CITATION: CROOK v CONSUMER, TRADER & TENANCY TRIBUNAL OF NSW & ANOR [NO 2] [2004] NSWCA 14 HEARING DATE(S): 9 December 2003 JUDGMENT DATE:
12 February 2004JUDGMENT OF: Mason P; Sheller JA; Ipp JA DECISION: Orders proposed on 18 December 2003 to stand. CATCHWORDS: COSTS - litigant in person LEGISLATION CITED: Legal Profession Act 1987
Supreme Court RulesCASES CITED: Cachia v Haynes & Anor (1994) 179 CLR 403 PARTIES :
David Crook - Appellant/Claimant
Consumer, Trader & Tenancy Tribunal of New South Wales - First Respsondent/First Opponent
NSW Department of Housing - Second Respondent/Second OpponentFILE NUMBER(S): CA 40977/03 COUNSEL: In person - Appellant/Claimant
Submitting appearance - First Respondent/First Opponent
A Jungwirth - Second Respondent/Second OpponentSOLICITORS: I V Knight, Crown Solicitor - First Respondent/First Opponent
M Callen - Second Respondent/Second Opponent
LOWER COURTJURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 30003/03 LOWER COURT
JUDICIAL OFFICER :Master Malpass
CA 40977/03
SC 30003/03Monday, 16 February 2004MASON P
SHELLER JA
IPP JA
1 THE COURT: The Court delivered judgment on this application granting the claimant leave to appeal and allowing the appeal with consequential orders which included an order that the second opponent pay the claimant’s costs of the hearing before the Master and of the application for leave to appeal and of the appeal to this Court.
2 When the orders of the Court were pronounced, counsel for the second opponent asked the Court to re-visit the costs orders having regard to the decision of the High Court in Cachia v Haynes & Anor (1994) 179 CLR 403. In that case the High Court held that upon taxation of costs awarded in favour of an appellant who had appeared for himself in the proceedings, the costs to be taxed on a party and party basis (see now Pt 52A r32 of the Supreme Court Rules) do not include compensation for the loss of time of a litigant in person. That is not to say that there may not be out of pocket or other expenses which the successful appellant would be entitled to recover on assessment under Pt 11 Div 6 of the Legal Profession Act 1987. Accordingly, the order proposed by the Court is appropriate and should stand.
Last Modified: 02/13/2004
- AGLC
- Crook v Consumer, Trader and Tenancy Tribunal of NSW [No 2] [2004] NSWCA 14
- Case
- [2004] NSWCA 14
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the Tribunal had erred in law by refusing to award costs to Crook, despite finding that the respondent had acted unreasonably in the conduct of the proceedings. Specifically, the Court had to consider the principles governing the award of costs to litigants in person, particularly where unreasonable conduct by the opposing party is established.
The Court of Appeal found that the Tribunal had misconstrued the relevant legislative provisions and the principles of administrative law concerning costs. It held that a litigant in person is not automatically disentitled to costs, and that where a party has acted unreasonably, an award of costs may be appropriate to compensate for the additional expense and effort incurred by the other party. The Court emphasised that the purpose of costs is to indemnify a successful party against the expense of litigation, and that this principle applies even to litigants in person in appropriate circumstances.
The Court of Appeal ordered that the orders proposed on 18 December 2003 should stand, indicating that the decision of the Tribunal was set aside and that the matter would be remitted for redetermination of the costs order.
Orders
Orders of the court
Orders proposed on 18 December 2003 to stand.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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