Blanch v Chief Commissioner of State Revenue

[2008] NSWADT 24

CITATION:	Blanch v Chief Commissioner of State Revenue [2008] NSWADT 24
DIVISION:	Revenue Division
PARTIES:	APPLICANT Beverley Blanch RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	066132
HEARING DATES:	30 November 2007
SUBMISSIONS CLOSED:	30 November 2007
DATE OF DECISION:	23 January 2008
BEFORE:	Verick A - Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Atlas v Kalyk [2001] NSWCA 10 Cachia v Hanes (1994) 179 CLR 403 Charteris v General Manager, Leichhardt Municipal Council (No.2) (GD) [2001] NSWADTAP 39 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6 EG (No2) v Commissioner of Police, New South Wales [2004] NSWADT 226 Latoudis v Casey (1990) 170 CLR 534 No 2 Pitt Street Pty Ltd v Wodonga Rural City Council (No3) [1999] 3 VR 439 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 Re Norman (1886) LR 16 QBD 673 Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin (1997) 186 CLR 622 The Law Society of New South Wales v Stephen Gary Spring and Another [2007] NSWSC 1273
REPRESENTATION:	APPLICANT In person RESPONDENT S Free, barrister
ORDERS:	The application for costs is dismissed.

REASONS FOR DECISION

Background

1 This matter came to the Tribunal as an application to review an objection decision made by the respondent in relation to an objection to a land tax assessment made pursuant to Land Tax Management Act 1956 (the “LTM Act”). It was part heard when it was an adjourned for further hearing. On the adjourned hearing date the parties informed the Tribunal that the matter had been settled but the applicant sought an order for costs against the respondent.

2 The applicant’s claim for costs is not based on the final outcome of the settlement, which was reached by the respondent accepting the applicant’s claim for the principal place of residence exemption for her residence situated at Pyrmont. The claim for costs is wholly based on the respondent’s conduct in dealing with her case prior to the application to the Tribunal.

3 The facts in this matter are quite unusual. The applicant purchased on 9 December 2004 (date of settlement) an almost derelict Federation semi detached building in Pyrmont, which had been uninhabited for 7 years. The applicant decided to occupy the building in that state as her principal place of residence. She moved her furniture and personal belongings on the 9 December 2004. On the 10 December 2004 she left for a prearranged overseas trip and returned on 25 January 2004 to her Pyrmont residence and commenced refurbishment work. Whilst the applicant was away, one of her sons occupied the property.

4 Facilities like gas was connected on 13 December 2004, in the interim a “BBQ was used”, the toilet was repaired and meanwhile the community services in the area were used and electricity was connected a little later, whilst the applicant and her son used candles.

5 The “wall preparation, sanding, plastering and painting” refurbishment work required the applicant to leave the residence in late February 2005 for a temporary period when she resided in an apartment owned by her. The applicant moved back when the refurbishment work was completed. She has now fully restored the building and has lived in it as her principal place of residence since May 2005.

6 The respondent took the view that the applicant was not using and occupying the property as her principal place of residence on 31 December 2004 on the basis of the fairly unusual facts. However, before the Tribunal the applicant was able to demonstrate that her absences from the property after occupation on 9 December 2007 were entirely temporary and that she had not used and occupied any other property as her principal place of residence. Against all the facts the Tribunal was concerned with the position taken by respondent and when the matter was adjourned for further hearing it was suggested to the respondent to have another review of the matter. The respondent proceeded to reconsider the matter especially to review his earlier decision on the basis of the clarification by the applicant of her continuous use and occupation, with two fairly explained absences, of the property as her principal place of residence. And the respondent proceeded to accept that the applicant was entitled to the principal place of residence exemption for the 2005 land tax year and reversed his earlier objection decision.

Applicant’s claim for costs

7 The applicant’s claim for costs as set out in her written submissions was as follows:

“The Chief Commissioner, Office of State Revenue wrongly levied Land Tax in the year 2005 for this property and since mid 2005, the applicant has been attempting to convince the Chief Commissioner, Office of State Revenue that the property at … John Street, Pyrmont has been since 9 December, 2004, the applicant’s principal place of residence.

The applicant over the past two years has:

(a) Written numerous letters to the OSR with comprehensive, detailed explanation of her living arrangements.

(b) Telephoned and spoken to numerous members of OSR personnel, including Mr David Martin.

(c) Appealed to the Administrative Decisions Tribunal to review the Chief Commissioner’s decision.

(d) Attended the ADT on (6) occasions.

(e) Prepared and obtained seven (7) affidavits and served same at the ADT and the Crown Solicitors Office.

On 3 August, the applicant again attended the ADT, where the matter was heard before the Honourable Member, Mr Verick, indicated to the Barrister appearing for the Crown Solicitors’ Office that the Chief Commissioner should review the applicant’s circumstances again.

On 9 August 2007 the applicant received a letter from the Chief Commissioner, Office of State Revenue NSW Treasury, signed by David Martin. Inter alia the letter states… ‘I have reviewed the facts of this case and after listening to your testimony at the Tribunal I have determined that the property at … John Street, Pyrmont was your principal place of residence as at 31 December, 2004.’

There was nothing in the applicant’s testimony on 9 August 2007, which was not available to the Crown Solicitors office in affidavits provided and previous submissions made by the applicant. In fact the entire evidence had been provided to the Crown many months before this date.

The applicant believes she is entitled to be compensated for the following and is seeking the costs as detailed:

Application to ADT to commence proceedings $55.00

Costs involved in obtaining 7 affidavits $555.00

telephone calls, faxes

including printing

paper

photocopying

postage

costs involved in obtaining signatures and witnessing by Justice of the Peaces (travelling to Five Dock, Dobroyd Point, Mosman).

The applicant is a retired Superintendent of Police and is now a Marriage Celebrant – her professional costs are $50.00 per hour. The following costs relate to the time she has been required to spend to progress her application.

Hours involved:

Preparation of submission to support applicant 10 hours

Preparation of submission in response to the Crown response 5 hours

Preparation of 7 Affidavits 10 hours

Obtaining signatures, and taking deponents to Justice of the Peace for witnessing of affidavit 8 hours

Attendance at ADT on 6 occasions 15 hours

TOTAL HOURS 48

At $50.00

Total $2,400.00

TOTAL COSTS CLAIMED $2,950.00”.

8 The claim for costs is essentially on the basis that the respondent’s officers were properly briefed by her in writing and telephone calls but had failed to accept her claim for the exemption. There is no suggestion that there was any mala fides or vexatious behaviour by any officer.

Relevant legislative provision

9 The Tribunal has jurisdiction to award costs under section 88 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). 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 a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any 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.”

Case Law

10 As observed by his Honour Santow JA (with whom Mason P and Brownie AJA agreed) in the New South Wales Court of Appeal in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at paragraph 55, the “determination of costs is a discretionary matter and moreover a matter of practice and procedure”. Generally speaking, in litigation, “costs follow the event” and the party that succeeds is usually awarded costs. The Tribunal’s power to award costs is, however, governed by the statutory provisions found in section 88 of the ADT Act. Under section 88, the Tribunal is allowed to award costs “in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs”. The preliminary requirement is that the party seeking costs must identify “special circumstances”. The Tribunal must, as a second stage, decide if those “special circumstances” warrant the awarding of costs.

11 The question whether a circumstance is a special circumstance is essentially a question of fact. In EG (No2) v Commissioner of Police, New South Wales [2004] NSWADT 226 “special circumstances” were described by the Tribunal as “circumstances, which are out of the ordinary; not necessarily circumstances which are extraordinary or exceptional”.

12 The President of the Tribunal has issued on 9 October 2006 an updated Practice Note Number 12 dealing with “Costs” “to advise parties of the law and usual practice of the Tribunal in relation to costs”. In the Practice Note the President has set out the following as special circumstances that may justify a costs order:

“The examples are not exhaustive:

(a) whether a party has conducted the proceedings 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 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 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) in matters under the Retail Leases Act 1994 where a party lodges an unconscious conduct claim instead of a retail tenancy claim and it is found that there was no basis for the unconscious conduct claim;

(e) where an appeal is lodged and the Appeal Panel considers the appeal was without any real prospect of success.”

13 The list is not meant to be exhaustive, as the legislature has quite intentionally given the Tribunal the discretion to determine whether there are “special circumstances” in each case on the particular facts. Some guidance for that view can be found in the following statement in the judgment of Lopes LJ in Re Norman (1886) LR QBD 673 at 677:
“The statute uses the words ‘special circumstances’. Those are wide, comprehensive, and flexible words, and I think that the legislature intended them to be so, and that no court can or ought to lay down any exhaustive definition of them. … It is for the discretion of the judge to say what are special circumstances in a particular case.”
14 The New South Wales Court of Appeal in the recent decision in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, in considering costs, has regarded the conduct of the appellant, a landowner, in refusing to recognise the existence of a retail shop lease granted to the respondent by the previous owner, in failing to register the lease and in withholding consent to the assignment of the lease, “as clearly out of the ordinary and grossly unreasonable so far as the respondent was concerned”, which the Court held constituted “special circumstances” and warranted a costs award in favour of the respondent under section 88 of the ADT Act.

15 In making this order Santow JA (with whom Mason P and Brownie AJA agreed) made the following observations:

’60. It is not necessary to determine whether in the circumstances the appellant committed equitable fraud. In my view it suffices that the conduct of Cripps and Jones, in relying upon their status as the registered proprietors of the freehold and doctrine of indefeasibility of title to wrongly deny registration and consequently assignment of the lease, so acted as by their conduct to give rise to special circumstances; that is, circumstances that were clearly out of the ordinary and grossly unreasonable so far as the respondent tenant was concerned. On the one hand, the Tribunal correctly concluded that the respondent, through no fault of its own, has been placed in the situation where it has been forced to pursue this litigation. Yet it still failed to find special circumstances. With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances here applied. For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of “ serious unfairness ” is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.’
16 Another useful approach in the determination of “special circumstances” has been suggested by her Honour Balmford J in No 2 Pitt Street Pty Ltd v Wodonga Rural City Council (No 3) [1999] 3 VR 439. In that case her Honour considered the meaning of “special circumstances” in section 52(2) of the Victorian Civil and Administrative Tribunal Act and at page 448 of her judgment expressed the view that “special circumstances” meant something unusual or uncommon but not far removed from the ordinary as to be exceptional or extraordinary.

17 In Raethel v Director-General, Department of Education and Training [2000] NSWADT 56, in considering whether costs can be awarded to punish agencies for maladministration, the President of the Tribunal made the following useful observation:

“57. To use the costs power as some kind of sanction to punish agencies for poor administration would, I consider, involve the error condemned frequently by the courts of using costs sanction for punitive rather than compensatory purposes: Latoudis v Casey (1990) 170 CLR 534 at 542-3 per Mason CJ; and at 567 per McHugh J. The oversight body for bad administration in government is the Ombudsman’s office. This Tribunal only becomes involved in the issue of bad administration to the extent that statutory procedures pertinent to an application may not have been observed.”
18 In Charteris v General Manager, Leichhardt Municipal Council (No2) (GD) [2001] NSWADTAP 39, the Appeal Panel of this Tribunal reiterated the view expressed by the President in the above case “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”. The Appeal Panel went on to make the following observations as to what circumstances may warrant costs for pre-litigation conduct of one of the parties:
“26. On the other hand, as acknowledged in Raethel and in the decision under appeal, there may be circumstances where it is appropriate to have regard to the pre-litigation conduct of one of the parties. We agree with the comments of McHugh J in Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin (1997) 186 CLR 622 at 624-625, albeit made in relation to cases disposed of without hearing (citations omitted):
‘In some cases … the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence litigation.’”
19 In awarding costs, costs have to be confined to the application and the proceedings of the matter. Subsection 88(4) allows “(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”. In Raethel , the Tribunal, in rejecting the applicant’s submission that the subsection extends to costs of “events and circumstances that bring about or cause the application”, said:
“49. In approaching the question of the meaning of ‘proceedings giving rise to the application’, the Tribunal considers it useful to look to the object of section 88. The object is to set a rule as to ‘costs’. That expression (as already) noted refers to costs connected with obtaining legal representation. With that as background, the term ‘proceedings’ when used to refer to events antecedent to the proceedings in the Tribunal should be construed as referring to procedures of a kind where legal representation might be reasonably likely to play a part.”
20 Generally costs are only awarded to a party that is legally represented but orders have been made by the Tribunal in cases to reimburse disbursements incurred by a party not legally represented. In Director General, Department of Education and Training v Simpson (GD ) [2001] NSWADTAP 6, in an application for costs by an applicant who appeared in person, the President (on behalf of the Appeal Panel) in handing down an ex tempore decision, held that:
“7. The application is made by an unrepresented party and I explained in the course of submissions to Mr Simpson, the position is (as is reflected in the decision of Raethel v Director-General, Department of Education and Training [2000] NSWADT 56) that the purpose of the award of costs is to assist parties in respect of the engagement of legal representation. There is clear authority that costs orders cannot be made in favour of unrepresented applicants in respect of (what might be described as) the inconveniences and loss of income associated with their attendance at proceedings to represent themselves: Cachia v Hanes (1994) 179 CLR 403. [Now see also, Atlas v Kalyk [2001] NSWCA 10.] As I understand the position, Mr Simpson did not press any claims in those categories.

8. However, he did press claims in respect of expenses associated with the proceedings, … That is that it would be a proper exercise of the costs’ discretion in respect of an unrepresented applicant to compensate the applicant in regard to out-of-pocket expenses of the kind that Mr Simpson described which include, for example, photocopying and postage and obtaining of professional typing services.”

21 Essentially, costs are awarded to litigants to indemnify them fully or partially for the expenses incurred for engaging counsel or being represented by a solicitor. There is no power under section 88 of the ADT Act to make an award of costs in favour of an unrepresented person in respect of time spent by the person in relation to the proceedings at the Tribunal. But as suggested by the Appeal Panel in Simpson an unrepresented applicant may be indemnified for outgoings actually incurred, like travelling expenses, directly related to the proceedings at the Tribunal.

22 An applicant may, however, be entitled to costs in cases where the applicant is represented by an agent. In cases before the Tribunal a party can be represented under section 71(1)(b) of the ADT Act by an agent who is not an Australian legal practitioner as was held very recently in The Law Society of New South Wales v Stephen Gary Spring and Another [2007] NSWSC 1273.

23 In Spring’s case, Mr Spring who was not at the relevant time an Australian registered legal practitioner, was a director of a company that advertised on the web and Mr Spring had provided advice and appeared before the Tribunal in relation to a retail lease matter for an applicant. The applicant was charged a fee for Mr Spring’s and the company’s services. The Law Society of New South Wales brought an action in the Supreme Court upon the assertion that Mr Spring and the company did certain work in proceedings at the Tribunal which they were prohibited from doing because Mr Spring was not an Australian Legal Practitioner and sought declaration against Mr Spring and the company that they had contravened section 14(1) of the Legal Profession Act 2004 (NSW). Section 14(1) of the Legal Profession Act 2004 provides that a person must not engage in legal practice in New South Wales unless the person is an Australian legal practitioner.

24 In dismissing the action, Barr J held as follows:

“74. In my opinion the Law Society’s submissions should not be accepted. Section 71 Administrative Decisions Tribunal Act means what it says. It is a statutory authority for a party in proceedings in the Tribunal to be represented for all purposes in the proceedings by an agent, including an agent who is not an Australian legal practitioner. Section 14(2) Legal profession Act makes express exceptions for compliance with its requirements. Section 71 is such an exception. There is no conflict between the sections and no warrant for reading down the plain meaning of section 71 and section 77C Retail Leases Act. ”
25 In Spring , the Court was not required to consider if a successful applicant before the Tribunal was entitled to claim as costs, fees and other outgoings incurred in engaging an agent to advise and appear before the Tribunal on behalf of the applicant. The question therefore remains whether a successful applicant who can identify “special circumstances” is entitled to the costs incurred in engaging an agent to represent the applicant at the Tribunal. The better view would be that a successful applicant who incurs expenses in engaging an agent to represent him or her is entitled to an award for costs having regard to the special circumstances of the case.

Submissions

26 The applicant’s case is essentially that the “special circumstances of this matter are that the Chief Commissioner of State Revenue failed to accept the applicant’s objection, although ample evidence had been provided by the applicant that the property was her principal place of residence”. The applicant further submitted that because the respondent “refused to believe that evidence” the only recourse was for “the applicant to seek justice from the ADT” and the “applicant has spent considerable time and money pursuing this justice and is seeking to be compensated”.

27 In her written submissions, the applicant had claimed that “the pre-litigation behaviour of the respondent was so unreasonable as to be considered vexatious and it left the applicant no alternative than to pursue justice through the ADT”. But at the hearing, the applicant, in the absence of any evidence, quite correctly withdrew the allegation that the respondent’s pre-litigation behaviour was “vexatious” but maintained that the respondent had acted “unreasonably”.

28 The applicant also did not accept that any evidence given by her at the Tribunal made any difference to the final outcome in the matter.

29 The respondent has submitted that the application for costs should be dismissed because ‘there are no “special circumstances” in the relevant sense’ and even ‘if such circumstances existed, an award of costs in favour of the applicant would not be warranted.’ Further, it was submitted that:

“7. Even if it could be established that there were insufficient grounds at any stage for the Chief Commissioner to defend the proceedings, there is no evidence whatsoever to suggest that the Chief Commissioner acting ‘vexatiously’ in the sense of acting with improper motive of wanting to cause trouble or annoyance to the applicant.

8. Costs awards cannot be made to punish a respondent agency that has been unsuccessful in defending an application or as a general remedy for perceived maladministration: Raethel v Director-General Department of Education and Training [2000] NSWADT 56 at [57]…

9. The applicant is evidently aggrieved about the entire bureaucratic of her land tax assessment and the objection process. These are not matters relevant to the question of whether costs should be awarded in relation to the Tribunal proceedings. This is not one of the exceptional cases in which the pre-litigation conduct of a part is a relevant matter for inquiry: see Charteris v General Manager, Leichhardt Municipal Council (No.2) (GD) [2001 NSWADTAP 39 at [26].

10. …

11. To the extent that the applicant is attempting to recover ‘costs’ in the form of a payment for her own lost time (including inconvenience, loss of income etc), the application is misconceived and no award of costs can be made in respect of such lost time. A litigant is not entitled, by way of an order for costs, to recover payment for the time which the litigant has spent preparing and presenting his or her case: Cachia v Hanes (1994) 179 CLR 403 at 417; Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6 at [7]. To the extent that the applicant claims an award of costs to cover certain expenses, the claim is objectionable in that the claimed expenses are not properly particularised.”

Discussion and Reasons for Decision

30 The applicant’s case for costs is essentially based on the conduct of the respondent, which led to the proceedings before the Tribunal. The applicant was clearly satisfied that the respondent at the Tribunal had acted properly and professionally. The Tribunal was equally satisfied that the conduct of the respondent at the Tribunal was that of a model litigant.

31 The Court of Appeal decision in Cripps v G & M Dawson Pty Ltd has established that the conduct, which led to the proceedings at the Tribunal, is as relevant as the actual conduct of the proceedings before the Tribunal. The Court of Appeal observed that it was possible to discern, through an examination of the way a party has acted, that special circumstances applied. The Court of Appeal in Cripps held that the conduct of the respondent gave rise to special circumstances, as it was “clearly out of the ordinary and grossly unreasonable”. The Court of Appeal (Santow JA) went on to say:

“With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding ‘serious unfairness ’ is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.”
32 The short question that needs to be considered in this matter is whether the conduct of the respondent in disallowing the applicant’s objection was such that it was “clearly out of the ordinary and grossly unreasonable”.

33 In this matter, the special circumstances relied upon by the applicant, said to be out of the ordinary, is despite “strong evidence which was presented by the applicant” that the property was her principal place of residence, the respondent “refused to believe that evidence and the only recourse was for the applicant to seek justice from the ADT”.

34 This was, unfortunately, not a straightforward case. The facts were very special and unusual. The facts before the respondent at the objection decision stage were understood by the respondent to lack the “continuous use and occupation” requirement to establish that the property was her principal place of residence on 31 December 2004. The property when occupied by the applicant on 9 December 2004 was in a derelict state and without essential services. The information before the respondent at the objection stage was that the applicant went for an overseas trip on 10 December 2004 and on her return from the overseas trip she moved to an apartment that she owned. And that the applicant only occupied the property after refurbishment, sometime in May 2005.

35 On those facts, the respondent formed the view that the property was not the applicant’s principal place of residence on 31 December 2004. That, in the opinion of the Tribunal, was a conclusion that could have been reached on the facts then before the respondent. The conclusion was of course not correct in law, as on 31 December 2004, the applicant had no other place in New South Wales or elsewhere that could have been treated as her principal place of residence. The only place that she could properly regard as her principal place of residence on that date was the property. The applicant has, from that date, continued using and occupying the property as her principal place of residence with two fairly short and well explained temporary absences.

36 At the Tribunal, the applicant’s narration of the facts as from 9 December 2004 until her final occupation of the property in May 2005 clearly provided a different picture to the one understood by the respondent at the objection stage. Critical to the outcome was the clear explanation by the applicant that she, on her return from the overseas trip, resumed occupation of the property for a period until circumstances compelled her to temporarily leave the property for a short period of time.

37 There was no suggestion before the Tribunal that the respondent had acted in a vexatious manner in dealing with the applicant’s objection. The applicant’s principal grievance was that the respondent could have, on the facts supplied, decided the objection in her favour. That may go to the competency of the respondent but certainly does not give rise to “special circumstances”. There is no evidence before the Tribunal that the respondent’s conduct was out of the ordinary and grossly unreasonable. There was also no suggestion that the respondent had acted dishonestly in dealing with the objection, as would be the case where maladministration is alleged. In any case, costs cannot be awarded “as a general remedy for perceived maladministration”(see Raethel).

38 It is understandable that the applicant is dissatisfied with the way the respondent has handled her case, requiring her to take the matter to the Tribunal. But costs are not granted to all successful applicants. The costs provisions are designed to restrict costs only where the successful party can establish special circumstances. The cost provisions ensure that an applicant in person is not discouraged by any prospect of costs being awarded against him or her to take a case to the Tribunal. An applicant can only be penalised with a costs order at the Tribunal if his or her conduct in relation to the proceedings can be regarded as being “out of the ordinary”.

39 As the Tribunal is unable to discern any special circumstances in this matter, the application for costs must accordingly fail. Even if the applicant had established “special circumstances”, the applicant would not have been entitled to the substantial amount claimed for time spent on the preparation of her case and attendances at the Tribunal. Following the decision of the High Court in Cachia it is well settled that costs cannot be awarded in favour of an unrepresented person based upon the time spent by that person in relation to the preparation or attendances at the Tribunal.

40 In reaching the conclusion that the criterion of “special circumstances” was not satisfied in the circumstances, the Tribunal has disregarded the submission made by counsel for the respondent that this was “not one of the exceptional cases in which the pre-litigation conduct of a party is a relevant matter for inquiry”.

41 In awarding costs subsection 88(4) is wide enough to include the respondent’s conduct in dealing with the applicant’s objection. Under subsection 88(4)(b) costs include “the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application”. In this matter the respondent’s conduct in dealing with the applicant’s objection was a relevant factor requiring the applicant to make an application to the Tribunal. In that sense it was incidental to the proceedings giving rise to the application within the provisions set out in subsection 88(4)(b).

Decision

It follows that the application for costs be dismissed.