Yammatree Pty Ltd (Applicant); North West Local Land Service (Respondent) [2015] NSWCATAD 221

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yammatree Pty Ltd (Applicant); North West Local Land Service (Respondent) [2015] NSWCATAD 221 Hearing dates: 26 August 2015 Decision date: 22 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery Senior Member Decision: That the Appellant is to pay the Respondent's costs of the proceedings from the time it received the Respondent's letter of 1 September 2014, as agreed between the parties or as assessed. Catchwords: Costs – special circumstances Legislation Cited: Local Land Services Act 2013 Civil and Administrative Tribunal Act 2013 Cases Cited: Chan v Commissioner of Fair Trading [2015] NSWCATAD 62 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Yammatree Pty Ltd v North West Local Land Service [2015] [2015] NSWCATAD 35 Category: Costs Parties: Yammatree Pty Ltd (Applicant) North West Local Land Service (Respondent) Representation: Counsel: C O'Neill (Applicant) P Russell (Respondent)

Solicitors: Rural Law (Applicant) Bell & Johnson (Respondent) File Number(s): 1410153

REASONS FOR DECISION 1. This decision deals with a costs application by the Respondent in relation to proceedings in the Tribunal. The Respondent was successful in its defence of an appeal brought against it under the Local Land Services Act 2013: see Yammatree Pty Ltd v North West Local Land Service [2015] NSWCATAD 35 2. The Respondent is a statutory corporation and its functions are, inter alia, to administer, deliver and fund local land services and to develop and implement appropriate governance arrangements for the delivery of local land services. The substantive matter concerned an appeal by Yammatree Pty Ltd ("the Appellant") in regard to two decisions of the Respondent: a refusal to issue a travelling stock permit for walk/slow travel from 25 February 2014 to 28 February 2014 ("the Refusal"); and the cancellation of Permit 6193 for walking a mob of cattle from Tantaranna to Millie and covering the period from 1 March 2014 to 14 March 2014. ("the Cancellation"). 1. The appeal was heard over several days and the decision was handed down on 11 March 2015. 2. In that decision I dismissed the appeal. However, the Appellant was successful in relation to a jurisdictional issue that was in dispute. 3. The Respondent has now sought its costs in relation to the appeal. Each of the parties has made written submissions in accordance with a timetable that was set by the Tribunal and an oral hearing was held on 26 August 2015. I reserved my decision after that hearing. 4. The Respondent's application is for an order that the Appellant pay its costs, and the application includes an estimate of the costs it has incurred. The Appellant opposes the application. 5. The Tribunal's power to award costs is set out in section 60 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). That section is in the following terms: 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 the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) 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. As can be seen from the section, the ordinary rule is that each party to proceedings before the Tribunal is to pay its own costs. Subsection 60(2) gives the Tribunal a wide discretion to award costs where it is satisfied that there are 'special circumstances' that warrant an award of costs. That is, the Tribunal must be satisfied there are 'special circumstances' and that these warrant an award of costs. 2. Section 60 (3) provides that the Tribunal may have regard to a range of factors. These include the subsection 60(3)(g) provision regarding "any other matter that the Tribunal considers relevant." It is clear that the factors set out in section 60(3)(a) to (f) are not meant to be an exhaustive list of what might constitute "special circumstances". 3. However, as the Appeal Panel noted in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, it does not follow that a costs order should be made because some factors are made out. 4. It remains necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs. 5. Subsection 60(3)(f) refers to the duty imposed by section 36(3). Section 36(1) of the NCAT Act sets out the "guiding principle" for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal. These are to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 6. Subsection 36(3) of the NCAT Act sets out the persons who are to co-operate with the Tribunal to give effect to the above guiding principles. These include (a) a party to proceedings in the Tribunal, and (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.