Civil and Administrative Tribunal New South Wales Medium Neutral Citation: T & S Nominees v Chief Commissioner of State Revenue (Costs) [2017] NSWCATAP 104 Hearing dates: On the papers Date of orders: 11 May 2017 Decision date: 11 May 2017 Jurisdiction: Appeal Panel Before: K O'Connor, AM, ADCJ, Deputy President, Appeals J McAteer, Senior Member Decision: The appellant is to pay the respondent's costs of the appeal, including the application for reinstatement, as agreed or assessed. Catchwords: COSTS – Respondent's application for costs of appeal – Whether special circumstances – application granted. Legislation Cited: Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: T & S Nominees Pty Ltd (Appellant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: C Ensor (Respondent) Solicitors: Crown Solicitor (Respondent) File Number(s): 16/37429 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSCATAD 119 Date of Decision: 16 June 2016 Before: S Frost, Senior Member File Number(s): 1410439 Reasons for Decision 1. These reasons deal with an application by a respondent to an appeal for costs following the dismissal of the appeal. 2. In the remainder of these reasons for the sake of clarity we will refer to the applicant for costs (the respondent to the appeal) as 'the Chief Commissioner' and respondent to that application (the appellant in the appeal) as 'the Company'. 3. The Tribunal at first instance summarily dismissed the Company's review application: T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSCATAD 119 (the First Instance Decision). The Company filed a Notice of Appeal within the time required. The review applicant failed to appear at the first directions hearing. The appeal was dismissed for want of appearance. The review applicant applied to the Appeal Panel for reinstatement of the appeal, as is permitted in cases of failure to appear. 4. The application for reinstatement was a day late. The Company applied to the Appeal Panel to exercise its discretion to extend time and hear the reinstatement application. In light of the matter's history, and for other reasons set out in our decision, we refused to extend time, with the result that the dismissal decision stood: T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAP 6 (the Reinstatement Decision). 5. The decision was published on 6 January 2017. The Chief Commissioner had foreshadowed in its submissions the possibility of an application for costs if it was successful. 6. In those reasons we asked the Chief Commissioner to advise the Tribunal by 17 January 2017 if it intended to pursue a costs application, and directions would be made. The Chief Commissioner so indicated, a timetable for filing of submissions was set and later varied, to allow the Chief Commissioner to file by 9 February 2017 and the Company by 27 February 2007. 7. The Chief Commissioner filed submissions in writing on 9 February 2017. On 15 February 2017 the Tribunal Registry received a letter from Milly Haddad expressed to be on behalf of Samira Haddad (persons whose relationship to the affairs of the Company is canvassed in the First Instance Decision), followed by the words 'Directors of T & S Nominees Pty Ltd on 15 February 2017'. There was no evidence that the letter had been copied to the Chief Commissioner. The Registry forwarded it to the Chief Commissioner on 1 March 2017. There has been no further correspondence from either of the parties. 8. The letter included an application for extension of time to make submissions. The application stated that it, the Company, was having difficulty obtaining legal representation. No evidence as to why that was a real difficulty was provided. The application is inadequate. It is refused. No submissions were filed prior to the deadline of 27 February 2017. 9. The letter also referred to the decision recorded in the principal decision by the presiding member not to disqualify himself in relation to a possible conflict (raised with the parties two days after the hearing and six weeks before the decision was delivered). The possible conflict was dealt with in the principal decision. The presiding member decided not to recuse himself. The letter did not raise any new considerations in relation to the matter. The decision will not be revisited. 1. In the directions, we foreshadowed the possibility that we might decide to dispense with a hearing and decide the matter on the papers. The Chief Commissioner did not express any view in the submissions filed 9 February 2017. The Company's letter of 15 February 2017 did not address the matter. The application is, we consider, suitable for determination without a public oral hearing and it is dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). 1. Costs do not follow the event in the Tribunal, either at first instance or before the Appeal Panel. Section 60 of the NCAT Act 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 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 Chief Commissioner, in support of his application, referred to the history of the proceedings, and relied on some of the factors listed in 60(3). We will not recapitulate the history of the proceedings. It is set out in detail in the First Instance Decision, and summarised in the Appeal Decision. In brief, the Tribunal found established that the proceedings lacked substance and there had been a want of prosecution by reason of the failure to appear at the principal hearing on 1 and 2 February 2016. 2. The Company sought by its Notice of Appeal to have that ruling reversed, and the matter remitted for hearing on the merits. In exercising our discretion to extend time, we considered a number of matters, including that the appeal was not, in our view, 'fairly arguable'. 3. The respondent submits that the lack of tenability of the appeal and the history of the proceedings are 'special circumstances' that fall within the scope of, respectively, paragraphs (c) and (g) of s 60(3). We agree. 4. It is also highly material, we consider, that there was an order for costs at first instance made against the Company covering the last part of the period the matter was before the Tribunal, the period as from 20 January 2016 until the delivery of its reasons on 16 June 2016. The First Instance Decision dealt with that costs issue at paras [49] to [53] of its reasons. 5. The application for review had been lodged on 14 August 2014. It went through several directions hearings in the Tribunal. There was a history of non-compliances and delays, mainly, but not only, on the Company's side. The Commissioner applied for dismissal on more than one occasion during 2015. The procedural history appears at paras [17]-[23] of the First Instance Decision. 6. The Tribunal did not award costs against the Company in relation to the period 14 August 2014 and 19 January 2016. It applied the usual rule that each party bear its own costs. (It is not clear from the reasons for decision whether that period was part of the Commissioner's costs application.) 7. However, the Tribunal did make an order for costs for the remaining period, as previously noted, commencing 20 January 2016. As to that, the Tribunal said: The Chief Commissioner submits that the Applicant's failure to attend the hearing answers the description in both paragraphs (a) and (b) of s 60(3). I agree. Under paragraph (f) of s 60(3), the Tribunal may have regard to whether a party has refused or failed to comply with the duty imposed by s 36(3) of the NCAT Act. That duty is to co-operate with the Tribunal to give effect to the 'guiding principle' (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. Plainly the Applicant, by continuing to fail to comply with the Tribunal's directions to file and serve evidence and submissions in reply, has not complied with that duty. The Applicant failed to notify the Tribunal and the Chief Commissioner in a timely fashion as to the reasons for that continuing non-compliance; it failed to respond adequately, and in a timely fashion, to the Chief Commissioner's correspondence in January 2016 seeking an indication as to whether the Applicant required the Chief Commissioner's witnesses for cross-examination, causing the Chief Commissioner to incur, unnecessarily, the expense of transport and accommodation for those witnesses; and it left it almost literally to the last minute to notify the Chief Commissioner and the Tribunal that its legal representative did not have instructions to appear at the hearing on 1 February 2016. I am satisfied, on the basis of those considerations, that special circumstances warranting a departure from the general rule, that each party bear its own costs, have been established. It is appropriate, in my view, that the Chief Commissioner's costs since 20 January 2016 be borne by the Applicant. Early and adequate communication by the Applicant to the Respondent would have prevented the unnecessary incurring of costs by the Chief Commissioner. Those costs, as outlined in Exhibits R4 and R5, should be met by the Applicant. 1. An appeal puts the successful party at first instance to the cost and administrative burden of another round of litigation. In circumstances where the unsuccessful party's proceedings have been dismissed summarily at first instance, accompanied by a costs order, and dismissed again summarily on appeal, there clearly are special circumstances of the strongest kind favouring the making of the same order on appeal. Accordingly, we will make the order sought by the Chief Commissioner. 2. In the opening paragraphs of her written submissions, counsel for the Chief Commissioner confirmed the application first made in the Reply to the appeal filed 2 August 2016 that the Chief Commissioner would be seeking an order for the costs of the appeal. She described the proposed order in these terms: '[an] order that the [the Company] pay its complete costs of the appeal'. 3. In her proposed form of order at the end of the submissions, she asked for an order that 'the [Company] pay the [Chief Commissioner's] costs of the proceeding number AP 16/32589, as agreed or assessed'. That is the number that was allocated to the application for reinstatement of the appeal. The appeal itself had the file number 16/37429. On 4 August 2016 the Appeal Panel had made the order for dismissal for non-appearance. It ordered the Company to pay the Chief Commissioner's costs thrown away by the applicant's failure to appear that day. 4. It is unclear to us whether such an order is to be interpreted as the costs thrown away in relation to the entire appeal, or merely the costs of attendance of the day. 5. We will proceed on the basis that the Chief Commissioner's application is for the entire costs of the appeal, and the reference to the reinstatement application file number does not set a boundary. For the avoidance of any doubt, we will make one global order for the costs of the appeal including the costs of the reinstatement application. It supersedes the order made 4 August 2016. Order The appellant is to pay the respondent's costs of the appeal, including the application for reinstatement, as agreed or assessed. ********** 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: 11 May 2017