Bhugon v Workcover Authority of NSW

[2004] NSWADT 106

CITATION:	Bhugon v Workcover Authority of NSW [2004] NSWADT 106
DIVISION:	General Division
PARTIES:	APPLICANT Desire Bhugon RESPONDENT Workcover Authority of NSW
FILE NUMBER:	033197
HEARING DATES:	30/01/2004
SUBMISSIONS CLOSED:	01/30/2004
DATE OF DECISION:	06/03/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001
CASES CITED:	Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Brooks Maher v Cheung [2001 NSWADT 18 at [11]; Charteris v Leichhardt Municipal Council (No 2) [2001] NSWADTAP 39 Ciesielski -v- Broadway Shopping Centre Sydney Pty Ltd [2000] NSWADT 25 Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6 Graham v Director General, Department of Community Services [2001] NSWADTAP 4 Oshlack v Richmond River Council (1998) 193 CLR 72 Protogeros -v- Fouzas [2004] NSWADT 62 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 Randi Wiks Pty Limited v. Pokana Pty Limited [2003] NSW ADTAP 27 Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27
REPRESENTATION:	APPLICANT D Gasic, barrister RESPONDENT W Muddle, barrister
ORDERS:	Each of the applications for costs is refused. Each is to pay their own costs.

Background

1 Mr Desire Bhugon applied to the Tribunal for a review of the decision by the WorkCover Authority of NSW (“WorkCover”) under the Occupational Health and Safety Act 2000. WorkCover’s decision, dated 20 June 2003, was to suspend Mr Bhugon's accreditation as an assessor pursuant to clause 287 of the Occupational Health & Safety Regulation 2001 (“the Regulation”). The Notice of the decision stated:

“As a result of recent investigations into the conduct of assessments carried out by you on or around 8th August 2002, your accreditation as an assessor will be suspended. You are advised that the suspension of your accreditation is effective for a period of 12 months, from 24/06/03 until 23/06/04. Should you conduct any assessments during this time, your accreditation will be cancelled.

Clause 287 of the Occupational Health & Safety Regulation 2001 enables WorkCover to suspend or cancel an assessor's accreditation if it is satisfied that the assessor has carried out an assessment of competency otherwise than in accordance with the WorkCover Guidelines for Certificate Assessors. WorkCover has established that on a number of occasions you have carried out assessments of competency in breach of these Guidelines.

In relation to assessments conducted in Fairfield on or around the 8th August 2002 it was found that:

1. A pre-completed photocopy of the performance checklist was used. [Refer: WorkCover Guidelines for Certificate Assessors March 1998: GG/20: Conducting Assessments];

2. The performance assessment was conducted without the appropriate load as required in the Forklift Truck Assessment Instrument [Refer: WorkCover Guidelines for Certificate Assessors March 1998: GG/20: Conducting Assessments];

3. The applicants completed the knowledge examinations in the absence of the assessor, in which case the assessor did not randomly select and apply the appropriate number of questions [Refer: WorkCover Guidelines for Certificate Assessors March 1998: GG/20: Conducting Assessments];

4. The knowledge examinations were not corrected by the assessor. [Refer: WorkCover Guidelines for Certificate Assessors March 1998: GG/20: Conducting Assessments];

5. The knowledge examinations were conducted orally without indicating this was the case [Refer: WorkCover Guidelines for Certificate Assessors March 1998: GG/20: Conducting Assessments]”

2 WorkCover undertook a review of the decision and on 31 July 2003 it advised Mr Bhugon that it affirmed its original decision. By letter dated 13 August 2003, WorkCover further advised Mr Bhugon that the suspension period was to be for a period of 12 months from 31 July 2003 to 31 July 2004. WorkCover provided reasons for this decision. The reasons are dated 20 August 2003 and Mr Bhugon was provided with a copy of the reasons.

3 Mr Bhugon’s application sought a review of the WorkCover decision based on WorkCover’s failure to comply with Clause 287(2) of the Regulation. The matter came before the Tribunal’s President for a Directions Hearing on 19 October 2003. The Tribunal’s President made directions for the further conduct of Mr Bhugon’s application for a stay of the WorkCover decision and this application was refused after a hearing on 3 September 2003. The substantive matter came before Judicial Member Higgins for a Directions Hearing on 3 October 2003 at which time she made directions for the further conduct of the matter. The matter was listed for hearing on 6 and 7 November 2003.

4 On 3 November 2003 Mr Bhugon’s solicitors advised the Tribunal that they had received instructions to withdraw the application. The matter was listed before me for a dismissal hearing on 11 November 2003 at which time Counsel for Mr Bhugon formally withdrew the application. At that time, Mr Bhugon made an application for costs. I set a further timetable for the filing of submissions on the issue and the matter was listed for hearing on 30 January 2004. The matter was heard on that day and the decision reserved.

5 Mr Bhugon seeks an order that WorkCover pay his costs in relation to the application. In turn, WorkCover seeks an order that Mr Bhugon pays its costs or, in the alternative, that each party pays its own costs.

Legislative provisions

6 Section 63 of the Administrative Decisions Tribunal Act 1997 (“the Act") sets out the Tribunal’s approach to review:

“63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

7 Section 88 of the Act sets out the Tribunal's powers in relation to costs. Section 88 provides:

“88 Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

(2) 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 Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.”

8 Section 62 of the Occupational Health and Safety Act 2000 provides WorkCover inspectors with certain powers in relation to the obtaining of information, documents and evidence:

“62 Power of inspectors to obtain information, documents and evidence

(1) An inspector may, by notice in writing served on a person, require the person to do any one or more of the following things if the inspector has reasonable grounds to believe that the person is capable of giving information, producing documents or giving evidence in relation to a possible contravention of this Act or the regulations:

(a) to give an inspector, in writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any such information of which the person has knowledge,

(b) to produce to an inspector, in accordance with the notice, any such documents,

(c) to appear before an inspector at a time and place specified in the notice and give either orally or in writing any such evidence and produce any such documents.

(2) A notice under this section must contain a warning that a failure to comply with the notice is an offence.

(3) An inspector may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document.

(4) An inspector may take possession and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an inspector to be a true copy.

(5) A certified copy provided under subsection (4) is receivable in all courts as if it were the original.

(6) Until a certified copy of a document is provided under subsection (4), the inspector who has possession of the document must, at such times and places as the inspector thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect the document and make copies of, or take extracts from, the document.”

9 Clause 287 of the Regulation provides:

“287 Suspension and cancellation of accreditation

(1) WorkCover may suspend or cancel the accreditation of a person who is accredited as an assessor if it is satisfied that:

(a) the assessor is no longer competent to carry out the kinds of assessments for which the assessor is accredited, or

(b) the assessor has been convicted of an offence against the Act or the associated occupational health and safety legislation, or any regulation under the Act or that legislation, or of an offence against a corresponding law or any regulation under a corresponding law, or

(c) the assessor was accredited on the basis of false or misleading information or a failure to disclose or provide required information, or

(d) the assessor has carried out an assessment of competency:

(i) otherwise than in accordance with the guidelines issued by WorkCover in relation to the conduct of assessments, or

(ii) in the case of an assessor who has carried out an assessment under a corresponding law, otherwise than in accordance with that law or any guidelines in force under that law, or

(e) the person has had his or her accreditation to conduct OHS induction training suspended or cancelled under clause 217A, or has had his or her approval as a Premium Discount Advisor suspended or cancelled under the regulations under the Workers Compensation Act 1987, for reasons of a kind referred to in paragraph (b), (c) or (d).

(2) Before suspending or cancelling an assessor’s accreditation, WorkCover:

(a) must cause written notice of the proposed suspension or cancellation to be given to the assessor, and

(b) must give the assessor a reasonable opportunity to make representations to WorkCover in relation to the proposed suspension or cancellation, and

(c) must have regard to any representations so made.

(3) If, after having regard to any representations made by the assessor, WorkCover decides to proceed with the proposed suspension or cancellation, WorkCover must give to the assessor a written notice:

(a) stating that the accreditation is suspended or cancelled, and

(b) in the case of a suspension, specifying the period for which the accreditation is suspended, and

(c) giving reasons for the suspension or cancellation.

(4) The suspension or cancellation takes effect on the date on which notice of the suspension or cancellation is given to the assessor or such later date as may be specified in the notice.”

10 Mr Bhugon’s case is based on what he says is WorkCover's conduct in the proceedings that has placed him at an unfair disadvantage. It is argued that WorkCover, by its misconduct, has disadvantaged Mr Bhugon by failing to concede, prior to and during the proceedings, that it was in breach of its obligations under Clause 287(2) of the Regulation.

11 Mr Bhugon argues that under Clause 287(2) of the Regulation it was a mandatory requirement, before suspending or cancelling his accreditation, that WorkCover cause written notice of the proposed suspension or cancellation to be given to Mr Bhugon, and that WorkCover must give Mr Bhugon a reasonable opportunity to make representations in relation to the proposed suspension or cancellation, and WorkCover must have regard to any representations so made. Mr Bhugon argues that WorkCover failed to comply with this mandatory requirement and by its failure to concede that breach caused these proceedings to be commenced and prolonging the proceedings.

12 Mr Gasic, Counsel for Mr Bhugon, made written submissions in relation to the approach that the Tribunal should take on the question of costs. He argued that The following general principles have been expressed in the cases:

a) Unless there are special circumstances, each party will bear their own costs;

b) Something more than mere success is required to justify an order for costs: Brooks Maher v Cheung [2001 NSWADT 18 at [11]; Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6 at [6]; and

c) The discretion in relation to costs is a broad one: Graham v Director General, Department of Community Services [2001] NSWADTAP 4 at [33].

13 Mr Gasic conceded that the Tribunal has generally resisted submissions that adverse costs orders be made as a sanction to reprove allegedly unreasonable conduct by a government agency which has led to a citizen having no option but to apply to the Tribunal for relief, and in so doing incurring professional costs. He referred to the Appeal Panel decision in Charteris-v- General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39 as authority for this general principle.

14 However, he argued that there are no authorities to assist the Tribunal in respect of wilful breaches by the relevant authority of positive obligations under an Act and Regulations. Moreover, the language of Section 88 of the Act is such that success is not a condition precedent to an award for costs but the discretion is guided by the existence of “special circumstances".

15 In support of the proposition that costs may be awarded against a successful party if misconduct was such that it invited litigation Mr Gasic referred to the views of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 who stated at paragraphs 69 and para 70:

"The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874, Devlin J formulated the relevant principle as follows:
'No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to he deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct. '
‘Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful parry by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.

Apart from anomalous examples in the equity jurisdiction, there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct The Court may award costs in favour of a defendant where the plaintiff has obtained only nominal damages. However, this practice can be justified on the basis that, in reality, the successful party lost the litigation and the unsuccessful party won."

16 Mr Gasic argued that WorkCover’s conduct was such that it wilfully ignored Mr Bhugon's solicitors' requests to make representations pursuant to Clause 287(2) of the Regulation. When an Application was lodged with the Tribunal, WorkCover took it upon itself to view that correspondence as a request for an internal review of its decision, a process falling outside the Regulation and inconsistent with the nature of the relief sought. He submitted that either WorkCover misunderstood its obligations under the Regulation, which is very unlikely as it was clearly spelled out for them in correspondence dated 30 June 2003 and 7 July 2003, or it was wilful in its disregard for the Regulation as it applied to them.

17 In his submission WorkCover clearly denied Mr Bhugon natural justice and due process when it sought to prosecute him for non-compliance with his obligations pursuant to certain guidelines, but was not willing to comply with obligations imposed upon it by the Regulation when specifically reminded of them. At no stage prior to or after lodgement of the Application was WorkCover willing or ready to concede that it had failed to provide Mr Bhugon with an opportunity to make representations in accordance with the Regulation.

18 It is further argued that it was improper and inappropriate for WorkCover to rely on material in these proceedings that was not used as a basis for the 20 June 2003 decision. Documents produced as evidence before the Tribunal suggests that such information was readily available to the investigators at the time Mr Bhugon was interviewed, but they were not put to Mr Bhugon.

19 Mr Gasic argued that in all the circumstances, and but for the misconduct of WorkCover, this matter should not have gone to the Tribunal. It was a matter that was properly to be determined under the Regulation and would have been so determined without the need to bring the matter before the Tribunal.

20 These are "special circumstances" of the kind contemplated by the Tribunal’s Practice Note in respect of costs, which justify an award of costs against WorkCover. Practice Note No 12 sets out, by way of example, circumstances that may be special and justify a cost order. These are:

“whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

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;

in matters under the Retail Leases Act 1994 where a party lodges an unconscionable conduct claim instead of a retail tenancy claim and it is found that there was no basis for the unconscionable conduct claim”.

21 Mr Gasic argued that the above examples emphasise circumstances where one party's conduct in the proceedings has placed the other party at an unfair disadvantage. Clearly the above listing is not exhaustive. It is argued that WorkCover, by its misconduct, has disadvantaged Mr Bhugon by failing to concede, prior to and during the proceedings, that it was in breach of its obligations under Clause 287(2) of the Regulation. Such failure to concede the breach caused proceedings to be commenced and prolonged the proceedings. Mr Bhugon submits that WorkCover's application for costs is misconceived and should be dismissed.

Workcover’s case

22 Mr Muddle, counsel for WorkCover, argues that the application that it pay Mr Bhugon’s costs is extraordinary and misconceived. WorkCover seeks an order that Mr Bhugon pays its costs or, in the alternative, that each party pays its own costs.

23 Mr Muddle argues that much of Mr Bhugon's submissions are devoted to advancing a contention that WorkCover did not follow procedural steps said to be a pre-condition to the exercise of its powers. Five things must be noted. First, WorkCover does not accept Mr Bhugon's contention. Secondly, Mr Bhugon advanced this contention on his Stay application and failed. Thirdly, Mr Bhugon could have pursued this contention at the hearing but chose to abandon the proceedings on the eve of the hearing. Fourthly, despite this history, Mr Bhugon's submissions are based on the false premise that his contention is correct. Fifthly, and perhaps most importantly, section 63 of the Act makes it perfectly clear that the Tribunal provides an avenue for merits review not judicial review of administrative action. If Mr Bhugon's case propounded an absence of power due to alleged procedural deficiencies, then the Application should have been in the Supreme Court as the Tribunal is bound by section 63 of the Act to apply merits criteria.

24 Mr Muddle also relies on the Appeal Panel views expressed in Charteris v Leichhardt Municipal Council (No 2) [2001] NSWADTAP 39 and argues that the Tribunal has firmly set its face against:

(a) allowing costs applications to be used as an avenue for examination of pre-litigation conduct of the parties; and

(b) using costs orders as a means of expressing disapproval of an agency's conduct when the agency has been successful.

25 Mr Muddle further argues that there is no factual basis for Mr Bhugon's application for costs. Mr Bhugon clearly had an opportunity to put his case but declined to do so. By its letter of 20 May 2003 WorkCover told Mr Bhugon that it had "completed an investigation" and was "of the opinion that you are in possible breach....". He was told of the prospect of cancellation. He was invited to an interview. His attendance was voluntary and no notice was ever issued under section 62 of the Occupational Health and Safety Act 2000.

26 Mr Muddle states that the transcript of the interview on 6 June 2003 records that the substance of the matters then known to the Inspector were put to Mr Bhugon and that Mr Bhugon was invited to provide anything further in answer to the allegations within 7 days. Mr Bhugon advanced no further evidence or submission at that time or at any time thereafter before commencing the proceedings on 17 July 2003. After Mr Bhugon's solicitor was advised of an internal review by letter of 21 July 2003, Mr Bhugon still declined to provide anything further in support of his position. Instead on the first return of his Application for Review, he filed an Application for a Stay. He failed on his stay application but confirmed thereafter that he was pursuing the proceedings. WorkCover filed its evidence. Mr Bhugon failed to comply with two sets of the Tribunal's directions for the filing of evidence. On the morning of the hearing he formally withdrew his claim having given notice of his intention to do so only after the second date had passed for him to file his evidence.

27 Mr Muddle further argues that nothing that WorkCover did prolonged the proceedings. Mr Bhugon abandoned them at the last moment without ever having filed any evidence to support his claim. Mr Muddle also rejects Mr Bhugon's submissions that WorkCover "was wilful in its disregard of the Regulation" and that there was something improper in WorkCover relying on new evidence at the hearing of the stay application. He argues that the Tribunal is bound to make the best decision on the merits and on the evidence available at the time of its decision.

28 In contrast, Mr Muddle argues that in terms of Practice Note 12, there are special circumstances warranting a costs order against Mr Bhugon:

(a) Having lost his stay application, Mr Bhugon affirmed (through solicitors) his intention to proceed and caused WorkCover to incur significant expense in putting on evidence.

(b) Mr Bhugon failed to comply with two orders of the Tribunal for the service of its evidence by 1 October 2003 and subsequently 20 October 2003.

(c) Mr Bhugon then abandoned the proceedings without ever having filed evidence dealing with the essential factual allegations first put to in during the interview.

(d) The evidence against Mr Bhugon was overwhelming and he had no reasonable prospects on the Application - as he admitted by abandoning them at the 11th hour. It was unreasonable not to have discontinued the proceedings earlier.

29 As noted above, section 88 of the Act gives the Tribunal the power to award costs. The Tribunal’s power to award costs is a discretionary power. It must therefore be determined whether, in the circumstances of this matter, that discretion ought to be exercised and if so, in whose favour it should be exercised.

30 Pursuant to section 88(1) of the Act the Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs. This provision has been considered in numerous cases before this Tribunal, most commonly in retail tenancy matters. In Protogeros -v- Fouzas [2004] NSWADT 62 I stated:

“50 The issue of costs has been considered in numerous cases before this Tribunal, most recently by Judicial Member Molloy in Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27. I agree with Judicial Member Molloy’s summary of the findings by the Appeal Panel decision in Randi Wiks Pty Limited v. Pokana Pty Limited [2003] NSW ADTAP 27 which make it clear that:

(a) The question whether the fact that have been proved constituted "special circumstances" was not a question of law but one of fact.

(b) There is a significant difference between Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 and Section 88 Administrative Decisions Tribunal Act 1997, the difference being that while Section 88 requires a finding of "special circumstances", Section 109 lays down a criteria of "fairness". This distinction is crucial and the Victorian Act does not give direct guidance to the interpretation of Section 88.

(c) Arguments by an unsuccessful party that are put forward in good faith and have a reasonable basis do not of themselves entitle a successful party to an order for costs. It may well be different if the unsuccessful party had persisted with an unarguable case.

(d) The fact that one of the objects of the Administrative Decisions Tribunal, as set out in Section 3(b), to the effect that this Tribunal should be "accessible", does not imply that costs should regularly follow the event …

(e) In order to award costs the Tribunal must be "satisfied" that there are "special circumstances warranting an award of costs " (Section 88) and "special circumstances" means circumstances that are "out of the ordinary, but without having to be extraordinary or exceptional".

51 Applying these principles to the present circumstances, it is necessary that I find circumstances that are out of the ordinary, but not necessarily extraordinary or exceptional, that would warrant an award of costs. It is for the Tribunal to determine what are special circumstances in the particular circumstances of a matter before it. The Tribunal has to be satisfied that the circumstances warrant an interference with the position that each party should bear their own costs.”

31 In the circumstances of Protogeros -v- Fouzas I considered that an award of costs was warranted. The circumstances of this matter are similar to those in Protogeros -v- Fouzas in some respects but are generally quite different. This is not a matter where the Tribunal lacks jurisdiction or where the matter was commenced over protest of the respondent, as was the case in Protogeros -v- Fouzas.

32 Mr Bhugon's case is essentially that WorkCover did not follow proper procedural steps and that this failure resulted in the commencement of these proceedings and that WorkCover should have admitted the breach of procedure and brought the proceedings to an end. Each party referred me to the Appeal Panel decision in Charteris -v- General Manager, Leichhardt Municipal Council. At paragraph 22 of that decision the Appeal Panel stated:

“22 This is not the first time that an aggrieved applicant has sought to have the Tribunal focus on the pre-litigation conduct of the agency in dealing with the matter before it reached the Tribunal. We reiterate the view expressed by the President sitting at first instance that caution must be observed in allowing costs applications to become a vehicle for the general scrutiny of the conduct of one of the parties prior to the commencement of the litigation: Raethel v Director-General, Department of Education and Training [2000] NSWADT 56.”

33 In Brooks Maher -v- Cheung (2001) NSWADT 18 (12 February 2001) the Tribunal stated at paragraph 14:

“14 We are satisfied that the plain meaning of “special circumstances” is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But “special circumstances” alone are not sufficient. Under s 88(1), the special circumstances must “warrant an award of costs.” The circumstances which would or would not “warrant an award of costs” cannot be exhaustively listed. However where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted.”

34 In Ciesielski -v- Broadway Shopping Centre Sydney Pty Ltd [2000] NSWADT 25 the Tribunal’s Deputy President stated at paragraph 35:

“35 In my view, the Tribunal can award costs in cases where, for example, a party has put the other side to unnecessary expense by inexcusable delay or failed to comply with Tribunal directions.”

35 Caution is necessary in considering the material that each party sought to rely on in support of their respective positions. After considering that material I cannot accept Mr Bhugon's argument as providing a basis for an award of costs. It presupposes that WorkCover did not have an arguable case and there is no basis on which that conclusion can be reached. WorkCover was entitled to prosecute its case and chose to do so. No criticism can be levelled at it for adopting that approach. In contrast, Mr Bhugon failed to comply with the Tribunal’s timetables and ultimately withdrew the application.

36 In the circumstances, it is my view that there are no special circumstances warranting an award of costs in Mr Bhugon’s favour.

37 I note Mr Muddle’s submissions in support of WorkCover’s application. There is little doubt that WorkCover was caused to incur significant expense in putting on evidence. It is also clear that the application was withdrawn with minimal notice and it is likely that this would have also caused WorkCover significant inconvenience. Notwithstanding my understanding of those views, I am not satisfied that an order of costs is warranted. In this case Mr Bhugon’ conduct was at the margins. However, I do not think that his conduct is severe enough to amount to “special circumstances.” In my view it does not demonstrate a degree of unreasonableness that goes beyond what might be appropriate in connection with the reasonable conduct of litigation.

38 In the circumstances of this matter I am not satisfied that there are special circumstances warranting an interference with the position that each party should bear their own costs. Accordingly, there should be no order for costs.

Order

1. Each of the applications for costs is refused. Each party is to pay their own costs.