Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Plath v Snowy Monaro Regional Council [2019] NSWCATAP 212 Hearing dates: 21 May 2019 Date of orders: 22 August 2019 Decision date: 22 August 2019 Jurisdiction: Appeal Panel Before: Armstrong J, President S Westgarth, Deputy President Decision: (1) A hearing on the question of costs is dispensed with; and (2) The respondent's application for a costs order is dismissed. Catchwords: Costs – special circumstances – exercise of discretion Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Fair Trading Act 1987 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Costs Parties: Graeme Darcy Plath (Appellant) Snowy Monaro Regional Council (Respondent) Representation: Solicitors: Appellant (Self Represented) M Herbert (Respondent) File Number(s): AP 19/10413 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 30 January 2019 Before: P Boyce, Senior Member File Number(s): GEN 18/36167 REASONS FOR DECISION Background 1. On 4 July 2019 we dismissed the appellant's appeal. We made directions for the respondent to file and serve any submissions seeking a costs order and a direction for the appellant to file and serve submissions in response. Those submissions have been received and this decision concerns the respondent's application for an order that the appellant pay its costs of the appeal. 2. The appellant was the applicant in the first instance proceedings brought in the Consumer and Commercial Division of the Tribunal in which the appellant sought to invoke the Tribunal's jurisdiction under the Fair Trading Act 1987 (NSW) (FT Act) on the basis that the appellant was a consumer and had a consumer claim against the respondent. If the appellant had been successful, he would have been entitled to recover $141.00 from the respondent being the amount charged by the respondent to the appellant (and paid by the appellant). At first instance the Tribunal held that the appellant's claim was not a consumer claim and that therefore the Tribunal had no jurisdiction to determine the appellant's application. We affirmed that decision and dismissed the appeal. Respondent's Application 1. Having been successful in the appeal, the respondent submits that the Appeal Panel ought to order that the appellant pay its costs of the appeal on the following basis: 1. Had the appellant been successful the consequences for the respondent would have been significant. Although the appellant only sought to recover $141.00, had the appellant been successful, the respondent may have been obliged to return similar amounts to other rate payers within the respondent's local government area. The amount could have been in excess of $1,500,000.00. Accordingly, the respondent was in the position of being compelled to defend the proceedings and in doing so, to incur legal costs far in excess of the amount at issue; 2. The appellant could have simply declined to pay the amount charged by the respondent which would have had the consequence of forcing the respondent to commence recovery action in the Local Court against the appellant. In order to avoid the risk of an adverse costs order the appellant chose to commence proceedings in the Tribunal, being a forum in which there was a jurisdictional issue. The appellant did so deliberately in order to avoid the potential for an adverse costs order being made in the Local Court; and 3. The above matters constitute any other matter which the Tribunal considers relevant pursuant to s 60(3)(f) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). In addition, s 60(3)(e) is applicable upon the basis that the appellant's application was misconceived or lacking in substance; and 4. Accordingly, the respondent submits that the Appeal Panel should determine that there are special circumstances warranting an order for costs. Appellant's Submissions 1. As we do not agree with the respondent's submissions, it is not necessary to set out the submissions put forward by the appellant opposing an order for costs. Decision 1. The general position with respect to costs orders in the Tribunal is stated in s 60(1) of the NCAT Act. This provides that each party to proceedings in the Tribunal is to pay the party's own costs. 2. However, by s 60(2) the Tribunal may award costs in relation to a proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. Sections 60(1) and (2) do not always regulate the Tribunal's power with respect to costs. For example, r 38 of the Civil and Administrative Tribunal Rules 2014 (the Rules) provides otherwise with respect to certain categories of cases stipulated in that rule. That rule does not apply in this case. 3. The respondent appropriately relied upon the provisions of s 60(3) as the basis for its submissions and sought to persuade the Appeal Panel that there are special circumstances warranting the award of costs and that the Tribunal should exercise its discretion to make an award of costs against the appellant. In particular, reliance was placed on s 60(3)(e) and (f). 4. The fact that the proceedings were of potential significance to the respondent (in the sense of potentially having wider ramifications by reason of similar claims being brought by others who have been charged the same amounts) explains why the respondent elected to defend the appellant's claim. In so doing, the respondent has not only successfully defended the claim, but also derived the benefit of the Tribunal's decision which makes it less likely that other claims of the same nature would be brought against the respondent. 5. The respondent sought to argue that the question of the broader ramifications for the respondent could be considered as "any other matter that the Tribunal considers relevant" (s 60(3)(g)) and that therefore special circumstances exist warranting an award for costs. We do not accept this submission as it seems to suggest the appellant should pay the costs of the respondent for an outcome which has benefited the respondent in that any uncertainty as to whether the claim was a consumer claim has now been clarified by the Tribunal. Nor do we think that the fact that the appellant chose to commence an application in the Tribunal rather than defend proceedings in the Local Court brought by the respondent results in the conclusion that the appellant should pay the costs of the respondent. The appellant had a right to make an application to the Tribunal and attempt to persuade the Tribunal that it had jurisdiction to determine the appellant's claim. 6. The respondent seeks to argue that special circumstances exist by reason of the fact that the appellant's claim was misconceived or lacking in substance (s 60(3)(e)). In our view, the appellant's claim was not so obviously lacking in merit that it could be described as misconceived or lacking in substance. The Tribunal was required to consider the distinction between services offered by a supplier in the course of carrying on a business compared with services of a governmental or regulatory nature. Although the Tribunal both at first instance and on appeal found that the appellant's claim was not a consumer claim having regard to the definition of such a claim contained in the FT Act, it does not follow that the appellant's claim was misconceived or lacking in substance. It can be seen from our decision dismissing the appeal in which we considered a number of cases dealing with the distinction between services supplied in the course of carrying on a business and those of a governmental or regulatory nature that the appellant's claim required careful consideration. 7. Accordingly, in our view there are no special circumstances warranting an award for costs. Even if we found (which we do not) that there are special circumstances, we would not exercise our discretion contained in s 60(2) of the NCAT Act to make an award for costs. This is because having regard to the very small amount of money in issue between the parties and the significant statement of principle contained in s 60(1) (that each party is to pay their own costs) that it would be against the spirit of the NCAT Act to impose a costs order in this case and antithetical to the notion that the Tribunal should be accessible (see s 3(c) of the NCAT Act). 8. Finally, both parties were given an opportunity to make a submission as to whether the Appeal Panel may determine this application on the papers and thereby dispense with a hearing. Having read the parties' submissions and having considered the matter, we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their submissions and therefore in accordance with s 50 of the NCAT Act we propose to order that a hearing on the question of costs be dispensed with. Orders 1. The Appeal Panel makes the following orders: 1. A hearing on the question of costs is dispensed with; and 2. The respondent's application for a costs order is dismissed. ********** 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: 22 August 2019