Carew-Neill v Bower

Case •

[2016] ACAT 54

•

1 June 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CAREW–NEILL v BOWER (Civil Dispute) [2016] ACAT 54

XD 1063/2015

Catchwords:             CIVIL DISPUTE – costs – whether there was an unreasonable delay or obstruction – pursuing the respondent in circumstances where the respondent was not the correct party to the proceedings

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 (ACT) s 48
  Summary Procedure Act 1921 (SA) s 189

Cases cited:Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133

Bell & Decastella And Rob De Castella’s Smartstart For Kids Ltd [2013] ACAT 66

Jarrad v Santamaria [2005] SASC 196

Kloska v National Jewish Association [2009] ACAT 8
CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96
White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806

List of

Texts/Papers cited:   Butterworths Consise Australian Legal Dictionary (Butterworths, 3rd Ed, 2004)

JRS Forbes, Justice in Tribunals (The Federation Press, 3rd Ed, 2010)
Butler, Susan (Ed) Macquarie Dictionary (online ed, at 25 May 2016)

Tribunal:                  Senior Member J Lennard

Date of Orders:  1 June 2016

Date of Reasons for Decision:         1 June 2016

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1063/2015

BETWEEN:

JULIE CAREW-NEILL

Applicant

AND:

LINDA BOWER

Respondent

TRIBUNAL:            Senior Member J Lennard

DATE:  1 June 2016

ORDER

  1. The applicant is to pay to the respondent sum of $1000 on or before 14 June 2016.

………………………………..

President M-T Daniel

for and on behalf of Senior Member J Lennard

REASONS FOR DECISION

  1. This matter was heard by the ACT Civil and Administrative Tribunal (the ACAT) on 29 January 2016. The matter was heard concurrently with matter XD 1020/15. In each application the applicants sought orders for the possession of a Harley Davidson motorcycle. The Tribunal made a finding that Brian Neill (the applicant in XD 1020/15) was the legal owner of the motorcycle.

  2. In this matter the application was for possession of the Harley Davidson motorcycle. The application was dismissed.

  3. The respondent in this matter made an oral application for costs. The matter was adjourned and parties were directed to make written submissions as to costs. Submissions were received from each party.

  4. The respondent’s submissions are summarised as follows:

    (a)Prior to the hearing the applicant was put on notice in relation to costs.

    (b)In similar correspondence dated 26 October 2015, 7 December 2015 and 9 December 2015. The applicant was informed that the respondent did not have possession of, or title to, the motorcycle. The applicant was further informed that the motorcycle was in the possession of Mr Brian Neill.

    (c)On 1 December 2015 the applicant failed to attend a preliminary conference. The respondent had engaged a legal representative to attend this conference.

    (d)The applicant persisted in the claim against the respondent despite Mr Brian Neill admitting having possession of the motorcycle.

    (e)The applicant has made numerous allegations in these proceedings about the conduct of the respondent and has alleged that the correspondence described in paragraph (b) above constituted harassment of her by the respondent’s legal representative.

  5. The applicant’s submissions, so far as they address the question of costs, are summarised as follows:

    (a)the respondent’s legal representative stated at the hearing that she was working pro bono for her client; and

    (b)the applicant failed to attend to the preliminary conference because she had misunderstood the correspondence sent to her in relation to the return of a subpoena.

  6. In Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133 the Court stated that:

    (a)pursuant to section 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) ‘the default and, perhaps, expected position is that parties will bear their own costs’;[1]

    (b)section 48 of the ACAT Act establishes a limited costs regime;[2] and

    (c)section 48 of the ACAT Act is the only source of power to make costs orders.

    [1]     Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133 at [88]

    [2]     Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133 at [94]

  7. Thus, ACAT’s only powers to make costs orders are found in section 48(2) of the ACAT Act unless there are any other applicable legislative provisions.[3]

    [3]      CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96

  8. Section 48 of the ACAT Act provides:

    48Costs of proceedings

    (1)The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.

    (2)However—

    (a)if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant––

    (i)the filing fee for the application; and

    (ii)any other fee incurred by the applicant that the tribunal considers necessary for the application; or

    Examples––subpar (ii)

    ·a fee for a business name or company search

    ·a filing fee for a subpoena

    ·hearing fees

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (b)if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or

    (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

    (d)if the application is an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, and the tribunal makes an order under section 32 (2) (Dismissing or striking out applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.

    (3)For subsection (2) (d), reasonable costs of the other party arising from the application include reasonable legal costs but do not include holding costs.

  9. Section 48(2)(b) of the ACAT Act is the relevant provision to be considered in this application for costs. If the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application, the tribunal may order the party to pay the reasonable cost of the other party arising from the delay or obstruction.

  10. Legislative provisions of this kind cover the manner of pursuit of the litigation and the conduct of the matter, including persistence in a hopeless line of argument, a refusal to make a concession that clearly should be made, or deliberate failure to comply with procedural directions. Such provisions do not contain a power to award costs to successful parties as a matter of course, nor do they contain a power to award indemnity, as distinct from party/party costs.[4]

    [4]JRS Forbes, Justice in Tribunals (The Federation Press, 3rd Edition, 2010) at 16.64

  11. An award of costs does not automatically follow the outcome in ACAT. There must be factors evident in the matter, or in the manner in which the matter was conducted, which would justify the Tribunal moving from the presumption that each party bears their own costs. Where proceedings are “clearly frivolous and vexatious” the Tribunal may consider an award of costs.[5]

    [5]     Kloska v National Jewish Association [2009] ACAT 8 at [51]

  12. The Tribunal determined that the respondent did not have possession or title to the motorcycle in question, and was not a correct party in these proceedings.

  13. Mr Brian Neill had twice in legal proceedings asserted that he is the legal owner of the motorcycle. The first application was made in the Federal Circuit Court – these proceedings were discontinued. His second application was made on 28 August 2015 to ACAT. The application by Ms Julie Carew-Neill was filed with ACAT on 8 September 2015, that is, after Mr Neill’s application to ACAT. Mr Neill asserted that the motorcycle had always been his and had been, since the date of its purchase, always in his possession.

  14. Whatever the decision by ACAT in the application by Mr Brian Neill, the application by Ms Julie Carew-Neill in relation to Ms Bower was superfluous. Should it be decided that Mr Brian Neill was the legal owner of the motorcycle then an action against Ms Bower for delivery of possession of the motorcycle to Ms Julie Carew-Neill was bound to fail. If Ms Julie Carew-Neill had succeeded in any of the arguments she presented in response to Mr Brian Neill’s claim then the Tribunal would, more likely than not, have determined that she was the legal owner and that Mr Brian Neill, who had possession of the motorcycle, would have been lawfully bound to deliver possession to Ms Julie Carew-Neill, and an action against Ms Bower for delivery of the motorcycle to Ms Julie Carew-Neill was bound to fail, and in any event, unnecessary.

  15. During the course of the hearing the applicant conceded that the respondent did not at the time of the application have title or possession of the motorcycle. The applicant further conceded that she had received correspondence from the respondent’s legal representative stating:

    we again confirm our instructions that our client does not have possession or title to the motorcycle in question and never has. We again submit that our client is not the correct party to these proceedings.

  16. The applicant is a law student and ought well to understand the meaning of the correspondence received and the intention of the respondent to ask for costs should the applicant persist in the application.

  17. The respondent’s legal representative made it clear to the Tribunal that she was acting pro bono in the associated matter for Mr Brian Neill, but that she was charging the respondent Ms Linda Bower a fixed fee of $1000.

  18. I am satisfied that the applicant persisted with an application pursuing the respondent in circumstances where the respondent was not the correct party to the proceedings; where the applicant had been informed forcefully on several occasions as to the fact that the respondent did not have possession or title to the motorcycle in question; and that the respondent was being charged for the services of the legal representative. I am satisfied that the applicant persisted with the application pursuing the respondent in circumstances where the applicant was well and truly aware that Mr Brian Neill had possession of the motorcycle and that Mr Brian Neill was at all times, asserting that he was the legal owner of that motorcycle.

  19. The applicant failed to attend a preliminary conference. The Tribunal does not accept the explanation that she interpreted correspondence from the tribunal incorrectly and therefore believed that the preliminary conference had been cancelled. This caused unreasonable delay in the finalisation of this matter. I am satisfied that this conduct falls within section 48(b) of the ACAT Act.

  20. The ACAT Act does not provide guidance as to what type of conduct would fall within ‘unreasonable delay or obstruction’. Neither the second reading speech nor the explanatory memorandum for the ACT Civil and Administrative Tribunal Bill 2008 provide any guidance to tribunal members in the determination of whether an award of costs should be made. I have previously canvassed some of the relevant case law in Bell & Decastella And Rob De Castella’s Smartstart For Kids Ltd [2013] ACAT 66 and summarise the case law relevant to this matter.

  21. In Jarrad v Santamaria [2005] SASC 196 the Court, considering a provision which allowed an award of costs where one party had acted ‘in bad faith or unreasonably[6]’, awarded costs against an unsuccessful applicant where the evidence did not support the assertions made in the application, the affidavits contained significant hearsay and the unsatisfactory and misleading nature of the evidence was such as to lead to the conclusion that the proceedings were brought unreasonably. It is noted that this application was persisted with in light of stringent advice from the respondent’s legal adviser that the respondent was not the correct party in the matter; and that the applicant readily conceded this on the day of the hearing.

    [6]Section 189(c) of the Summary Procedure Act 1921 (SA)

  22. In White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806 the Federal Court noted that the courts must be open to any party who claims that he or she has been wronged and seeks to vindicate a right to compel the enforcement of an obligation. The court noted that the authorities do not support the proposition that simply instituting or maintaining a procedure on behalf of a client which has no or substantially no prospect of success would invoke the jurisdiction [to award costs]. There must be something more, namely, carrying on that conduct unreasonably. It is not clear what is encompassed by ‘unreasonably’ initiating or continuing procedures if they have no, or substantially no, chance of success. It seems to me that it involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either recognition that there is no chance of success but an intention to use the proceedings for an ulterior purpose or with a disregard of any proper consideration of the prospects of success. The Tribunal notes that in the current application the applicant stated that she believed that Mr Brian Neill would transfer ownership of the motorcycle to Ms Bower: the applicant said ‘because it’s obvious that the motorcycle – the only reason we are here is that the motorcycle would be transferred back to her. She will take over the motorcycle’.[7] I am satisfied that the applicant commenced these proceedings for an ulterior motive, and with a disregard for any proper consideration of the prospects of success.

    [7] Transcript of Proceedings in XD 1020/2015 dated 16 January 2016 page 81, lines 25 to 30

  23. ‘Obstruct’ is defined in the Macquarie Dictionary as ‘to block or close up’, ‘to make difficult or oppose the passage or progress’ of something. The Butterworths Consise Australian Legal Dictionary in relation to criminal behaviour defines obstruction as a threat, endeavour, force or offering of violence to prevent or hinder a thing being done; and in relation to roadways defines obstruction as conduct that makes it impossible to proceed along a road. I am satisfied that the applicant in this matter knew, or ought reasonably to have known, that her application was lacking in substance. I am satisfied that the applicant persisted with her application, in full knowledge that the respondent was incurring legal costs and that her refusal, until the day of the hearing to acknowledge that the respondent was not an appropriate party amounts to unreasonable delay and obstruction to the progress and proper disposition of the matter.

Order

  1. The applicant is to pay to the respondent sum of $1000 on or before 14 June 2016.

………………………………..

President M-T Daniel

for and on behalf of Senior Member J Lennard

HEARING DETAILS

FILE NUMBER:

XD 1063/2015

PARTIES, APPLICANT:

Julie Carew-Neill

PARTIES, RESPONDENT:

Linda Bower

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

Julie Heinz, Infinity Legal

TRIBUNAL MEMBERS:

Senior Member J Lennard

DATES OF HEARING:

29 January 2016

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