FPD v Commissioner of Victims Rights (No 2)

[2023] NSWCATAD 74

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FPD v Commissioner of Victims Rights (No 2) [2023] NSWCATAD 74

Hearing dates:

On the papers

Date of orders:

24 March 2023

Decision date:

24 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1. I dispense with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. The application for costs is dismissed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – application for costs – no power to make an order for costs where the Tribunal makes an administrative review decision for the purposes of the Victims Rights and Support Act 2013.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

FPD v Commissioner of Victims' Rights [2023] NSWCATAD 54

Texts Cited:

None

Category:

Costs

Parties:

FPD (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Victims Services (Respondent)

File Number(s):

2022/00333516

Publication restriction:

None

REASONS FOR DECISION

Background

1. On 13 March 2023, the Tribunal published its decision in the matter of FPD v Commissioner of Victims Rights [2023] NSWCATAD 54. The decision was made in relation to FPD’s application for administrative review of the respondent’s decision dated 7 October 2022, that he was not a primary victim of an act of violence, and that he was therefore not eligible for a recognition payment under the Victims Rights and Support Act 2013 (NSW) (the Act).

2. The Tribunal determined that the correct and preferable decision was to set aside the respondent’s decision dated 7 October 2022 and to make the following decision by way of substitution:

1. FPD was the primary victim of an act of violence as defined by ss 19 and 20 of the Act on the balance of probabilities; and

2. FPD is eligible for a category D recognition payment in the sum of $1,500.

3. On 14 March 2023, FPD sent an email to the Tribunal in which he applied for an order for payment of disbursements totalling $849, comprising:

1. NCAT filing fee - $28

2. Costs relating to the issue of Summons to Give Evidence to three witnesses - $441

3. Commercial agent’s fees for service of Summons on one witness - $130

4. Conduct money to NSW Police - $104

5. Wages paid to the third witness - $280

6. Thumb drive to copy short video and pictures of the location of the assault - $15

7. Feed paid for IT to copy short video and pictures of the location of the assault to the thumb drive - $25

8. Urgent printing and scanning of documents done by “a local legal practitioner - $100 still owing.

4. However, FPD did not identify any provisions of the Act or of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that entitle him to the payment of costs in relation to the application for administrative review.

5. The respondent disputed the application for costs. In an email dated 20 March 2023, the respondent stated, relevantly:

…The Tribunal may not award costs in administrative review proceedings for the purpose of the Victims Rights and Support Act 2013 – see Schedule 3, clause 13 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). Further the definition of costs in section 60 of the NCAT act includes the costs of, or incidental to, proceedings in the Tribunal.

As the above matter was an administrative review pursuant to section 51 of the Victims Rights and Support Act 2013, costs/disbursements cannot be awarded.

Consideration

6. The basis of the applicant’s costs application is not clearly stated in his application dated 14 March 2023. However, the application is opposed by the respondent.

7. Section 50 of the NCAT Act provides, relevantly:

50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except—

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

8. I am satisfied that the issue for determination, namely whether FPD is entitled to an order for costs (including disbursements) can be adequately determined in the absence of the parties, based upon the documentation lodged with the Tribunal.

9. The Tribunal is bound by the following provisions of the NCAT Act:

1. Section 60, which provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

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

(4) If costs are to be awarded by the Tribunal, the Tribunal may—

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5) In this section—

costs includes—

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

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

2. Schedule 3, cl 13, which provides, relevantly:

13 Costs not to be awarded for certain proceedings

Despite section 60 of this Act, the Tribunal may not award costs in proceedings for any of the following Division decisions—

…

(c) an administrative review decision for the purposes of the Victims Rights and Support Act 2013.

10. Pursuant to s 60, each party to Tribunal proceedings is to pay their own costs of the proceedings, unless the Tribunal is satisfied that there are special circumstances that warrant an order for costs: s 60(2). The special circumstances that may be considered are set out in s 60(3) and s 60(5) provides that “costs” includes the costs of, or incidental to, proceedings in the Tribunal.

11. However, as the Tribunal conducted an administrative review and made an administrative review decision for the purposes of the Act, cl 13 of Sch 3 of the NCAT specifically applies and precludes it from making an order for costs (including disbursements).

12. Accordingly, the Tribunal has no power to make an order for the payment of the disbursements that the applicant now claims.

Conclusion

13. I make the following orders:

1. I dispense with a hearing pursuant to s 50(2) of the NCAT Act.

2. The application for costs is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 March 2023