Tribunal, required the leave of the Appeal Panel for the appeal to proceed. We are persuaded that the appellant did suffer a substantial miscarriage of justice, and leave should be granted and the appeal allowed. 2. For these reasons, the Appeal Panel makes the following order: 1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The order made on 30 October 2014 is set aside. 4. Each party is to pay their own costs of the proceedings below and of the appeal. 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 Amendments 13 May 2015 - file number corrected 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: 13 May 2015