Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bojkovski v NSW Land and Housing Corporation [2017] NSWCATAP 69 Hearing dates: On the papers Date of orders: 31 March 2017 Decision date: 31 March 2017 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President Decision: The Respondent's application for costs is refused. Catchwords: COSTS –Appellant's application for appeal to be reinstated refused – whether Tribunal should order the Appellant to pay the Respondent's costs – special circumstances required - failure to provide material to Respondent as directed – late compliance with the timetable – disadvantage to Respondent - Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50, s 60 Category: Costs Parties: Borko Bojkovski (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: D Woods (Respondent) Solicitors: FACS Legal (Respondent) File Number(s): AP 16/04443 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 15 January 2016 Before: F Holles File Number(s): SH 15/55620 REASON FOR DECISION Overview 1. NSW Land and Housing Corporation has applied for the Appellant, Mr Bojkovski, to pay its costs of the appeal from 12 January 2017, the day it received notice of Mr Bojkovski's application for reinstatement of the appeal. The general rule is that each party pays their own costs unless there are special circumstances which warrant a costs order: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 60. 2. The Appellant did not comply with the timetable for providing evidence and submissions on the reinstatement issue nor did he provide his late submissions to the Respondent. But the delay was minimal and the Respondent was not unduly disadvantaged. The Appellant did not have a lawyer and English is not his first language. For the reasons given below, the circumstances of this case do not warrant a costs order being made against him. 3. I have decided to determine this matter on the papers. I gave the parties an opportunity to make submissions on that point. I am satisfied that the issues for determination can be adequately determined in the absence of the parties: NCAT Act, s 50. Background 1. The Appellant is a social housing tenant. On 27 January 2016 he lodged a notice of appeal from a decision of the Tribunal that he pay the landlord, New South Wales Land and Housing Corporation, money he owed for rent and water usage. The total amount in dispute was $323.10. On 23 February 2016 the Appellant attended a call over and was assisted by a Macedonian interpreter. The matter was adjourned because of a pending appeal to the Housing Appeals Committee. It was re-listed for further call over on 3 May 2016. The Appellant was present on that date and the appeal was set down for hearing on 5 September 2016. 2. The history of the matter since then is set out in the Appeal Panel's unreported decision refusing the Appellant's application to reinstate the appeal: On 29 August 2016 Mr Bojkovski's daughter wrote to the Tribunal on her father's behalf saying that her father would not be able to attend the hearing on 5 September 2016 because she was getting married on 2 September 2016 in Queensland and he was attending the wedding. She requested that the hearing be rescheduled. The Appeal Panel wrote to her on 30 August 2016 saying that a request could not be considered until she had sought the other party's comments and provided them to the Tribunal. The letter emphasised that the matter remained listed for hearing and that the application for adjournment may be pursued at the hearing itself. After receiving advice dated 7 September 2016 that the appeal had been dismissed for non-appearance, Mr Bojkovski wrote to the Tribunal on 10 October 2016 saying that he had missed the hearing because he was overseas. He said he had since returned and would appreciate the Appeal Panel continuing to hear the matter. The Tribunal wrote to him on 12 January 2017 directing that he provide evidence and submissions in support of his application for reinstatement by 23 January 2017 and that the Respondent provide evidence and submissions in reply by 3 February 2017. The submissions were to include the parties' views as to whether the issue of reinstatement could be decided on the papers: NCAT Act, s 50(2). The Respondent provided written submissions dated 2 February 2017 which were received by the Tribunal on 6 February 2017. Despite their lateness, I have taken them into account. Mr Bojkovski did not give a copy of his evidence and submissions to the Respondent so their response does not take anything Mr Bojkovski has said into account. On 24 January 2017 the Tribunal received a statutory declaration from Mr Bojkovski stating that he was overseas until 30 August 2016, six days before the hearing. He said that he was so exhausted from the trip that it took him 10 days to recover. He also said that two days after coming back to Australia he had to go to St George Hospital urgently to get some information about his health condition. He attached medical reports including a document from St George Hospital stating that he had been discharged from the Emergency Department on 30 August 2016 after he presented with chest pain. I have decided to determine this matter on the papers. I have given the parties an opportunity to make submissions on that point but no submissions were made. I am satisfied that the issues for determination can be adequately determined in the absence of the parties: NCAT Act, s 50. The Respondent opposed extending time for Mr Bojkovski to lodge this application for reinstatement: NCAT Act, s 41. Under rule 36 of the Civil and Administrative Tribunal Rules 2014, Mr Bojkovski was required to apply for reinstatement within 7 days of the Appeal Panel dismissing the proceedings. The letter advising Mr Bojkovski of the dismissal is dated 7 September 2016. Even if Mr Bojkovski did not receive that letter for a week, he did not apply for reinstatement until 10 October 2016. However, the letter from the Registry advising Mr Bojkovski of the dismissal did not state that he needed to apply for reinstatement with 7 days. He applied relatively promptly after receiving the letter and I extend time for him to make that application. Mr Bojkovski was on notice after receiving the Tribunal's letter of 30 August 2016 that the appeal had not been adjourned. He did not attempt to contact the Tribunal prior to the hearing or on the hearing date to say that he was not able to attend. I am satisfied that he was able to contact the Tribunal or to ask someone else to do so on his behalf. I am not satisfied that Mr Bojkovski has provided a reasonable explanation for his failure to attend the hearing on 5 September 2016. He has provided three different explanations for his failure to attend – first, that he would be attending his daughter's wedding in Queensland, second, that he was overseas, and third, that he was in Australia but he was exhausted after his travels. He also provided evidence that he had been discharged from the Emergency Department of St George Hospital on 30 August 2016 after reporting chest pains. I find that being exhausted after travelling overseas and attending hospital for chest pains 6 days before the hearing are not reasonable explanations for not attending the hearing. There is no medical evidence supporting Mr Bojkovski's inability to attend the hearing on 5 September 2016. I refuse Mr Bojkovski's application for reinstatement. 1. On 2 March 2017 the Appellant and his daughter wrote to the Appeal Panel providing further evidence for the reasons for non-attendance at the hearing on 5 May 2016. They were told in a letter of 14 March 2017 that the Appeal Panel had already made its decision and it could not be varied. The law on costs 1. Section 60 of the NCAT Act sets out the general rule that each party is to party their own costs. It then lists the matters to which the Tribunal may have regard in determining whether there are special circumstances warranting an award of 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. The circumstances which the Respondent said justified an award of costs since 12 January 2017 are that the Appellant: 1. continually failed to serve documents on the Respondent that he had lodged with the Tribunal. That was said to amount to conducting proceedings in a way which unnecessarily disadvantaged the Respondent: NCAT Act, s 60(3)(a); 2. making a late application to reinstate the appeal. That was said to amount to being responsible for prolonging unreasonably the time taken to complete the proceedings: NCAT Act, s 60(3)(b); and 3. brought proceedings that lacked substance and were frivolous: NCAT Act, s 60(3)(e). 1. I have not taken into account circumstances which the Respondent said had occurred between the parties in other proceedings because they are not relevant. Failing to serve documents on Respondent 1. The Appeal Panel directed the Appellant to provide his evidence and submissions on the reinstatement application by 23 January 2017. He provided a statutory declaration on 24 January 2017, one day late. He did not give a copy of that document to the Respondent. The Respondent's submissions dated 2 February 2017 were received by the Appeal Panel on 6 February 2017. They were made without the benefit of the Appellant's evidence and submissions. 2. The Appellant's failure to provide evidence and submissions to the Respondent unnecessarily disadvantaged the Respondent. But the Appeal Panel has decided in favour of the Respondent and refused to reinstate the appeal. The Appellant was not represented by a lawyer and English is not his first language. He may not have understood that he was obliged to give copies of all evidence and submissions to the Respondent. Even if he did understand his obligations, the disadvantage has not resulted in any decision adverse to the Respondent's interests. Late application to reinstate the appeal 1. As I said in the reasons relating to the application for reinstatement, the Appellant wrote to the Tribunal on 10 October 2016 saying that he had missed the hearing because he was overseas. He said he had since returned and would appreciate the Appeal Panel continuing to hear the matter. The Tribunal did not make directions as to the filing of evidence and submissions on the reinstatement application until 12 January 2017. In circumstances where the delay was the Tribunal's rather than the Appellant's, and the Appeal Panel extended time to lodge the reinstatement application, the Appellant is not responsible for prolonging unreasonably the time taken to complete the appeal. Bringing proceedings that were lacking in substance and frivolous 1. The Appellant's only ground of appeal was that, in the hearing before the Tribunal below on 15 January 2016, he was not given a chance to explain his version of events or the opportunity to provide relevant documents. I understand the Appellant to have been submitting that the Tribunal has conducted the hearing in a procedurally unfair manner. 2. According to the Respondent, despite being given every opportunity to provide evidence as to what occurred at the hearing, the Appellant has not done so. The appeal had little or no prospects of success and should never have been brought. 3. The difficulty with this submission is that the Appeal Panel dismissed the appeal because the Appellant did not attend. No decision was made as to the merits of the appeal and I am not in a position to express a view on that matter without hearing evidence and submissions from both parties. Conclusion 1. For the Appeal Panel to make an order awarding costs to one party, special circumstances must exist. The Appellant did not apply within 7 days for his appeal to be reinstated but the Appeal Panel extended the time. It was the Tribunal's, not the Appellant's delay, in directing the parties to provide evidence and submissions on the reinstatement application. The Appellant was a day late in providing his evidence submissions. He did not give that material to the Respondent, and the Respondent was disadvantaged because it provided submissions in reply without the benefit of the Appellant's material. Despite that fact, the ultimate decision not to reinstate the appeal was in the Respondent's favour. In my view the circumstances of this case are not special and do not justify an order for costs. Order The Respondent's application for costs is refused. ********** 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: 31 March 2017