Gofur v Ministry of Transport
[2010] NSWADT 197
•30 July 2010
NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL
CITATION:
Gofur v Ministry of Transport [2010] NSWADT 197
DIVISION:
GENERAL DIVISION
PARTIES:
APPLICANT
Mohammad Abdul Gofur
RESPONDENT
Ministry of Transport
FILE NUMBERS:
093218
HEARING DATES:
On the papers
SUBMISSIONS CLOSED:
16 April 2010
DATE OF DECISION:
30 July 2010
BEFORE:
Montgomery S - Judicial Member
LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990
CASES CITED:
Argus Industrial Group Holdings Ltd v Chief Commissioner of State Revenue [2010] NSWADT 136
AT v Commissioner of Police [2010] NSWCA 131
Baulderstone Hornibrook Engineering Co Pty Ltd v Gordon Runoff Ltd (No 2)[2009] NSWCA 12
Challita v NSW Department of Education and Training [2009] NSWADT 116
Salon Today Pty Limited v. M.M.I.R. Pty Limited [2009] NSWADT 71
TEXTS CITED:
APPLICATION:
Costs
MATTER FOR DECISION:
REPRESENTATION:
APPLICANT
In person
RESPONDENT
A Wozniak, solicitor
ORDERS:
The Applicant is to pay the Respondent’s costs of the proceedings from 2 September 2009 up to and including 10 February 2010, as agreed or assessed.
Reasons for Decision:
REASONS FOR DECISION
In August 2009 the Applicant applied to the Tribunal seeking external review of a decision under the Passenger Transport Act 1990 in which the Respondent determined to cancel the Applicant’s taxi-cab accreditation.
The matter came before me on 20 August 2009 for hearing in relation to an application for a stay of the determination. Directions were made and the matter was set down for hearing of the substantive matter on 19 October 2009. The stay was granted until 31 August 2009 and the matter of the stay was listed for further hearing on that date.
On 31 August 2009 the matter was adjourned to 2 September 2009 and the hearing date of 19 October 2009 was vacated. The matter was instead listed for hearing of the substantive matter on 26 October 2009.
A further stay application was made on 2 September 2009. The stay was extended until close of business on 3 September 2009. The matter of the stay was again listed on 7 September 2009 and the Applicant sought a further extension. That request was refused.
The Applicant did not attend at the hearing of the matter on 26 October 2009. When contacted he indicated that he had been injured and that he was going to obtain a medical certificate to explain his absence. No such certificate was ever provided to the Tribunal. Directions were made that the Applicant file any material on which he proposed to rely by the end of December 2009 and the matter was listed for hearing on 10 February 2010.
The Applicant did not attend at the hearing of the matter on 10 February 2010. When contacted he indicated that he had a toothache and was going to see his doctor and that a medical certificate would be supplied. No such certificate was ever provided to the Tribunal. Mr Wozniak, the solicitor for the Respondent, applied for an order that the Applicant pay the Respondent’s costs. The question of costs was reserved.
On 10 February 2010 the Applicant also indicated that he had spoken with his barrister, Mr Mayell, "yesterday" and "saw him a few weeks ago". The matter was again rescheduled with 4 March 2010 allocated as the new hearing date. The Direction was made that the Applicant was to file and serve any material on which he proposed to rely by 26 February 2010.
The Applicant did not attend at the hearing of the matter on 4 March 2010. The Applicant had not filed any material and the hearing could not proceed. On that occasion I dismissed the application for want of prosecution. When contacted the Applicant again indicated that Mr Mayell was his barrister. However Mr Mayell was deceased, having died some time prior to that date.
Mr Wozniak applied for an order that the Applicant pay the Respondent’s costs pursuant to section 88 of the Administrative Decisions Tribunal Act 1997. Directions were made that the parties file and serve any material on which they proposed to rely in regard to the application for costs. The Respondent filed written submissions in compliance with the timetable that was set. The Applicant did not file any further material.
Applicable legislation
Section 88 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) governs costs in this case. The usual courts rule of costs following the event is modified by section 88 in favour of a rule that the parties usually meet their own costs, unless one of the exceptions in section 88 applies. Section 88 provides:
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 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.
The Respondent’s case
Mr Wozniak submits that because of the conduct of the Applicant in relation to these proceedings, the usual approach that each party should pay their own costs should not apply. Mr Wozniak asserts that the Applicant conducted the proceedings in a way that unnecessarily disadvantaged the Respondent. In particular he asserts that the Applicant has failed without reasonable excuse to comply with an order or direction of the Tribunal to file material (see section 88(1A)(a)(i)); sought adjournments as a result of that failure (see section 88(1A)(a)(iii)); failed to appear for the hearings of the matter and, on each occasion, relied upon a medical excuse that was not supported by a medical certificate (see section 88(1A)(a)(iv)); and attempted to deceive the Respondent or the Tribunal by asserting that he had had discussions with his barrister, when his barrister was deceased (see section 88(1A)(a)(v)).
Mr Wozniak asserts that as a result of being involved in another matter with Mr Mayell, he became aware that Mr Mayell had died approximately a week earlier than the time at which that the Applicant had claimed to have spoken with him. He submits that the Applicant could not have possibly spoken with Mr Mayell at all, as he alleged, and that the Applicant had tried to mislead the Tribunal by indicating that he had done so.
Mr Wozniak submits that, as a result of the conduct of the Applicant, the matter could not proceed on 26 October 2009, 10 February 2010 or 4 March 2010 and that the Applicant should pay the Respondent’s costs in relation to those days. Further, Mr Wozniak submits that costs should also be awarded for the additional occasions on which the matter was relisted to allow the Applicant to seek further stays. Mr Wozniak provided a Schedule of Costs in relation to this application.
The Applicant’s Case
As noted above, the Applicant did not file any material in regard to the Respondent’s application for costs.
Consideration
The provisions of section 88 of the ADT Act have been considered in numerous cases. The starting point in this Tribunal as to costs is that, as a general rule, with limited exceptions, each party should bear its own costs. The Tribunal may award costs only if "it is satisfied that it is fair to do so". 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: Argus Industrial Group Holdings Ltd v Chief Commissioner of State Revenue [2010] NSWADT 136 at paragraph [30].
An application for costs must be founded on the party's conduct in the proceedings currently before the Tribunal: Challita v NSW Department of Education and Training [2009] NSWADT 116. In this matter, Mr Wozniak relies on conduct of the Applicant, which he asserts has unnecessarily disadvantaged the Respondent.
Although an order varying the general rule may be made “only if” the relevant criterion in within section 88 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: AT v Commissioner of Police [2010] NSWCA 131 per Basten JA.
In Salon Today Pty Limited v. M.M.I.R. Pty Limited [2009] NSWADT 71 Judicial Member Molloy stated at paragraph [77]:
77 But the real key to understanding the Section 88 amendments is section 88(1A)(e): “any other matter that the Tribunal considers relevant”. These are very, very wide words, quite deliberately chosen by the Parliament, which quite clearly enjoin this Tribunal to look very carefully at the concept/principle of fairness and to widen the scope, without restriction, of the various aspects of the litigation – indeed, all the aspects of the litigation – that may result in a finding that the Tribunal is satisfied that it is fair to award costs. In my opinion it would be wrong to attempt to restrict section 88(1A)(e).
Parties to litigation are expected to act reasonably in the running of litigation: Baulderstone Hornibrook Engineering Co Pty Ltd v Gordon Runoff Ltd (No 2)[2009] NSWCA 12 per Allsop P at paragraph [18]. In my view, the conduct to which Mr Wozniak has referred clearly shows that the Applicant has not met this expectation. The conduct is of a serious nature and caused significant prejudice to the Respondent.
In light of the Applicant’s conduct, I am satisfied that it is fair to award costs. However, I do not agree that fairness requires that the Applicant pay the total of the Respondent’s costs as sought.
The Respondent has not asserted that the Applicant had no tenable basis for bringing the application. Nor is it asserted that the Applicant had not acted in good faith in bringing the application. Under those circumstances, the usual process would have required that the Respondent attend a Directions Hearing or a Stay Hearing, file material in answer to the application and attend a hearing of the substantive matter. The particular circumstances of this matter warranted an additional Stay Hearing. However I am satisfied that the Applicant’s failure to prosecute his case was responsible for the additional events from 2 September 2009 up to and including 10 February 2010. In my view, the Applicant should pay the Respondent’s costs thrown away for each of those events, however the Applicant should have the opportunity to have those costs assessed.
Order
1. The Applicant is to pay the Respondent’s costs of the proceedings from 2 September 2009 up to and including 10 February 2010, as agreed or assessed.
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