Chief Commissioner of State Revenue v Kelly (No.3) (Rd)

[2011] NSWADTAP 12

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Chief Commissioner of State Revenue v Kelly (No.3) (RD) [2011] NSWADTAP 12

Hearing dates:

14 February 2011

Decision date:

24 March 2011

Before:

P Callaghan SC, Deputy President
S Frost, Judicial Member
D Koutoulas, Non Judicial Member

Decision:

1.Dismiss the application for leave to extend the appeal to a review of the merits.

2.Dismiss the appeal.

3.Order the Appellant to pay the First Respondent's costs of the appeal (not including any costs in respect of the interlocutory applications the subject of decisions [2010] NSWADTAP 79 and [2010] NSWADTAP 80) as agreed or as assessed on a party and party basis.

Catchwords:

Appeal - costs - fairness - relevant considerations - statutory interpretation

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Land Tax Management Act 1956
Land & Environment Court Act 1979
Land & Environment Court Rules 1996
Uniform Civil Procedure Rules 2005
Victorian Civil and Administrative Tribunal Act 1998 (Vic.)

Cases Cited:

A & J Verdi Pty Ltd v Uckan (RLD) (No.2) [2011] NSWADTAP6
Argus Industrial Group Holdings Ltd v CCSR [2010] NSWADT 136
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
AT v Commissioner of Police [2010] NSWCA 131
B & L Linings Pty Ltd v CCSR (No.5) (RD) [2010] NSWADTAP 21
Carlin Pty Ltd v MCTGF [1991] VCAT 1976
Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267
Industry Research Development Board v Bridgestone Australia Ltd (2004) 136 FCR 47
Jonamill Pty Ltd v Alramon Pty Ltd (No.2) (RLD) 2010 NSWADTAP 3
KT v Sydney Local Health Network (No.2) (GD) [2011] NSWADTAP8
Makenthirarasa v SRA (No.2) (2008) 72 NSWLR 273
O'Sullivan v Medical Council of NSW [2010] NSWADTAP 4
Perry Properties Pty Ltd v CCSR [2011] NSWADTAP 1
Port Stephens Council v Sansom (2007) 156 LGERA 125
Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 71 NSWLR 230
Transport Accident Commission v O'Reilly [1999] 2 VR 436
Ull Pty Ltd v Adwell Holdings Pty Ltd (No.2) [2010] NSWADTAP 49
Valastar Pty Ltd v CCSR [2010] NSWADTAP 84
Western City Developments Pty Ltd v CCSR (No.2) [2010] NSWADTAP 72
World Best Holdings Pty Ltd v Sarker [2010] NSWCA 24
YX v NSW Medical Board [2010] NSWADTAP 55

Category:

Principal judgment

Parties:

Chief Commissioner of State Revenue (Appellant)
Francis Kelly (First Respondent)
Joanne Seve (Second Respondent)

Representation:

Counsel
I Young (Appellant)
Crown Solicitor (Appellant)
J Seve (Respondent in person and as solicitor for First Respondent)

File Number(s):

109019

 Decision under appeal 

Citation:

Kelly v Chief Commissioner of State Revenue (No.2) [2010] NSWADT 52

Date of Decision:

2010-02-19 00:00:00

Before:

Revenue Division

File Number(s):

086114

reasons for decision

1. This appeal is by way of Notice of Appeal filed on 18 March 2010 against the decision in Kelly v Chief Commissioner of State Revenue (No.2) [2010] NSWADT 52 ("the costs decision") of 19 February 2010 wherein the Judicial Member constituting the Tribunal dealt with the issue of costs and ordered that ("the costs order"):

"The Respondent pay half of the Applicants costs of or incidental to proceedings in the Tribunal and the *costs of or incidental to the application (where *costs refers to the costs and disbursements payable by Mr Kelly to Ms Seve (for professional legal services)), as agreed or as assessed under the Legal Profession Act 2004."

1. The costs decision followed the decision in Kelly v Commissioner of State Revenue [2009] NSWADT 253 ("the principal decision") wherein the Respondents here as Applicants in those proceedings ("Mr Kelly and Ms Seve") sought the review of the decision of the Appellant here as the Respondent there ("CCSR" or "the Appellant") dated 30 January 2008 to refuse to:

a. form an opinion under Section 65A(1) of the Land Tax Management Act 1956 ("LTMA") that the proportional unit entitlement (as defined in Section 65A(2) of the LTMA) of Lot 1 the subject of strata scheme SP50871 is unfair or unreasonable; and

b. alter the proportional unit entitlement (as defined in Section 65A(2) of the LTMA) of Lot 1 the subject of the strata scheme SP50870 (for land tax purposes) as necessary to ensure that it is fair and reasonable

i. in respect of the tax year in which the alteration is made (and any subsequent year to which it is applicable);

ii. in respect of the tax years before the tax year in which the alteration is made up to and including the 2000 tax year under Section 65A(2) of the LTMA.

In the principal decision the Tribunal dealt with the review application by revoking CCSR's decision and remitting the matter to CCSR for determination in accordance with the Tribunal's findings (including that CCSR should notify the owners of Lot 2 of the original application under Section 65A(1) of the LTMA made by Mr Kelly and Ms Seve and to take into consideration any response from the owners of Lot 2). The review application related to a request by Mr Kelly and Ms Seve of the CCSR that pursuant to s65A(1) of the LTMA the proportional entitlement for Lot 1 in Strata Plan Scheme 50870 be reduced to ensure that it was fair and reasonable; the Strata Plan Scheme comprised the two residential lots at 13 Park Avenue, Avalon, with a unit entitlement for each lot of 1 out of a total of 2 but with each lot being different in value. The principal decision is not under appeal.

1. In the Notice of Appeal the questions of law arising from the costs decision are specified as whether the Tribunal erred in law in that:

"1. The Tribunal failed to have regard to and to consider the submission of the Chief Commissioner in reliance upon the decisions in Vero Insurance Limited v The Gombac Group Pty Ltd [2007] VSC 117 at [18]-[20] and Carlin Pty Ltd v MCTGF [1999] VCAT 1976 as to the proper construction of section 88(1) of the Administrative Decisions Tribunal Act 1997 ("ADT Act 1997") involving a three step approach and creating a statutory presumption as to no order to costs, being a submission that that was worthy of serious consideration and was seriously advanced to the Tribunal within the principles set out in Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276-277?

2. The Tribunal erred in failing either properly or at all, to take a relevant consideration into account, namely the presumption pursuant to section 88(1) that each party is bear their own costs?

3. The Tribunal adopted the wrong legal test and erred in its construction that the requirement of "unnecessarily disadvantaged" in section 88(1)(a)(i) of the ADT Act 1997 was satisfied if the Respondent pointed to a subjective indication that she was disadvantaged?

4. The Tribunal erred and should have construed section 88(1A)(a)(i) of the ADT Act 1997 by reference to the subject matter, scope, context, and purpose of the provision and accordingly any failing to comply with a direction of the Tribunal was limited to such failures as those which compromised, frustrated or delayed the proceedings?

5. In relation to the construction and application of section 88(1A)(a)(i) of the ADT Act 1997 the Tribunal erred in failing to take relevant considerations into account, namely,

(a) the proceedings before the Tribunal were completed without delay;

(b) The hearing was completed within four months of the first directions hearing;

(c) The hearing was set down for one day and completed in one day; and

(d) There were no adjournments sought by the Commissioner at any stage in relation to the proceedings?

6. In relation to the construction and application of section 88(1A)(b) of the ADT Act 1997, the Tribunal having concluded there was no undue prolongation of the time taken to complete the proceedings by the presentation of untenable submissions (being the sole ground alleged and relied on by the Respondent), the Tribunal then erred, after it had already concluded section 88(1A)(b) of the ADT Act 1997 had no application and was thereby functus, in then subsequently taking irrelevant considerations into account in connection with section 88(1A)(b) of the ADT Act 1997, namely:

(a) the proceedings before the Tribunal were completed without delay;

(b) The hearing was completed within four months of the first directions hearing;

(c) The hearing was set down for one day and completed in one day; and

(d) There were no adjournments sought by the Commissioner at any stage in relation to the proceedings.

which considerations were properly relevant considerations and should have been taken into account, but were not, in the construction and application of section 88(1A)(a)(i) of the ADT 1997?

7. In relation to the construction and application of section 88(1A)(c) of the ADT Act 1997 the Tribunal misunderstood and thereby misconstrued the effect of the decision of the Appeal Panel in Jonamill Pty Ltd v Alramon Pty Ltd (No.2) (RLD) [2010] NSWADTAP 3?

8. In relation to the construction and application of section 88(1A)(c) of the ADT Act 1997 and the decision of the Appeal Panel in Jonamill Pty Ltd v Alramon Pty Ltd (No.2) (RLD) [2010] NSWADTAP 3 at [47] the Tribunal erred in failing to take a relevant consideration into account, namely, the nature of the proceedings as being a review at first instance in the Revenue Division of the decision of the Chief Commissioner on objection?

9. In relation to the construction and application of section 88(1A)(c) of the ADT Act 1997 the Tribunal erred in concluding that the Respondent had a significantly stronger claim and there existed a disparity in strength regarding what the Tribunal called the construction point?

10. In relation to the construction and application of section 88(1A)(c) of the ADT Act 1997 and whether there was a material disparity in the strength of respective claims, the Tribunal erred in taking into account an irrelevant consideration namely its own tentative, provisional or "preliminary view" as to the merits of a particular claim?

11. In the exercise of the discretion to award costs the Tribunal erred in its conclusion that the existence of two factors, which factors individually "only tend to weigh slightly in favour" of the Respondent had the consequence that collectively those factors warranted the making of a costs order?

12. In making an award of costs the Tribunal has exercised its discretion in a manner that is so unreasonable that no reasonable Tribunal could possibly have so exercised the discretion?"

1. There have been two previous decisions on interlocutory issues in this appeal: Chief Commissioner of State Revenue v Kelly & Seve (RD) [2010] NSWADTAP 79 and Chief Commissioner of State Revenue v Kelly & Seve (No.2) (RD) [2010] NSWADTAP 80. In the first of those decisions applications by CCSR for a stay of the order in the costs decision and by Mr Kelly and Ms Seve for summary dismissal of this appeal were both dismissed. In the second of those decisions the Appeal Panel declined to deal on an interlocutory basis with an application by CCSR for leave to extend the appeal to a review of the merits of the costs decision and adjourned that application to be dealt with at the hearing of the appeal.

1. For the purposes of the appeal itself each party lodged written submissions with the Registry and Ms Seve on behalf of the Respondents also forwarded some correspondence to the Registry. At the hearing of the appeal, Ms Seve participated by telephone throughout. Oral submissions were made by Mr I.S. Young of Counsel both in chief and reply on behalf of CCSR and by Ms Seve on behalf of the Respondents.

1. Central to this appeal are the proper construction of s88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") and the application of that provision to the situations that were dealt with in the principal decision and the costs decision.

1. The Court of Appeal has considered the construction of s88 of the ADT Act. In World Best Holdings Ltd v Sarker [2010] NSWCA 24 Handley JA said at [100] and [101]:

"The Panel's power to make an order for costs was defined by s88 of the Tribunal Act as amended by Act No.77 of 2008. The question is whether it would be "fair" to make such an order having regard to a series of factors which included (s88(1A)(a)(v) attempting to deceive the Tribunal (found by the Tribunal); (s88(1A)(a)(vi) vexatiously conducting the proceedings (found by the Tribunal); (s88(1A)(c)) the relative strengths of the claims of the parties and whether a claim had no tenable basis (found by the Tribunal and the Panel); and (s88(1A)(e)) any other matter the Tribunal considers relevant.

The width and open-ended nature of the factors mentioned in s88(1A), particularly that in para (e), makes it very difficult to identify any error of law in a finding that a particular matter is relevant. ..."

In AT v Commissioner of Police [2010] NSWCA 131 Basten JA said at [33] (after noting at [32] the "Model Litigant Policy"):

"That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of the paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s3 (b)-(g) of the Tribunal Act."

1. S88 of the ADT Act is in the following terms:

"88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) 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 it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

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

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

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

(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) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(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 other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment order 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."

The objects specified in s3(b)-(g) the ADT Act are:

"(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,

(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,

(d) to provide a preliminary process for the internal review of reviewable decisions before the review of such decisions by the Tribunal,

(e) to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request,

(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,

(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales."

1. The remarks which we have quoted from AT v Commissioner of Police at [33] have been referred to with approval in numerous Appeal Panel (and other decisions) within this Tribunal e.g. KT v Sydney Local Health Network (No.21) (GD) [2011] NSWADTAP 8; A & J Verdi Pty Ltd v Uckan (RLD) (No.2) [2011] NSWADTAP 6; Perry Properties Pty Ltd v Chief Commissioner of State Revenue [2011] NSWADTAP 1; Valastar Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADTAP 84; Western City Developments Pty Ltd v Chief Commissioner of State Revenue (No.2) [2010] NSWADTAP 72; O'Sullivan v Medical Council of NSW [2010] NSWADTAP 64; YX v NSW Medical Board [2010] NSWADTAP 55 and Ull Pty Ltd v Adwell Holdings Pty Ltd (No.2) [2010] NSWADTAP 49. In our opinion s88 should be applied in each case according to the circumstances of that case, and in accordance with the language of the section, as commented on in AT v Commissioner of Police at [33].

1. The costs decision (now under appeal) was delivered a few months before AT v Commissioner of Police decision and a couple of months before the World Best Holdings decision. In the costs decision at [14] to [19] the Judicial Member included at the commencement of the Discussion and Reasons for Decision part references to the explanatory note with the bill amending s88, the second reading speech and s109 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") and said at [18] and [19]:

"It is clear in the present case, by virtue of s88(1) ADT Act that in the ordinary course, parties are to bear their own costs in the proceedings, unless the Tribunal is satisfied it is fair, having regard to the factors in ss 88(1A)(a)-(e) inclusive, to award costs in relation to the proceedings.

In the present case, therefore, the issue before the Tribunal is whether or not it is satisfied that it is fair to award costs to the Applicants in relation to the proceedings having regard to the factors in ss 88(1A)(a)-(e)? ..."

We see nothing in that approach to the law which is inconsistent with what the Court of Appeal later said in AT v Commissioner of Police or is otherwise inappropriate.

1. CCSR complains in the first Ground of appeal that in the costs decision the Tribunal did not have regard to and consider Vero Insurance Ltd v Gombac Group Pty Ltd [2007] VSC 117 at paragraphs [18] to [20] (and Carlin Pty Ltd v MCTGF [1991] VCAT 1976) or what is said to be "the requisite three step process" and the statutory presumption involved in the Vero decision. Submissions concerning those matters had been made in argument to the Judicial Member and the contention is made in this appeal that "it is well established that her failure, whether through inadvertence or otherwise to consider a submission that was properly open and seriously advanced is, without more, relevantly an error law". Reference is made to Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276-277.

1. Paragraphs [18] to [20] of the Vero decision are as follows:

"[18] It can been seen that the general rule to apply in all proceedings is that 'each party is to bear their own costs in the proceeding.' Despite the general rule, the Tribunal may at any time order a party to pay costs to another party. The general rule expressed in s 109(1) must yield to a finding by the Tribunal pursuant to s 109(3). However, the Tribunal may not make an order unless it is 'satisfied that it is fair to do so', and in arriving at that decision the Tribunal is bound to have regard to a series of matters set out in s 109(3). Despite the fact that the various matters are listed, s 109(3) operates to extend the relevant matters if the Tribunal considers that some other matter is relevant. That is, the listed matters are not exhaustive.

[19] It follows that the general rule applies and the Tribunal may only make an order for costs if it is satisfied that it is fair to do so. That finding is an essential prerequisite to making an order for costs.

[20] In approaching the question of any application for costs pursuant to s 109 in any proceeding in VCAT, the Tribunal should approach the question on a step by step basis, as follows -

(i) The prima facie rule is that each party should bear their own costs of the proceeding.

(ii) The Tribunal may make an order awarding costs, being all or a specified part of costs, only if it is satisfied that it is fair to do so. That is a finding essential to making an order.

(iii) In determining whether it is fair to do so, that is, to award costs, the Tribunal must have regard to the matters stated in s 109(3). The Tribunal must have regard to the specified matters in determining the question, and by reason of para (e) the Tribunal may also take into account any other matter that it considers relevant to the question."

1. In the Dennis Willcox case at 276-277 Jenkinson J with whom Woodward and Foster JJ agreed said:

"But this submission ... was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing. ... In either event there has been, in my opinion, an error of law by the tribunal ..."

1. The Vero decision dealt with s 109 of the VCAT Act on which the new s88 of the ADT Act is based, as the Judicial Member recognised in the costs decision at [14] to [16]. The Vero decision and that of the Victorian Court of Appeal in Transport Accident Commission v O'Reilly [1999] 2 VR 436 dealing with the power to award costs of the predecessor of VCAT, the Administrative Appeals Tribunal of Victoria, were extensively referred to, with approval, in Port Stephens Council v Sansom (2007) 156 LGERA 125. The Port Stephens case dealt with the costs provisions in the legislation applicable to the Land & Environment Court ("the LEC"): s 69(2)(a) of the LEC Act providing that subject to the rules, costs are in the discretion of the Court and Pt 16 r 4(2) of the LEC Rules 1996 providing that:

"no order for the payment of costs will be made in proceedings to which this rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable."

In his judgment (with which each of the other four members comprising the Court of Appeal agreed) Spigelman CJ said at [48]:

" The starting point must be the presumptive rule that there will be no order as to costs. It is in that context that the power to make an order for costs is conferred in the broadest of terms ie what is 'fair and reasonable ... in the particular circumstances'. There is no restriction, other than rationality, on the scope of the considerations relevant to the formulation of that judgment. However, those considerations must be, in the opinion of the first instance judge, of sufficient weight to overcome the presumptive rule."

We will return to the Port Stephens decision later in this decision. We note another similar decision wherein judgment was given at the same time as the judgment in the Port Stephens decision: Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 71 NSWLR 230; that decision was different from the Port Stephens decision in that Pt 16 r4(2) of the LEC Rules did not apply to the LEC proceedings the subject of that decision.

1. With reference to the Dennis Willcox decision, we have already noted that in the costs decision at [14] to [19] the Judicial Member in our opinion posed the correct issue in relation to the construction and application of s88 of the ADT Act. We see no conflict between what the Judicial Member said there and the Vero decision. That the Judicial Member did not articulate an explicit consideration of the Vero decision and the submissions that CCSR made in relation to it (and in relation to Carlin Pty Ltd v MCTGF, a decision of a Deputy President of VCAT on costs in a general list matter), is not the point. The point is the issue, not the submission. In Industry Research and Development Board v Bridgestone Australia Ltd (2004) 136 FCR 47 at [30] the Full Court of the Federal Court said during consideration of the Dennis Willcox decision:

"Where the decision maker has properly identified the issues that it needs to resolve and has correctly resolved them, it makes no error law merely because it has misunderstood or even overlooked a particular submission of law that has been made to it."

In our opinion, the first Ground of Appeal has not been made out.

1. Before turning to the other Grounds of Appeal dealing with the application in the costs decision of s88 of the ADT Act, we will deal with a submission made not explicitly based on any Ground of Appeal (but we do note the seventh to tenth Grounds of Appeal) and perhaps as an over-arching submission, namely, that while in the principal decision the revocation of the CCSR decision in question was adverse to the Chief Commissioner:

"However, the issues considered and the reasoning process adopted by the Tribunal was multifaceted within inherent subtleties and nuances. The reality is, the actual decision was much more evenly balanced".

1. There is then proffered an analysis of several questions said to have been considered by the Tribunal with an assertion that of those two were decided in favour of Mr Kelly and Ms Seve and five were decided in favour of CCSR. Ms Seve would contest that analysis. We do not see any merit in this point. As is noted in Ritchie's Uniform Civil Procedure NSW at [42.1.15]:

"The general approach taken by the Courts is that it will ordinarily be appropriate to award the costs of proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed, unless the matters from which the party failed were either the clearly dominant issue in contest or were clearly separable from matters of which the party succeeded."

In our opinion, it could not be said on any analysis to have been the case here that the CCSR succeeded in the principal decision on matters which were "the clearly dominant issue in contest or were clearly separable from matters on which the party succeeded". Moreover, this Tribunal recently said in Perry Properties Pty Ltd v CCSR [2011] NSWADTAP 1 at [25]:

"The respondent argues that the appellant was not, in fact, 'successful', because the Appeal Panel decision merely referred the matter back for a re-determination without overturning the assessment. This is a fairly technical point; the person who 'won' the appeal, in the sense of achieving the aim of having the question of 'accommodation' revisited, was the appellant. The Appeal Panel is of the view that the appellant was indeed successful."

A similar situation obtains here.

1. There is another suggestion arising from CCSR's submissions which is appropriate to be dealt with at the outset, namely, that it should be decided in this appeal as a matter of principle how costs should be treated in first instance revenue cases in this Tribunal. Mr Young, on behalf of CCSR, submitted, perhaps, but not necessarily so, in supplementation of the submissions made in respect of the twelfth Ground of Appeal, to the effect that in the usual run of cases in this Tribunal, CCSR is successful but does not seek or is not given costs against unsuccessful, even meritless, applicants and that if this Appeal Panel were to uphold this appeal, there would be a risk of costs orders in the future against unsuccessful, particularly meritless, revenue payers. In this regard in particular, Mr Young drew our attention to Argus Industrial Group Holdings Ltd v CCSR [2010] NSWADT 136 at [30]:

"30 The starting point in this Tribunal as to costs is that as a general rule there should be no order as to costs and on the basis that each party should bear its own costs. It has long been an established rule in the Tribunal that a party is entitled to litigate a case which is weak without fear than an adverse decision will result in an order for costs against it. That general rule is not altered by the comparatively recent legislative amendments to section 88. Section 88(1A) spells out the types of (reprehensible) conduct which could give rise to a costs order. It is likely that costs will not be ordered in consequence of conduct falling within section 88(1A) unless that conduct is of a serious nature and such that there is significant prejudice to the other party in consequence."

The submissions go so far as to suggest that the costs decision is not only contrary to law (constituted, it is particularly said, by the Vero decision) but to the practice of this Tribunal. It is put that the practice of this Tribunal is as set out in the paragraph from the Argus Industrial decision above. We repeat, however, that we see the law as being constituted by the very language of s88, as commented upon in AT v Commissioner of Police at [33]. Any practice should always be consistent with the law. With respect to the Argus Industrial decision, we do not agree that it is appropriate to present the law and/or any practice on s88 by reference to other language such as is used there at [30]. We will discuss this issue more, later in this decision, in relation to the twelfth Ground of Appeal.

1. It is helpful at this point to refer in more detail further to the Port Stephens decision. In our opinion, this decision deals with a costs regime similar to that under the ADT Act. This was an appeal to the Court of Appeal with respect to an issue of costs from a judgment of the LEC pursuant to leave. Leave was granted to appeal on the basis that the judgment involved the resolution of differences between the reasoning in two earlier Court of Appeal decisions.

1. The Appellant Council had refused consent to a development application by the Respondent to use his land for the purpose of the storage of caravans and boats. The Council determined, inter alia, that the proposed development was a prohibited use. The Respondent appealed to the LEC from this refusal. The proceedings were in Class 1 of the jurisdiction of that Court which is relevantly divided into six Classes. Class 1 proceedings of this sort are referred to as planning appeals. The LEC answered the question as a separate issue in the proceedings by holding that the use of the land was prohibited and there was no appeal from that decision. In a subsequent decision, the Court determined that each party should pay its own costs of the hearing of the separate question and it was that decision that was in issue in the Court of Appeal.

1. A Report of the LEC Working Party in September 2001 ("the Cripps report") noted that with reference to s69(2) of the LEC Act which we have referred to above, that the LEC had issued a Practice Direction 1993:

"The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional."

The Cripps report recommended that a rule should be made reflecting that practice:

"Ordinarily in planning appeals each party would pay its own costs unless the Judge is of the opinion that it is fair and reasonable for one party to pay all or some of the costs of another party."

Part 16 rule 4 of the LEC Rules was amended to include sub-rule 2 which we have quoted above to give effect to that recommendation. See the Port Stephens decision at [15] to [27].

1. The two previous Court of Appeal decisions on the issue suggested two approaches: on the one hand, an approach that determination of a planning appeal on a question of legal capacity as opposed to a "merit review" determination did not itself require a particular result as to costs; and on the other hand, an approach that where a party raises a separate question whether the consent authority had power to consent to the application (that is, a legal capacity question) at least for the purpose of resolving the question of costs, the character of the litigation changes and assumes the character of conventional adversarial litigation such as to suggest that notwithstanding the usual approach, an order for costs may be appropriate. See the Port Stephens decision at [28] to [45].

1. Spigelman CJ indicated that the former approach was preferable. A significant part of his judgment where he discussed the applicable principles is at [52] to [54]:

"When Parliament confers such a broad discretion on a court it intends that the process of evaluation is in fact undertaken by the repository of the power. However, the intention of Parliament particularly when conferring such a power on a court, is to ensure that the power will be exercised judicially and consistently, so that the result does not depend on idiosyncratic views. Although a judicial officer exercising a merits review jurisdiction stands in the shoes of the primary decision-maker, s/he cannot behave in the same ways as an administrator. A court is required to manifest a high level of impartiality, independence and consistency in its decision-making.

The formulation of principles or guidelines for the exercise of such a discretion, or the formation of such an evaluative judgment, is permissible. As Mason CJ put it in the context of an award of costs, in Latoudis v Casey ((1990) 170 CLR 534) at 541:

'...[I]t does not follow that any attempt to formulate a principle or a guideline according to which the discretion should be exercised would constitute a fetter upon the discretion not intended by the legislature. Indeed, a refusal to formulate a principle or guideline can only lead to exercises of discretion which are seen to be inconsistent, a result which would not have been contemplated by the legislature with any degree of equanimity.'

However, it is not permissible to adopt a principle or guideline which is entitled to presumptive, let alone determinative, weight. The non-discouragement principle, save insofar as it underlies the basic rule in Pt 16 r 4, appears to me to such a guideline. So, in my opinion, is any proposition that the fact that what is involved is an issue of capacity is entitled to presumptive weight.

The adoption of either approach in a rigid way would constitute an impermissible restraint on the formation of the broadly based evaluative judgment for which the rule provides. Principles or guidelines for the process of formulating such a statutory judgment may be developed, particularly in order to promote consistency of decision-making, so long as those principles or guidelines are not treated as rules and accepted to be indicative only. ..."

1. The so-called "non-discouragement principle" there referred to in the passage just cited was an approach explained in Gee v Port Stephens Council (2003) 131 LGERA 397 at [241] (quoted in the Port Stephens decision at [36]):

"...the approach which the LEC had taken to the exercise of its discretion with respect to costs in Class 1 matters was that, being an administrative review of a council's decision, in the ordinary case a costs order would not be made in favour of the successful applicant. The purpose of the LEC in providing the Practice Direction was to ensure that all members of the public who may be contemplating an appeal against a decision to refuse their development application would not be in fear of the prospect that if they lost they would suffer an order to pay the costs of the consent authority in defending an appeal. The parties should know 'upfront' the general approach which the LEC would generally adopt."

1. Another significant part of the judgment of Spigelman CJ discussing the applicable principles is at [57] to [74] where extensive, and approving, reference is made to the Vero decision and the decision of Transport Accident Commission v O'Reilly.

1. We turn now to the other Grounds of Appeal. In the second Ground Appeal it is contended that the Judicial Member failed either properly or at all to take a relevant consideration into account, namely the presumption pursuant to s88(1) that each party is to bear their own costs. We have already quoted above what was said in the costs decision at [18]-[19] which included an express recitation of s88(1). In the costs decision then at [20]-[57] the Judicial Member went on to a detailed consideration of factors in s88(1A)(a)-(e) as had been canvassed before her. Next at [58]-[60] the Judicial Member expressed her conclusions in relation to what she termed a "weighing up of the factors". We do not see that the Judicial Member needed to include in that evaluation summary, by way of supplementation, another acknowledgment of s88(1) (already made at [18]-[19]) or an explicit confirmation that she had continued to bear that provision in mind. It seems to us clear from what appears in the costs decision that she would have given continued consideration to s88(1) and we reject a submission on behalf of CCSR, perhaps merely rhetorical, to the effect that the Judicial Member had simply noted s88(1) and then just "ticked some boxes" in s88(1A). We are satisfied that, to use the language of Spigelman CJ in the Port Stephens decision at [48] quoted above, the Tribunal assessed the factors to be "of sufficient weight to overcome the presumptive rule". The second Ground of Appeal fails.

1. The third, fourth and fifth Grounds of Appeal deal with the construction and application of s88(1)(a)(i) of the ADT Act by the Tribunal. The costs decision deals with this issue at [20] to [28]. Mr Kelly and Ms Seve complained that CCSR failed to comply with three orders or directions that the Tribunal without reasonable excuse such as to amount to conduct of the proceedings in a way that unnecessarily disadvantaged them. The first occasion related to a page which was missing from the documents provided under s58 of the ADT Act by CCSR to Mr Kelly and Ms Seve. The Judicial Member expressed the view that she was satisfied that that event did not unnecessarily disadvantage Mr Kelly and Ms Seve and did not consider it further. The other two occasions were described by the Judicial Member in the costs decision at [22] in accordance with particularisation of them by Mr Kelly and Ms Seve as follows:

"At the same directions hearing on 3 December 2008, the Tribunal directed the parties to file submissions by certain dates. The Applicants complied with the date set. The Respondent's submissions were not filed by 13 March 2009 (a Friday) as directed but instead were filed on 16 March 2009 (Monday) and served to the Applicants by facsimile at 4.50 pm the same day. The Respondent telephoned the Applicants on 13 March 2009 to advise the submissions would be late but no excuse was provided for the delay. This disadvantaged the Applicants in that Ms Seve, who had planned to begin work on the Applicants' submissions in reply on the weekend of 14/15 March 2009 to save on costs and reduce interference with other work and commitments the following week, instead had to make alternative arrangements.

At the hearing of the substantive matter, the Tribunal had made orders that further submissions were to be filed by certain dates. The Respondent did not file its submissions by the due date of 3 April 2009 (Friday) but instead filed its submissions on 7 April 2009 (Tuesday) and they were served on the same day at 6.09 pm. No explanation for the delay was offered by the Respondent. This disadvantaged the Applicants in that Ms Seve had planned to commence work on the Applicant's submissions on the weekend of the 4/5 April 2009 and she was unable to do this and had to make alternative arrangements."

1. The Judicial Member accepted those contentions of Mr Kelly and Ms Seve stating at [26] and [28]:

"26 Although the Respondent submits that the first set of submissions were only one working day late and the second set of submissions were only two working days late, they were late and the Applicant has indicated that she was disadvantaged because she was unable to use time on the weekend that she had set aside to consider the submissions and work on the Applicant's submissions in response and had to make alternative arrangements which impinged on other work requirements and resulted in additional costs.

...

In light of there being no excuse offered by the Respondent for the failure to meet the directions and that the Applicants were unnecessarily disadvantaged, but at the same time having regard to the fact that the delays were not substantial and that the Applicants did manage to still meet their own timetable for submissions, this factor tends to weigh slightly in favour of the Applicants."

1. The third Ground of Appeal questions whether the Tribunal erred in law in that:

"The Tribunal adopted the wrong legal test and erred in its construction that the requirement of "unnecessarily disadvantaged" in section 88(1)(a)(i) of the ADT Act 1997 was satisfied if the Respondent pointed to a subjective indication that she was disadvantaged?"

1. It was open to the Judicial Member to accept the position that had been placed before her by Ms Seve on behalf of herself and Mr Kelly in relation to the effect the delays had on them and clearly, the Judicial Member also assessed on the material placed before her that there was no reasonable excuse for the defaults.

1. The fourth Ground of Appeal questions whether the Tribunal erred in law in that:

"The Tribunal erred and should have construed section 88(1A)(a)(i) of the ADT Act 1997 by reference to the subject matter, scope, context, and purpose of the provision and accordingly any failing to comply with a direction of the Tribunal was limited to such failures as those which compromised, frustrated or delayed the proceedings?"

The submissions of CCSR add to the concepts of delay, frustration and compromise specified in this Ground of Appeal, reference to epithets used in the Argus Industrial decision such as "reprehensible" and "serious" and "significant prejudice". None of that language actually appears in s88(1A)(a)(i). The relevant concepts under that provision are "unnecessary disadvantage" and "absence of reasonable excuse" and the Tribunal addressed them in an appropriate way.

The fifth Ground of Appeal questions whether the Tribunal erred in law in that:

"In relation to the construction and application of section 88(1A)(a)(i) of the ADT Act 1997 the Tribunal erred in failing to take relevant considerations into account, namely,

(a) the proceedings before the Tribunal were completed without delay;

(b) The hearing was completed within four months of the first directions hearing;

(c) The hearing was set down for one day and completed in one day; and

(d) There were no adjournments sought by the Commissioner at any stage in relation to the proceedings?'

The factual matters referred to in that Ground of Appeal are taken from the findings made by the Judicial Member at [42] and [43] of the costs decision in relation to s88(1A)(b) of the ADT Act. We will comment on those in relation to the sixth Ground of Appeal. The Judicial Member there considered but did not accept a contention by Ms Seve on behalf of Mr Kelly and herself that the defaults by CCSR in relation to the submissions constituted unreasonable prolongation of the time taken to complete the proceedings.

1. Thus, our conclusion in relation to the third, fourth and fifth Grounds of Appeal is that none of them involves an error of law as alleged and they all fail.

1. The sixth Ground of Appeal questions whether the Tribunal erred in law in that:

"In relation to the construction and application of section 88(1A)(b) of the ADT Act 1997, the Tribunal having concluded there was no undue prolongation of the time taken to complete the proceedings by the presentation of untenable submissions (being the sole ground alleged and relied on by the Respondent), the Tribunal then erred, after it had already concluded section 88(1A)(b) of the ADT Act 1997 had no application and was thereby functus, in then subsequently taking irrelevant considerations into account in connection with section 88(1A)(b) of the ADT Act 1997, namely:

(a) the proceedings before the Tribunal were completed without delay;

(b) The hearing was completed within four months of the first directions hearing;

(c) The hearing was set down for one day and completed in one day; and

(d) There were no adjournments sought by the Commissioner at any stage in relation to the proceedings.

which considerations were properly relevant considerations and should have been taken into account, but were not, in the construction and application of section 88(1A)(a)(i) of the ADT Act 1997?"

A specific factual consideration relevant to a costs application might have a number of attributes and might arise under one or more of the paragraphs and sub-paragraphs of s88(1A). The important question is whether a factual consideration which is relied on and which arises under one or more of the paragraphs and sub-paragraphs is taken into account. This is part of the overall evaluation of the criterion of fairness. This situation is demonstrated by the consideration in the costs decision at [29] to [33] in particular, of a finding of untenability of submissions made by Mr Seve in the context of s88(1A)(b) and also at [44] to [47] of a finding of untenability of some submissions made by Ms Seve in the context of s88(1A)(c). There was a thorough assessment in the costs decision of all matters bearing on relevant fairness. In our opinion the sixth Ground of Appeal has not been made out.

1. The seventh, eighth, ninth and tenth Grounds of Appeal all relate to s88(1A)(c) and questions whether the Tribunal erred in law in that:

"7. In relation to the construction and application of section 88(1A)(c) of the ADT Act 1997 the Tribunal misunderstood and thereby misconstrued the effect of the decision of the Appeal Panel in Jonamill Pty Ltd v Alramon Pty Ltd (No.2) (RLD) [2010] NSWADTAP 3?

8. In relation to the construction and application of section 88(1A)(c) of the ADT Act 1997 and the decision of the Appeal Panel in Jonamill Pty Ltd v Alramon Pty Ltd (No.2) (RLD) [2010] NSWADTAP 3 at [47] the Tribunal erred in failing to take a relevant consideration into account, namely, the nature of the proceedings as being a review at first instance in the Revenue Division of the decision of the Chief Commissioner on objection?

9. In relation to the construction and application of section 88(1A)(c) of the ADT Act 1997 the Tribunal erred in concluding that the Respondent had a significantly stronger claim and there existed a disparity in strength regarding what the Tribunal called the construction point?

10. In relation to the construction and application of section 88(1A)(c) of the ADT Act 1997 and whether there was a material disparity in the strength of respective claims, the Tribunal erred in taking into account an irrelevant consideration namely its own tentative, provisional of 'preliminary view' as to the merits of a particular claim?"

1. The costs decision dealt with s88(1A)(c) at [44] to [53]. At [47] the costs decision quotes [42] to [44] of Jonamill Pty Ltd v Alramon Pty Ltd (No.2) (RLD) [2010] NSWADTAP 3. Those paragraphs in that decision were part of the Appeal Panel's expression of its conclusions as to submissions that had been made to it based on some VCAT decisions, and we repeat them:

"42 For two reasons, we believe that we should not treat these decisions as controlling the interpretation of section 88(1A)(c), for the purposes of these proceedings, to such an extent that this subparagraph should only be considered applicable if Jonamill's case in the appeal could properly be characterised as 'unarguable, unreasonable or untenable'.

43 The first reason is that to apply the subparagraph in this way is to ignore that part of its wording that refers to 'the relative strengths of the claims made by each of the parties'. The subparagraph refers to 'a claim that has no tenable basis in fact or law' only by way of exemplifying cases in which there is a very great disparity between these 'relative strengths'.

44 Secondly, to take this approach would involve ignoring the authorities (cited above at [26-30] establishing that under section 88 in its previous forms costs were more readily awarded when either (a) the case arose in the Retail Leases Division or (b) costs were being sought against an unsuccessful appellant. The present proceedings fall into both these categories."

1. CCSR's submissions cite part of [47] of the Jonamill decision where the Appeal Panel concluded:

"...Having regard to both the substantial disparity between the relative strengths of the parties' claims and 'the nature of the proceedings' (i.e., that it is an unsuccessful appeal from a decision in the Retail Leases Division), as is required of us by section 88(1A)(c) and (d), it is in all the circumstances 'fair' that the unsuccessful Appellant should pay the Respondent's costs."

1. At [48] and [50] of the costs decision the Judicial Member said:

"48 In the present case, clearly the reasoning in paragraph [44] is not relevant since the present case was heard in the Revenue Division and does not involve an appeal. However paragraph [43] is relevant and seems to suggest that a disparity in the relative strength of the parties claims but something less than a great disparity i.e. an "unarguable, unreasonable or untenable" claim, might still be considered under this sub-section for the purposes of awarding costs.

49 In the present case, the Applicants' claim in respect of the proper construction of s 65 was ultimately preferred by the Tribunal. This, of itself, would ordinarily be insufficient for an award of costs since costs do not "follow the event" in the Tribunal. However, in the present case, the Tribunal is also of the view that the Applicant had a significantly stronger claim in this regard for the reasons set out in the decision of the Tribunal in paragraphs 84-89 (in particular, the absence of any words in the "new" s 65A requiring the Chief Commissioner to form an opinion that a person's liability to land tax has been reduced or avoided). The Tribunal notes that in the way in which the parties (in particular, the Respondent) framed their cases before the Tribunal, the construction point was fundamental and occupied much of the time spent at the hearing and also in the written submissions of the parties.

50 The parties enjoyed mixed success in relation to the other issues that arose in relation to the proceedings which, in aggregate, occupied less overall time at the hearing and in the initial written submissions."

1. The Judicial Member then noted at [51] that the principal decision had found in favour of CCSR in respect of a number of issues relating to the exercise of the discretion on s65A and at [52] that it had found in favour of Mr Kelly and Ms Seve in relation to matters in addition to the construction issue. At [53] this conclusion was expressed:

"53 In respect therefore of the factor in s 88(1A)(c), in weighing up the relative strengths of the claims made by the parties but having regard to the importance of the construction point in the application for review and the disparity in strength of claim regarding this particular point, the Tribunal has come to the conclusion that this factor tends to weigh slightly in favour of the Applicant in respect of an award of costs."

1. The seventh Ground of Appeal asserts that the costs decision misunderstood and misconstrued the Jonamill decision. We discern that the misconstruction asserted is to be found in some alleged failure of the costs decision to use a concept of "substantial disparity" as referred to in Jonamill at [47]. The Judicial Member did not have to do that, in our opinion. She explained at [48] of the costs decision the disparity which she assessed, correctly in our view, in accordance with Jonamill at [44]. The fact that the Appeal Panel in Jonamill were able to find in the circumstances of that case a "substantial disparity" as referred to at [47] of that decision is not to the point and substantial disparity as such did not have to be found by the Judicial Member here. The seventh Ground of Appeal fails.

1. The eighth Ground of Appeal accuses the Tribunal in the costs decision of failing to take a relevant consideration into account, namely the nature of proceedings as being a review at first instance in the Revenue Division of the decision of CCSR on objection. There was no such failure. The first sentence of [48] of the costs decision explicitly takes that consideration into account.

1. In the ninth Ground of Appeal it is asserted that the Tribunal erred in law in concluding that the Respondent had a significantly stronger claim in relation to the proper construction of s65 of the LTMA. That is what the Judicial Member said in [49] of the costs decision, making reference to the original decision:

"However, in the present case, the Tribunal is also of the view that the Applicant had a significantly stronger claim in this regard for the reasons set out in the decision of the Tribunal at paragraphs 84-89..."

The principal decision is not under appeal and this conclusion made there and repeated the purposes of the costs decision cannot be challenged here. In our view the Judicial Member correctly took this into account. The ninth Ground of Appeal fails.

1. The tenth Ground of Appeal seems to be directed at something that is said in the costs decision at [52] in reference to matters in addition to the construction issue in relation to which the Tribunal had found in favour of Mr Kelly and Ms Seve in the principal decision:

"Based on the evidence before it of the particular features of the Lot 1 versus Lot 2 and the uncontradicted expert opinion as to an 8% difference in improved market value of the lots, the Tribunal reached a 'preliminary view' that the proportional unit entitlement was unfair or unreasonable (at [105]) but that ultimately the interests of the owners of Lot 2 would need to be taken into account before reaching a final view that the proportional unit entitlement of Lot 1 is unfair or unreasonable."

In the context which there appears, particularly with reference back to the unchallenged principal decision, no valid criticism can be made of such a "preliminary view". The tenth Ground of Appeal fails.

1. The eleventh Ground of Appeal questions whether the Tribunal erred in law in that:

"11. In the exercise of the discretion to award costs the Tribunal erred in its conclusion that the existence of two factors, which factors individually 'only tend to weigh slightly in favour' of the Respondent had the consequence that collectively those factors warranted the making of a costs order."

The fact that the Judicial Member found it appropriate to act in relation to costs on only two factors which weighed "slightly in favour" of Mr Kelly and Ms Seve, does not constitute in our opinion an appellable error. The costs decision presents, in our opinion, as a thorough and conscientious evaluative exercise by the Tribunal directed to relevant fairness under s88 of the ADT Act. What we have said in relation to the second and sixth Grounds of Appeal is also relevant to this. We add that the Tribunal afforded the evaluation process a second step by limiting the extent of the costs awarded to one half. The eleventh Ground of Appeal has not been made out.

1. The twelfth Ground of Appeal questions whether the Tribunal erred in law in that:

"In making an award of costs the Tribunal has exercised its discretion in a manner that is so unreasonable that no reasonable Tribunal could possibly have so exercised the discretion?"

This contention invokes considerations of rationality or the so-called "Wednesbury principle" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). This principle has been spoken of in various cases, for example cited in Forbes, Justice in Tribunals 3 rd ed at [6.33], in terms such as a decision being void if it is "so unreasonable that no reasonable person could have reached it", "manifestly unreasonable", "illogical...or lacking a basis in finding or inferences of fact supported on logical grounds", or if "looked at objectively [it is] so devoid of any plausible justification that no reasonable body of persons could have reached it". Among the language used in the Wednesbury decision itself by Lord Greene M.R. is the comment at 230: "to prove a case of that kind would require something overwhelming...". Having regard to the opinions we have expressed above in relation to the other Grounds of Appeal it would be sufficient to deal with this submission by using again words of Lord Greene M.R. in the Wednesbury decision at 230: "...the facts do not come anywhere near anything of that kind". Nevertheless submissions made to us on behalf of CCSR in respect of this ground take the matter a little further, thus:

"64. In this case the demonstrable unreasonableness of the costs decision can be demonstrated by a consideration of its consequence and precedent implications.

65. That is to say, should costs be awarded in the manner of this costs decision, in the vast majority of cases where the Chief Commissioner is the successful party and the arguments of the taxpayer are somewhat weaker than those of the Chief Commissioner and the taxpayers have missed a direction timeline by a mere matter of days, then the taxpayers would be responsible for the Chief Commissioner's costs.

66. In other words, the converse factual case will overwhelmingly favour the Commissioner. Should costs be awarded where the factors "slightly favour" the Chief Commissioner? When the question is posed in the converse manner, objectively viewed, the conclusion is reasonably open that this Tribunal has erred and that the costs decision (even on the limited basis so ordered) is manifestly unreasonable in the Wednesbury sense."

1. Those submissions call for some comment. What we have said above in relation to the Argus Industrial decision is relevant. Each case has to be decided on its own facts in accordance with the language of s88 as commented on in AT v Commissioner of Police at [33]. There can be no suggestion, in our opinion, of any precedent arising just from the outcomes in the costs decision and this appeal decision. In particular, it would be wrong to view these decisions as in some way impinging on any guiding practice within the Revenue Division of this Tribunal. As Spigleman CJ said in Port Stephens Council v Sansom at [53]-[54], as we have quoted more fully above:

"The formulation of principles or guidelines for the exercise of such a discretion or the formation of such an evaluative judgment, is permissible...However, it is not permissible to adopt a principle or guideline which is entitled to presumptive, let alone determinative, weight."

Another factor that may in a particular case become relevant in this context is the "Model Litigant Policy" to which Ms Seve has made significant reference in her submissions to us. This has been discussed, for example, in the Court of Appeal in Mahenthirarasa v SRA (No.2) (2008) 72 NSWLR 273 and as we have mentioned, AT v Commissioner of Police, and in this Tribunal, in particular in B & L Linings Pty Ltd v CCSR (No.5) (RD) [2010] NSWADTAP 21. This was not a dominant, if any, consideration in the costs decision and we note it but do not see the need now to deal with it further.

1. The twelfth Ground of Appeal fails.

1. As we have noted above, in one of the interlocutory decisions in this appeal, ([2010] NSWADTAP 80) the application by CCSR for leave to extend the appeal to a review of the merits, was stood over to the hearing of the appeal itself. CCSR's application is that the Appeal Panel should have power to decide itself the issue in the costs decision and should in the circumstances decide the costs issue itself rather than remitting the matter to the same or a differently constituted Tribunal. That submission is premised on success by CCSR in this appeal and such success has not eventuated. To any extent that this application is extant, it should be dismissed.

1. Ms Seve seeks Mr Kelly's costs of the appeal. Having regard to the nature of the appeal and the loss of the appeal by CCSR on all grounds, we assess it as fair that Mr Kelly have those costs. Those costs should not, in our opinion, include the costs associated with the two interlocutory decisions in this appeal. The first of those ultimately involved applications by each of CCSR and Mr Kelly and Ms Seve, each of which was lost and the second one involved the application for leave to extend the appeal to a review of the merits and this was deferred to the hearing of the appeal. Both applications were dealt with on the papers. While the application to extend the appeal to a review of the merits did not ultimately succeed we do not see that application having had any significant separate costs component. In our opinion each of the parties should bear their own costs in relation to those applications.

Orders

1.Dismiss the application for leave to extend the appeal to a review of the merits.

2.Dismiss the appeal.

3.Order the Appellant to pay the First Respondent's costs of the appeal (not including any costs in respect of the interlocutory applications, the subject of decisions [2010] NSWADTAP 79 and [2010] NSWADTAP 80) as agreed or as assessed on a party and party basis.

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Decision last updated: 24 March 2011