BDK v Department of Education and Communities (No 2) [2015] NSWCATAP 176

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BDK v Department of Education and Communities (No 2) [2015] NSWCATAP 176 Hearing dates: On the papers Date of orders: 18 August 2015 Decision date: 18 August 2015 Jurisdiction: Appeal Panel Before: Acting Judge K P O'Connor, AM, Deputy President, Appeals Emeritus Professor M Chesterman, Principal Member Decision: Appellant to pay the respondent's costs of the appeal, fixed at $4000. Catchwords: COSTS – provisional view that appellant pay respondent's costs – special circumstances – vexatious conduct - consideration of written submissions – provisional view confirmed: Civil and Administrative Tribunal Act 2013, s 60. Legislation Cited: Civil and Administrative Tribunal Act 2103 Cases Cited: - Texts Cited: - Category: Costs Parties: BDK (Appellant) Department of Education and Communities (Respondent) Representation: Appellant (in person)

Mr J McDonnell, solicitor, Crown Solicitor's Office (Respondent) File Number(s): 14/57510 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2014] NSWCATAD 186 Date of Decision: 3 November 2014 Before: Naida Isenberg, Senior Member File Number(s): 133369

REASONS FOR DECISION 1. This decision is supplementary to the main decision in this matter, issued 3 July 2015: BDK v Department of Education and Communities [2015] NSWCATAP 129. 2. The appellant's appeal was unsuccessful, and we dealt at the close of the decision with an application from the respondent for an order for costs. The ordinary rule in appeal proceedings is that each party bears their own costs. It is subject to the exception that a costs order may be made if there are special circumstances justifying that course. In our main decision, we expressed the provisional view that the respondent's application was justified: see reasons, [78]-[86]. 3. The respondent's costs application was made in its written submissions, filed as part of the pre-hearing timetable. It was the subject of a response in the appellant's written submissions in reply. We were concerned that at the oral hearing that the appellant may not have an adequate opportunity at the oral hearing to respond to further information filed by the respondent at the beginning of the oral hearing (notably an estimate of costs incurred to date). According to our record of the oral hearing, the appellant, a litigant in person, did not respond to the costs application and the estimate of costs during the oral hearing. We felt it better therefore not to make a final order, but to give the appellant an opportunity to respond in writing to our provisional view, and gave directions to allow the parties to file written submissions, and to address the question of whether the matter might be dealt with on the papers. We said: 83 In our view the appellant should pay the Department's costs of the appeal in a fixed amount. Fixing amount has the benefit of avoiding any further contest of the kind that an order allowing costs to be 'assessed' might produce. 84 Our provisional view is that an order for $4000 is appropriate. 85 The Appeal Panel proposes to deal with the issue without holding an oral hearing (as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013, unless either party makes submissions pursuant to s 53(3) of the Act as to why an oral hearing is preferable, and that submission is accepted by the Appeal Panel. 86 We make the following directions: Direction to the appellant to file and serve submissions in writing in relation to the proposed quantum of the costs order within 14 days of the date of publication of this decision, and any submission in to the question of whether to proceed without an oral hearing; and, if the appellant makes submissions, to the respondent to file and serve any submissions in reply within 7 days. 1. The respondent filed submissions on 17 July 2015. The appellant filed submissions in reply on 30 July 2015. 2. The respondent's submissions make a number of objections to the reasons we gave for dismissing the appellant's appeal. Our directions were concerned only with the costs issue. The Appeal Panel has completed its role in relation to the substance of the appeal, and is functus officio in that respect. She addresses costs at point 58 of those submissions. She submits that on no account should she be required to pay costs in circumstances where the Tribunal at first instance took account, wrongly in her view, documents produced by her daughter, Mrs K, the mother of the boy whose treatment by the respondent in 2009 is the ultimate origin of the present proceedings. She submitted that those documents were produced to the Tribunal, wrongly, by the respondent, thereby increasing costs and workload unnecessarily. 3. In reply the respondent submitted that, in circumstances where the issue before the Tribunal at first instance and the Appeal Panel was whether the appellant was motivated by a collateral purpose in commencing the proceedings, it was appropriate and necessary to rely upon documents demonstrating the factual context in which the respondent commenced the present proceedings. The submissions drew attention to the reasons at first instance, paras [29]-[30], which took that material into account. 4. We agree with the respondent's submission. 5. As the respondent's submissions noted, the appellant's submissions do not address the issue of the quantum of the respondent's costs, or the question of whether an oral hearing should be held in relation to that quantum. The respondent expressed itself satisfied with the Tribunal's provisional view that an order for costs in the fixed amount of $4,000 is appropriate. 6. There is nothing in the appellant's submissions relevant to the question of costs that affects our provisional view. Accordingly, we will make a final order in the same terms.