50 Emu Drive Pty Ltd v ACT Planning and Land Authority (Administrative Review) - [2022] ACAT 20

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

50 EMU DRIVE PTY LTD v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2022] ACAT 20

AT 48/2017

Catchwords: ADMINISTRATIVE REVIEW – failure to comply with directions – costs – principles to be applied to exercised of discretion – no presumption against costs – each case to be considered on own facts – model litigant guidelines not relevant – lump sum order

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48, 49, 56, 74
Law Officers Act 2011 s 12
Planning and Development Act 2007 ss 144, 146

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2020 s 8
Law Officer (Model Litigant) Guidelines 2010 (No 1)
Law Officers (General) Legal Services Directions 2012

Cases cited:50 Emu Drive Pty Ltd v ACT Planning and Land Authority [2018] ACAT 46
ACT Planning and Land Authority v 50 Emu Drive Pty Ltd [2019] ACTSC 276
Cachia v Hanes [1994] HCA 14
Howard v Psychology Board of Australia [2018] ACAT 127
Health Care Complaints Commissioner v Philipiah [2013] NSWCA 342
Russell v The Owners Corporation UP 585 Kingston [2020] ACAT 101
Thomas v Chief Planning Executive [2016] ACAT 45

Tribunal:Presidential Member MT Daniel

Date of Orders:  11 March 2022
Date of Reasons for Decision:      11 March 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 48/2017

BETWEEN:

50 EMU DRIVE PTY LTD

Applicant

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

TRIBUNAL:Presidential Member MT Daniel

DATE:11 March 2022

ORDER

The Tribunal orders that:

The respondent is to pay to the applicant costs in the amount of $5000, within 28 days of the making of this order.

………………………………..
Presidential Member MT Daniel

REASONS FOR DECISION

On 20 March 2020 I heard a costs application in this matter and reserved my decision. This was not because the amount sought ($5,637.50) was particularly large, but because the applicant raised questions of interpretation of the Tribunal’s costs power, and the circumstances in which the application was made were complicated. Regrettably, due to the disruption and demands of COVID-19, it is only now that I am providing this decision.
The issue of non-compliance with Tribunal directions, and the appropriate consequences, is often ventilated in the Tribunal. The Tribunal has limited statutory tools to deal with non-compliance[1], and in the main these tools are exercised only after a request by the non-defaulting party. So for example:
(a)Section 74 the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that where a party has, without reasonable excuse, failed to comply with a Tribunal order the Tribunal may make orders on the application against the non-compliant party, or order the non-compliant party to pay an amount to the territory.
(b)Section 56 of the ACAT Act permits the Tribunal to take any action in relation to an application that the Tribunal considers appropriate (such as dismissing an application for want of prosecution).
(c)Sections 48(2)(c) and 49 provide that where a party to an application contravenes an order of the Tribunal, the Tribunal may make an order for costs if satisfied it is in the interests of justice to do so.
[1] In some specific jurisdictions, such as matters under the Legal Profession Act or Health Practitioner Regulation (National) Law, the Tribunal has a full discretionary costs power. Interestingly, the availability of this broad costs power has not been demonstrated to lead to quicker timeframes, less expensive litigation, or greater compliance with directions. It does, however, seem to be associated with a greater degree of legal representation of parties.
Sections 48(2)(c) and 49 were the focus of the costs application in this matter.
To understand the genesis of the costs application it is necessary to set out the factual background and history of the litigation.

Background

The applicant is the owner of land that was subject to a development application for the development of a KFC restaurant in Belconnen (DA).
In August 2017, the respondent (ACTPLA) rejected the DA.
The applicant applied to the Tribunal for review of that decision.
After a comprehensive hearing the Original Tribunal on 14 December 2017 set aside ACTPLA’s decision and approved the DA, subject to conditions.[2]
[2] 50 Emu Drive Pty Ltd v ACT Planning and Land Authority [2018] ACAT 46
That decision was then the subject of an appeal to the Supreme Court. The issue on appeal was whether the building in the DA had a gross floor area (GFA) greater than what is permitted under the Territory Plan. The Supreme Court found that the GFA under the DA was greater than the maximum size permitted. In November 2019, the Supreme Court made orders to set aside the Tribunal’s decision and remit the DA to the Tribunal to be heard and decided again in accordance with the law and with such further evidence as may be necessary (the remittal orders).[3]
[3] ACT Planning and Land Authority v 50 Emu Drive Pty Ltd [2019] ACTSC 276
The matter accordingly came before me on 9 December 2019 for a directions hearing. At that directions hearing the applicant’s solicitor advised that the applicant intended to prepare further amended plans[4] with a reduced GFA for submission to the Tribunal. The applicant anticipated that the only change to the DA would be to reduce the floorspace to bring the plans in line with the decision of the Supreme Court, and that consequently they hoped such plans should meet with no opposition from ACTPLA.
[4] There had been amended plans provided during the earlier proceedings, so this would be the second set of amended plans
The parties agreed that there was a procedural question as to whether there should be public notification of the further amended plans, and that that question could not be considered until after the further amended plans had been filed with the Tribunal and a copy given to ACTPLA.
I made directions for the further amended plans to be filed by 20 December 2019, and another directions hearing was scheduled to be conducted on 31 January 2020.
I had hoped to bring the matter back more quickly, but the time of year was awkward given the public service shutdown and most of the legal profession taking Christmas leave. In addition, ACTPLA’s solicitor adverted to a potential need for ACTPLA to consult with other entities when considering the further amended plans. ACTPLA’s solicitor indicated they would seek instructions not only on the issue of public notification, but also on whether ACTPLA could agree to a consent decision in terms of the further amended plans.[5] For these reasons, the date of 31 January 2020 was chosen for the next directions hearing.
[5] Transcript of proceedings 9 December page 12 (this is an unofficial transcript provided by the applicant)
The applicant in December 2019 also took steps to institute an appeal from the remittal orders to the Court of Appeal.
The further amended plans were filed and served on 20 December 2019 as required. When serving the further amended plans upon ACTPLA the applicant also provided a copy of the notice of appeal, and a covering letter which stated:
Our client instructs that if your client confirms that it will support the granting of development approval based on the Plans enclosed, it will not press the Appeal and will instead discontinue the Appeal with no order as to costs.[6]
[6] Letter of 20 December 2019, Exhibit A to Affidavit of Mr Chand
On 13 January 2020 the applicant received a letter from Access Canberra requiring payment of an outstanding sum of $145,532.73 for not having developed the site in the time frame required.[7]
[7] Schedule of documents dated 17 February 2020
On 23 January 2020 ACTPLA’s solicitors wrote to the applicant’s solicitors indicting that ACTPLA’s position was that the further amended plans should be publicly notified, and that pedestrian-vehicle interface safety remained an issue upon which ACTPLA required further expert advice before it could complete its assessment of compliance with the Territory Plan.[8]
[8] Letter of 23 January 2020 ACTGS to Trinity Law, Exhibit B to Affidavit of Mr Chand
The matter came next before me for the directions hearing on 31 January 2020. Both applicant and respondent were represented by senior counsel. It was a lengthy directions hearing, during which it became apparent that although counsel had identified multiple potential procedural issues there had been little forward progress in the matter. It also became apparent that there was a degree of confusion as to the position of each party. The grounds covered included:
(a)Whether the further amended plans should be characterised as:
(i)      requiring a fresh development application; or
(ii) a minor amendment to the existing development application as contemplated by section 144 of the Planning and Development Act 2007 (PD Act); or
(iii)   plans to be imposed as a condition of approval of the development application.
(b)Whether the further amended plans required public notification, either:
(i) because they are a section 144 minor amendment and section 146 of the PD Act applies; or
(ii)     because they are to be imposed as a condition of approval and given the protracted history of this case, it would be inappropriate for the Tribunal to make a decision by consent when persons now potentially affected by that decision had not been included in notification of the original decision, or of the review proceedings in the Tribunal.
(c)Whether, if the Tribunal decided public notification of the further amended plans was not required, ACTPLA would agree to consent orders approving the DA in accordance with the further amended plans.
(d)What were the ramifications of the appeal to the Court of Appeal for the Tribunal’s exercise of jurisdiction? Unaware of the applicant’s stated intention[9] to withdraw the appeal if consent orders were entered into, I raised with the parties my concern about the Tribunal requiring further public notification or substituting a new decision, with the present possibility that the Court of Appeal might set aside the order for remittal, which was now the source of the Tribunal’s jurisdiction.
[9] In its letter of 20 December 2019
Counsel for ACTPLA stated that ACTPLA was satisfied that the further amended plans were substantially the same as the DA before the Tribunal. However, counsel submitted that for a variety of reasons public notification of the further amended plans should occur.[10] At one point, counsel said that without seeing any potential objections it was not possible to state whether ACTPLA would consent to a development in terms of the further amended plans or not[11], but at the conclusion of the directions hearing counsel for ACTPLA agreed that ACTPLA’s difficulties were only procedural and that if the Tribunal determined no public notification was necessary, the matter could proceed to a consent decision.[12]
[10] Transcript of proceedings 31 January 2020 page 14, line 25
[11] Transcript of proceedings 31 January 2020 page 19, line 23
[12] Transcript of proceedings 31 January 2020 page 37, line 42 ff – note at transcript page 35 line 45 and page 36 line 30 what appears to be a reference to the pedestrian-vehicle safety issue being resolved
Counsel for the applicant submitted that the further amended plans were essentially the same as those approved by the Original Tribunal, except for having a smaller GFA. Counsel submitted that in their view the further amended plans did not require ‘amendment’ of the DA or public notification but conceded that the question of public notification could turn on contested issues of fact and required determination as a preliminary point.
The parties acknowledged the awkwardness of the two sets of proceedings and agreed that under the orders of the Supreme Court it was the duty of the Tribunal to ‘get on with’ exercising its jurisdiction in the matter. Counsel for the applicant submitted that the applicant was entitled to protect its position by lodging an appeal, and foreshadowed that at a directions hearing in the Court of Appeal the next week a request for an expedited hearing of the appeal could be made.
At the conclusion of the discussion, I listed the matter for a hearing on 27 February 2020 on the question of the need for public notification. This included the antecedent question of correct characterisation of the further amended plans. Directions were made for ACTPLA to file evidence and submissions on the preliminary point by Friday 14 February, and the applicant to file evidence and submissions in reply by Friday 21 February.
On Monday 10 February 2020, ACTPLA filed an application in the Supreme Court for a stay of the remittal orders. The return date for ACTPLA’s stay application was 19 February 2020.
ACTPLA’s solicitor forwarded a copy of that application to the applicant’s solicitor by email on 11 February 2020, noting it had been returned to them that day, and asked for the applicant’s views on seeking a variation to the ACAT timetable (and implicitly a delay of the 27 February hearing).[13]
[13] Affidavit of Mr Chand, Annexure D
The applicant’s solicitors did not respond.
On Thursday, 13 February 2020, ACTPLA’s solicitors wrote to the applicant’s solicitors, stating:
ACTPLA considers that it is appropriate for ACAT to extend time for the filing of submissions and evidence on the preliminary question of public notification. This is because if the Court of Appeal grants a stay of order 4 of Her Honour Associate Justice McWilliam’s orders made on 19 November 2019, the proceeding in the ACAT will be stayed until your client’s appeal is determined. Depending on the outcome of the appeal, it is possible that any time and effort spent on the preliminary question of public notification by the parties and the Tribunal will be wasted and of no consequence.[14]
[14] Document 5, Schedule of documents dated 17 February 2020
Later that day the applicant’s solicitors emailed the Tribunal asking that the Tribunal urgently relist the matter because ACTPLA’s solicitor had advised that it would not be complying with the Tribunal’s direction to file evidence and submissions on the public notification issue by 14 February 2020. By separate email later that day, ACTPLA’s solicitor advised the Tribunal that ACTPLA supported the urgent relisting of the matter so that:
the Tribunal can consider ACTPLA’s request for a slight variation in the timetable for filing of submissions and evidence and hearing of the preliminary question of public notification.[15]
[15] Affidavit of Mr Chand, Annexure F
Also on 13 February 2020 the applicant’s solicitors wrote to ACTPLA’s solicitors, confirming that the appeal would be withdrawn if consent to a DA in terms of the further amended plans was forthcoming, and asking what the problem with the further amended plans was.[16]
[16] Document 6, Schedule of documents dated 17 February 2020
On 14 February 2020 ACTPLA’s solicitors responded to this correspondence, asserting that until the question of public notification was determined it was not in a position to finalise its position on the further amended plans, and that it was not appropriate for the Tribunal review process to continue while the Supreme Court challenge remained on foot.[17]
[17] Document 7, Schedule of documents dated 17 February 2020
Around 3:45pm Friday, 14 February 2020, the Tribunal advised the parties representatives by email that it had listed the matter on Monday, 17 February 2020.
ACTPLA missed its filing deadline of Friday 14 February.
The matter came before me on Monday 17 February 2020. ACTPLA’s solicitor sought to vacate the hearing on 27 February and vary the timetable for filing of documents. The reason given for the application was that ACTPLA had on 10 February filed with the Court of Appeal an application for a stay of the order remitting the matter to the Tribunal, and that stay application was listed to be heard on Wednesday 19 February. If the stay was successful, any time and effort expended upon preparing for a hearing of the notification question would be prematurely expended, and potentially ultimately unnecessary. The application to move the hearing and vary the timetable was thus predicated upon the likelihood of the Court of Appeal granting the stay.
During the hearing on 17 February 2020 both representatives raised their dissatisfaction with the communications of the other party.
ACTPLA’s solicitor said that given the applicant’s counsel’s comments on 31 January 2020 it was not clear that the applicant would withdraw the appeal if consent orders were entered into in the Tribunal, thus making the propriety of maintaining the two proceedings a live issue. It was this that had necessitated the application for a stay. In response, counsel for the applicant pointed to the correspondence sent after that date which confirmed that the appeal would be withdrawn if consent orders were entered into.[18]
[18] Letter of 13 February 2020, Document 6, Schedule of documents dated 17 February 2020
Counsel for the applicant submitted that the applicant had written to ACTPLA’s solicitor several times since the directions hearing on 31 January, requesting confirmation that ACTPLA would consent to the further amended plans if the Tribunal decided there was no need for public notification, and that “We get letters which do anything but answer that question.”. I then asked the representative for ACTPLA what the answer to that question was and was told:
Well, my instructions are that a full consideration of the plans – the amended plans, has not been undertaken. ACTPLA will then – if the Tribunal were to find that notification cannot occur – or should not occur, ACTPLA will then go back to the amended plans, have a proper consideration of it, and ….
It seemed that despite ACTPLA’s solicitor stating on 9 December 2019 that a lengthy adjournment was required so that ACTPLA could fully consider the further amended plans, and engage with any relevant entities, no such work had been done. Indeed ACTPLA did not propose to undertake such work until after the public notification issue had been determined. This position made a nonsense of the discussion at the directions hearing on 31 January 2020 about the matter proceeding to an immediate consent decision, if public notification were not required.
I declined to grant the application to vary the timetable and move the hearing date and instead confirmed the hearing date for the public notification issue on 27 February 2020.
I acknowledged that the interaction of the two sets of proceedings was all very complicated, but that the Tribunal had an imperative to exercise its jurisdiction and it was not for the Tribunal to decide not to do so, in a situation where the Court did not perceive any urgency about listing the stay application, let alone granting it. I tried to impress upon ACTPLA’s solicitors that ACTPLA needed to be doing its work of looking at the plans and providing them with instructions, while they were undertaking the legal work. I acknowledged ACTPLA was now late in filing, and that there might be financial consequences of that for the parties which would lead to a costs application being made and debated. I urged the parties to utilise their senior counsel to sort out their communication, sit down and try to reach a resolution of the matter.
After the relisting on 17 February 2020, ACTPLA instructed its solicitors to prepare and file its documents as required by the directions.[19]
[19] Affidavit of Mr Chand, paragraph 23
The Supreme Court did not grant a stay application on 19 February 2020.
ACTPLA ultimately served its evidence and submissions at 7:27pm that day.
The applicant filed its materials on 25 February 2020.
The hearing on the issue of public notification on 27 February 2020 went ahead, and the decision was reserved. On 18 March the Tribunal issued orders that public notification was not necessary. On 3 April 2020, the parties applied to the Tribunal for consent orders approving the development, and those consent orders were made by the Tribunal on 8 April 2020. I understand that the appeal to the Court of Appeal was then withdrawn.

Parallel to these developments, the applicant on 25 February 2020 filed the current costs application, which was listed for hearing before me on 20 March 2020.

The costs application

The costs application is made pursuant to section 48(2)(c) of the ACAT Act. The applicant asserts that ACTPLA did not file its evidence and submissions by 14 January 2020 as directed, and that this caused the applicant to incur costs and expenses. The applicant sought reimbursement of costs incurred in having to prepare for and appear at the re-listing of the matter before the Tribunal on Monday 17 February 2020.²²
The application was supported by a witness statement of Mr Falcetta dated 25 February 2020, explaining:
(a)he had become aware of the relisting of the matter only on Sunday 16 February 2020;
(b)he had retained senior counsel because he anticipated the matter to be vigorously contested and due to counsel’s prior involvement on 31 January 2020;
(c)due to the short timing Epiq could not provide transcript and he was required to make other arrangements for transcription;
(d)he spent around 7.5 hours dealing with the relisting including the attendance on 17 February, his hourly rate was $495 excluding GST;
(e)senior counsel charged $1,925 excluding GST for the work involved in the relisting;
(f)total costs incurred by the applicant for the relisting were estimated at $5,637.50 (including counsel’s fee of amount excluding GST); and
(g)his understanding is that the applicant is registered for GST.
The witness statement attached copies of email correspondence with the Tribunal registry about the relisting.
The applicant also relied upon the following documents:
(a)Schedule of Documents dated 17 February 2020.
(b)Transcript of the proceedings on 9 December 2019 and 17 February 2020.
(c)Further Schedule of Documents dated 21 February 2020.
(d)Written submissions on the costs application dated 19 March 2020.
For its part, ACTPLA relied upon an affidavit of Mr Chand dated 18 March 2020, explaining:
(a)the background to the order for remittal;
(b)the parties’ correspondence about the appeal to the Supreme Court;
(c)ACTPLA’s understanding from the 31 January 2020 directions hearing that the applicant wished to pursue both the Court of Appeal and ACAT proceedings simultaneously;
(d)the lodging of the stay application, and attempts to obtain an urgent listing of that application;
(e)the communication with the applicant’s solicitors about the stay application and his intention to approach the ACAT for a variation of the directions; and
(f)the efforts undertaken after 17 February to file submissions and evidence, in time to allow the hearing on 27 February 2020 as scheduled.
The witness statement also attached some of the email and letter correspondence between the parties, and the Tribunal, and the transcript of the directions hearing on 31 January 2020.
Section 48 of the ACAT Act provides:
48     Costs of proceedings
(1)     The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the Tribunal otherwise orders.
(2)     However—
…
(c)subject to section 49, if a party to the application contravenes an order of the Tribunal—the Tribunal may order the party to pay the costs or part of the costs of the application to the other party; or
…
The applicant submitted that there had been a failure by ACTPLA to comply with the order requiring the filing of evidence and submissions by 14 February 2020, and that even after the Tribunal refused to vary the directions on 17 February 2020, ACTPLA did not file the necessary documents until 7:27pm on Wednesday 19 February 2020. This was said to be a clear contravention of the Tribunal’s orders, thus enlivening the power under section 48(2)(c) which was to be exercised only in accordance with section 49.
Counsel for ACTPLA did not contest that the requirements of section 48(2)(c) were met, and the discretion in relation to costs was available to be exercised.
Section 49 provides:
49     Costs for contravening an order
(1)     The Tribunal may award costs against a party for contravening an order under section 48 (2) (c) only if satisfied that it is in the interests of justice to do so.
(2)     In deciding whether it is in the interests of justice to award costs, the Tribunal must consider the following:
(a)whether the contravention was deliberate or could easily have been avoided;
(b)whether (and if so, the extent to which) the contravention has affected the Tribunal’s ability to hear the application promptly;
(c)the importance to the community of people being able to afford to bring applications to the Tribunal.
(3)     The Tribunal may consider any other relevant matter.
(4) Costs are payable in accordance with the scale of costs in the rules under the Court Procedures Act 2004 applying in relation to the Supreme Court.
On the three factors set out in subsection 49(2):
(a)both parties submitted that the contravention had been deliberate, albeit occurring in unusual circumstances, and counsel for ACTPLA submitted that it had not been contumacious;
(b)the contravention did not affect the Tribunal’s ability to hear the application promptly as the hearing of the preliminary point proceeded as scheduled;
(c)Counsel conceded that neither party in the current matter was impecunious. Under this heading counsel noted the two competing matters of policy: the system should encourage parties to comply with directions, as failure to do so increases costs of the administration of justice. On the other hand, too ready use of costs powers has a ‘chilling effect’: it discourages persons from accessing the Tribunal due to a fear of costs orders being made against them.[20]
[20] See discussion in Russell v The Owners Corporation UP585 Kingston [2020] ACAT 101, paragraph 81
On the other factors that might be considered relevant under subsection 49(3):
(a)both counsel referred to the important principle that an award of costs in compensatory in nature;[21]
(b)counsel for the applicant submitted that the contravention of the direction could have been avoided, and that it was incumbent upon ACTPLA to either comply with the directions or obtain a stay – because it did not have a stay at the relevant time, it should have complied with the Tribunal’s order. Rather it continued to hold off on compliance with the Tribunal’s directions until after it had been before the Supreme Court;
(c)counsel for ACTPLA submitted that while the Tribunal should consider the precept that directions should not be ignored, the Tribunal would also be aware that it has other procedural powers with which to deal with non-compliance with directions;
(d)counsel for ACTPLA reminded the Tribunal that costs cannot be used as a punitive measure;[22]
(e)counsel for ACTPLA pointed out that the applicant was not blameless in the relisting, in the sense that the applicant had failed to respond to ACTPLA’s correspondence about seeking a variation to the timetable, but had instead contacted the ACAT directly itself;
(f)counsel for the applicant referred to the obligation on ACTPLA under the Model Litigant Guidelines and submitted that the contravention of the order was a breach of those guidelines. Counsel for ACTPLA drew the Tribunal’s attention to section 12(3) of the Law Officers Act 2011 which provides that the issue of non-compliance with a legal services direction cannot be raised in any proceeding except by the Territory;
(g)ACTPLA referred to the decision in Thomas v Chief Planning Executive[23] in which costs were not awarded, despite multiple failures to comply with directions of the Tribunal. The submission seeming to be that this was a less egregious case of non-compliance than in that case, and hence costs should not here be awarded.
[21] Cachia v Hanes [1994] HCA 14
[22] Health Care Complaints Commissioner v Philipiah [2013] NSWCA 342
[23] Thomas v Chief Planning Executive [2016] ACAT 45
Overall, the applicant submitted that a correct exercise of discretion under section 48(2)(c), in the interests of justice, would be to make an order for the applicant’s costs. On the phrasing of such an order, it was submitted that a lump sum amount of $5,637.50 should be ordered. Counsel for the applicant submitted that the expense of Counsel on the 17 February relisting was appropriately incurred.
ACTPLA submitted that the interests of justice required an exercise of discretion under section 48(2)(c) would be to refuse the applicant’s costs application. However, if a costs order were to be made, ACTPLA queried whether counsel had really been required on the relisting and submitted that an order for an amount as agreed or as assessed by the Registrar would be suitable.
Both counsel agreed that orders for a formal assessment (including creation of a formal bill of costs) would be disproportionate to the amount of costs sought and thus inappropriate in this matter.

Consideration

It is worth noting at the outset that the applicant sought reimbursement only of those costs occasioned by the failure to comply with the order. A similar limitation on the exercise of the costs power was adopted by counsel for ACTPLA. Counsel for ACTPLA adverted to the compensatory nature of costs as one basis for this limitation.
On its face the power provided by section 48(2)(c) is not limited to the costs occasioned by the contravention of the Tribunal’s order. The wording of this section can be distinguished from the costs power in relation to delay and obstruction provided by section 48(2)(b) which is expressly limited to the reasonable costs of the other party arising from the delay or obstruction.
It seems to me that if the power to order costs provided by section 48(2)(c) is limited to those costs incurred as a consequence of the breach of the order, then that limitation is drawn from the requirements of section 49 as applied in the circumstances of the particular case. It is not a limitation to be read into the words of section 48(2)(c).
Turning to the exercise of discretion as required by section 49, the submissions of counsel were imbued with the sense that even where a power to order costs is available the Tribunal should be reluctant to make an order for costs – whether this was because it is a Tribunal in which legal representation is not the norm, or perhaps because of the opening words in section 48(1) that “parties bear their own costs”.
I do not consider the exercise of a costs discretion by the Tribunal should be approached with reluctance, or that there is some threshold or presumption to be ‘got over’ in order to exercise the discretion. In Howard v Psychology Board of Australia[24] I stated in relation to exercise of the costs power conferred under the Health Practitioners’ (National) Law:
17. It might be argued that the principle that costs follow the event should not be applied, because it is contrary to the first part of section 48(1) of the ACAT Act.[25] However, I do not think it would be correct to interpret section 48(1) as imposing on each costs power some sort of threshold to be ‘gotten over’ so that costs can be awarded. This is not what section 48(1) says. While the underpinning policy seems to be that in the Tribunal parties will bear their own costs, this is achieved by the legislation providing only limited circumstances in which the Tribunal has a power to award costs. There is nothing in section 48, or the ACAT Act more generally, that suggests that when the Tribunal is given a discretionary costs power it should be reluctant to use it.
[24] Howard v Psychology Board of Australia [2018] ACAT 127
[25] This argument is frequently made in the Tribunal whenever costs are sought
If the power to order costs should not be exercised reluctantly, neither should it be exercised eagerly. Section 49 requires that a consideration of the interests of justice, both in the individual case and in contemplation of the broader effects of the decision, be dispassionately undertaken.
In considering the interests of justice, neither party relied on the established principle that costs should follow the event. As I noted in Howard[26] it is questionable whether such a principle is aptly deployed in a case which seeks administrative review rather than civil litigation. In any event, I do not consider that principle of any assistance in the peculiar circumstances of this costs application.
[26] Howard v Psychology Board of Australia [2018] ACAT 127 paragraph 21
I have disregarded any issue of ACTPLA’s behaviour as a model litigant. A lack of congruence between submissions to the Tribunal and subsequent behaviour is concerning in any party, but even more so when that party is required to conduct itself as a model litigant, and its representatives have an obligation to assist it to do so.[27] However, the issue of a party’s non-compliance with the model litigant guidelines is a matter for the Attorney-General, and in the main cannot be raised or relied upon in legal proceedings. The facts giving rise to that concern are not of any particular relevance, given the basis on which the costs application is brought.
[27] See Law Officers Act 2011; Law Officer (Model Litigant) Guidelines 2010 (No 1); Law Officers (General) Legal Services Directions 2012
In this case, the relisting on 17 February to seek adjournment of the hearing date seemed appropriate when the stay application was lodged on 10 February. However, a relisting to adjourn the hearing date was not an appropriate approach by the time the documents were due on 14 February. This was because the applicant had finally (on 13 February) corrected the misapprehension about its intention to maintain both sets of proceedings. From that point the quickest, most efficient and least expensive course[28] was for ACTPLA to comply with the directions. ACTPLA’s solicitors could have written to both applicant and Tribunal, advising that the misapprehension had been corrected and that it would use its best endeavours to comply with the directions and allow the hearing on 27 February 2020 to continue as scheduled. However, ACTPLA continued with its course (over Friday 14 and part of Monday 17 February) of not complying with the directions, maintained the need for the listing (and adjournment of the future hearing on the preliminary point) and did not instruct its solicitors to comply with the directions until after the relisting on 17 February 2020.
[28] Principles the Tribunal must comply with, and which each party’s representative is obliged by rule 8 of the ACT Civil and Administrative Tribunal Procedure Rules 2020 to cooperate with the Tribunal to give effect to.
The failure to comply with the Tribunal’s directions was deliberate and continuing. The continuation after 13 February 2020 appears to sail very close to meeting the definition of contumacious – that is ‘wilfully disobedient’. It put the hearing date at risk and necessitated a mention of the matter at which the adjournment request, now only necessary because of a stated intention to continue non-compliance, could be made. In order to meet that application, the applicant was put to expense.
Considering all of the factors adverted to, I am satisfied it is in the interests of justice that the applicant not bear the costs of the listing on 17 February 2020.
Making an order for costs is not to punish ACTPLA for its conduct, but to ensure the applicant does not suffer loss as a consequence.
To the extent that the making of the costs order has some incidental salutary effect: it is in the interests of justice that ACTPLA, and other litigants, might learn from this decision that directions are to be complied with, and that if failure to comply with directions requires the other party to incur costs, the non-compliant party may end up bearing them.
I hope that any ‘chilling effect’ of this decision upon litigants will be upon their contemplation of disobedience of Tribunal orders, rather than their instigation of Tribunal proceedings.
It may be that this decision seems inconsistent with one previous decision of the Tribunal cited by counsel. No doubt over time a jurisprudence in relation to costs applications in the Tribunal will develop and broad patterns in the exercise of the costs discretion will emerge. However, the Tribunal must in every case make its decision about costs by reference to the specific circumstances of the application, rather than pursuing consistency with past decisions for its own sake.
It seems to me in the interests of both parties, and justice, that a lump sum costs order be made in this case so as to save the parties the further expense and delay of future negotiations and appearances in relation to quantum. The relevant information is before me, and I am aware of the history of the litigation. It would be inefficient and expensive to require the task of assessment to be undertaken by the Registrar on a future date.
I am satisfied that the amount of costs incurred by the applicant for the relisting was reasonable, and specifically that it was reasonable to brief counsel to attend the relisting. From the Tribunal’s perspective it was not necessary for the applicant to prepare some of the formal documentation that was filed on 17 February 2020, however much of the work involved in preparing that documentation would have been undertaken to brief counsel for that appearance, in any event. I have made a small reduction in the amount ordered on that basis.
I note too that costs have been incurred in making this costs application, which are not sought in the application.
Consequently, I will make an order that the respondent is to pay to the applicant costs in the amount of $5000, within 28 days of the making of this order.
………………………………..
Presidential Member MT Daniel

Date(s) of hearing	20 March 2020
Counsel for the Applicant:	Mr P Walker SC, Mr J Larkings
Solicitors for the Applicant:	Trinity Law
Counsel for the Respondent:	Mr C Erskine SC
Solicitors for the Respondent:	ACT Government Solicitor