Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 Hearing dates: On the papers. Date of orders: 04 September 2019 Decision date: 04 September 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member M Anderson, Senior Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013, a hearing of the application for costs in respect of appeal AP 19/01019 is dispensed with. 2. The application for costs is dismissed Catchwords: COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances – no reason to depart from usual position that each party pays their own costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Edward Lees Imports Pty Ltd v Commissioner of Fair Trading; Commissioner of Fair Trading v Edward Lees Imports Pty Ltd [2019] NSWCATAP 134 Latoudis v Casey [1990] HCA 59 (1990) 170 CLR 534 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Texts Cited: Nil Category: Costs Parties: Commissioner of Fair Trading (Appellant) Edward Lees Imports Pty Ltd (Respondent) Representation: Counsel: J Sheller with NF Case (Appellant) JR Young (Respondent) Solicitors: Legal, Government and Corporate Services, Department of Finance, Services and Innovation (Appellant) G&S Law Group (Respondent) File Number(s): AP 19/01019 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Occupational Division Citation: Not applicable Date of Decision: 27 July 2018 Before: D Dinnen, Senior Member File Number(s): 2016/00378798 reasons for decision Introduction 1. On 31 May 2019 the Appeal Panel dismissed three appeals arising from decisions made by the Tribunal in the Administrative and Equal Opportunity Division concerning cancellation of a motor dealers license of Edward Lees Imports Pty Ltd (ELI). The Appeal Panel published reasons for decision: Edward Lees Imports Pty Ltd v Commissioner of Fair Trading; Commissioner of Fair Trading v Edward Lees Imports Pty Ltd [2019] NSWSCATAP 134 (Reasons). 2. The third of the appeals related to cost orders made by the Tribunal at first instance against the Commissioner of Fair Trading (Costs Appeal). The Costs Appeal was dismissed: see Reason [309]-[424]. 3. At [430] of the Reasons, we indicated a preliminary view that no order for costs should be made in respect of any of the appeals. However, directions were made to permit the parties to make any application concerning costs of the appeals. 4. In respect of the Costs Appeal, ELI has made an application for costs against the Commissioner of Fair Trading (Commissioner). Application for costs and submissions 1. ELI says an order for costs should be made because: 1. The Costs Appeal had no tenable basis in fact or law: ELI submits that the claim that the Commissioner had been denied procedural fairness "or not to have been made", it being suggested the Commissioner's lawyers "must have known" of the directions concerning the filing of submissions made 12 September 2018 and sought to mischaracterise "its own administrative error as the basis for a claim of denial of procedural fairness". 2. The Costs Appeal unfairly disadvantaged ELI and "added significantly the cost and delay which the parties had to bear (sic)" 3. The Costs Appeal prolonged the time taken to complete the proceedings due to the fact of lodgement and the "protracted nature of submissions". 4. There was "no reliable basis in fact or law – "the submissions of the Commissioner were ab initio hopeless" and the Commissioner inappropriately sought "to blame the Tribunal for its own administrative error and forensic choices". 5. The proceedings were misconceived and lacking in substance for the reasons articulated above. 6. The Commissioner failed to comply with the duties under s 36(3) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) both in the proceedings at first instance and in the appeal proceedings. 7. In respect of "other matters", ELI submitted it was "successful in defending yet another Appeal by a party that engaged in conduct that breach the principles of a Model Litigant and that conduct continued as was noted in the decision of ELI v DFT (20. 12. 2017) and in the costs decision … appealed from herein". Consideration 1. The application for costs in respect of the Costs Appeal is regulated by s 60 of the NCAT Act. 2. Neither party suggested that a hearing of the application for costs was necessary. In our view, such a hearing would add to the expense of these proceedings and an order should be made pursuant to s 50(2)) of the NCAT Act dispensing with a hearing of this costs application. 3. Section 60(1) provides that each party is to pay their own costs. However, the Tribunal has a discretion to award costs if satisfied there are special circumstances. Special circumstances mean circumstances which are out of the ordinary, but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [p11]. Relevant factors to consider in respect of special circumstances are those set out in s 60(3) of the NCAT Act. 4. In our view the matters raised by ELI do not justify the making of an order for costs in respect of the Costs Appeal. Our reasons are as follows. 5. We do not accept the appeal had no tenable basis in fact or law. While certain grounds were rejected, one on the basis that it had no merit, other grounds such as the claimed ambiguity of the orders and the relevance of a party having obligations as a Model Litigant should not be so categorised. While these grounds might ultimately have been rejected, we are not satisfied the whole of the Costs Appeal could be described as untenable or misconceived. 6. We do not accept the Costs Appeal unfairly disadvantaged ELI or that it added significant cost or prolonged the time taken to complete the appeals. While filed after the hearing of the substantive appeals (which hearing occurred on 13 December 2018) the Costs Appeal was dealt with on the papers. All this occurred during the time the Appeal Panel was reserved on the substantive appeals. The fact both parties chose to make lengthy submissions on the Costs Appeal does not alter this position. Indeed, on one view, the fact both parties found it necessary to make lengthy submissions suggest that the Costs Appeal could not be described as without foundation. 7. Finally, we note ELI sought to raise issues concerning conduct of the Commissioner in the proceedings at first instance in support of its claim that a costs order should be made in respect of the Costs Appeal. 8. It is difficult to see the relevance of this submission. Costs are compensatory in nature: Latoudis v Casey [1990] HCA 59 (1990) 170 CLR 534. Any order made in the Costs Appeal is to compensate for the costs of the appeal, not to punish for alleged misconduct in respect of the proceedings at first instance. 9. In any event, we are not satisfied that the usual position that each party should pay their own costs, as prescribed in s 60(1) of the NCAT Act, should be departed from in the present case. 10. Accordingly, the application for costs is dismissed. Costs 1. The Appeal Panel makes the following orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013, a hearing of the application for costs in respect of appeal AP 19/01019 is dispensed with. 2. The application for costs 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: 04 September 2019