Jadk Builders Pty Ltd ACN 602 692 080 v Kumar & Anor (Appeal) - [2024] ACAT 88

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JADK BUILDERS PTY LTD ACN 602 692 080 v KUMAR & ANOR (Appeal) [2024] ACAT 88

AA 24/2024 (XD 383/2023)

Catchwords: APPEAL – civil dispute – costs – section 48 of the ACT Civil and Administrative Tribunal Act 2008 – meaning of “fee” in section 48(2)(a)(ii) – “fee” means any disbursement incurred, but does not include professional fees charged by legal practitioners
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 48, 49
Court Procedures Act 2004
Legal Profession Act 2006 ss 16, 44, 84
Legislation Act 2001 ss 6, 132, 137(3), 139, 140, 141, 142(1)

Subordinate

Legislation cited: Court Procedures Rules 2006

Cases cited:Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Bhara & Anor v De Costa & Anor [2024] ACAT 62
Burton & Anor v Rojas Constructions Pty Ltd [2018] ACAT 117
CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd And ACT Civil And Administrative Tribunal [2013] ACTSC 96
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
Dunne Trading As Act Gutter Service & Anor v Lengyel & Anor [2024] ACAT 57
Federal Commissioner of Taxation v Jayasinghe [2016] FCAFC 79
Marshall v Frank Ugolini and Judy Burai Trading As Bubs N Grubs [2016] ACAT 82
Nathanson v Minister for Home Affairs [2022] HCA 26
Pye v Registrar, Domestic Animals Act 2000 [2023] ACTSC 247
R v A2 [2019] HCA 35
Swan & Anor v Residential Reports Pty LimitedACN 609 880 122 [2021] ACAT 7
The Owners–Units Plan No 1475 v Davidson & Anor [2022] ACAT 10
Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123

Tribunal:Acting Presidential Member G Curtin SC

Date of Orders:  25 November 2024
Date of Reasons for Decision:      25 November 2024
Date of Publication:  2 December 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 24/2024

BETWEEN:

JADK BUILDERS PTY LTD ACN 602 692 080
Appellant

AND:

ANISH KUMAR
First Respondent

SAKSHI JOLLY
Second Respondent

APPEAL TRIBUNAL: Acting Presidential Member G Curtin SC
DATE:25 November 2024

ORDER

The Tribunal orders that:

The appeal is dismissed.
………………………………..

Acting Presidential Member G Curtin SC

REASONS FOR DECISION

Introduction

The central question in this appeal is the proper construction of section 48(2)(a)(ii) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) and specifically whether the costs of an expert report falls within the meaning of the word “fee” in section 48(2)(a)(ii).

Background

The parties entered into a written ACT Home Building Contract dated June 2021 for the appellant (the Builder) to build a residential dwelling for the respondents (the Homeowners).
Disputes arose between the parties, and the Homeowners commenced proceedings in the Tribunal against the Builder.
The Homeowners claimed $14,997.10, comprised of various amounts which they said they were overcharged and various costs associated with the dispute. They also sought orders for rectification of several alleged defects in the building, incomplete work, and work not carried out in accordance with the approved plans and specifications. The Builder counter-claimed for $16,845.70 for additional payments claimed to be owing.
The proceedings at first instance were heard by the Original Tribunal on 23 August 2023 (when both parties were legally represented) and 8 April 2024 (when neither party was legally represented).
During the hearing, the parties reached agreement in relation to some of the rectification works, the Builder abandoned its claim, and the Homeowners abandoned some of their claims.
In pursuing their claims, the Homeowners relied on two expert reports: one from My Canberra Building Inspections and another from Peak Consulting.
After hearing the evidence, the Original Tribunal reserved its decision on the unresolved parts of the Homeowners’ claim.
Oral reasons for decision were given on 26 April 2024 in the presence of the parties (appearing remotely).
The Original Tribunal found in favour of the Homeowners on the majority of their claims and made Orders dated 26 April 2024. The oral reasons also dealt with certain costs issues.
Prior to the delivery of the oral reasons, the Homeowners had informed the Original Tribunal that they desired to claim “legal costs” (totalling $2,050). In its oral reasons, the Original Tribunal rejected that claim on the basis that legal costs did not fall within any of the circumstances described in section 48 of the ACAT Act. There was no appeal from the rejection of that claim.
The Homeowners had also notified the Original Tribunal that they desired to claim the costs of the My Canberra Building Inspections report. The Original Tribunal rejected that claim. The Original Tribunal’s oral reasons for that rejection were:
I didn’t allow the report from My Canberra Building Inspections, and sometimes those reports are allowed and sometimes not. Mainly because it wasn’t a defect report, as such. It was useful evidence, but it wasn’t a defect report, as such. No claim was made in regard to the Peak Consulting, so that didn’t arise.
I take the first sentence of that quote to be a reference to the fact that, sometimes in the Tribunal, the costs of expert evidence are held to be damages awardable for a breach of contract, but otherwise there is a view in some sections of the Tribunal that the costs of expert evidence are not awardable under section 48(2)(a)(ii) of the ACAT Act. I shall return to that issue below.
The last sentence of the quote above referred to the costs of the Peak Consulting report (dated 6 October 2023). After that sentence was uttered, Mr Kumar, in substance, made an oral claim for the costs of that report. He said:
Sorry, ma’am, can I interrupt you, because the George [sic] Peak Consulting report should be admissible, because it was ordered by - requested by the [Builder] on the first hearing, that we bring the quotation and the court has ordered us to submit the report, so that’s what we did. So therefore this - because we should not be, you know, bearing those charges, because we have - it was on the request for the [Builder].
The Original Tribunal then said that it was arguable that the costs of the Peak Consulting report was a cost of the proceedings because it was ordered to be produced by the Original Tribunal.
There followed some discussion about the production of an invoice from Peak Consulting to support the claim for costs. Eventually, two invoices were emailed to the Tribunal and then to the Builder’s representative during the course of the further delivering of the Original Tribunal’s oral reasons. One invoice was for a site inspection, and the other for the preparation of the report. The two invoices totalled $6,022 and were treated as the costs incurred for the report used in evidence.
In the subsequent reasons given by the Original Tribunal on the substantive matters, the Original Tribunal expressly referred to its acceptance of certain evidence provided in the Peak Consulting report and in the report from My Canberra Building Inspections.
After reasons on the substantive matters had been given, the Original Tribunal returned to the question of the costs of the Peak Consulting report.
The Original Tribunal said it had a discretion to award the costs of the report (although it did not expressly identify the source of that discretion) and said that one matter the Original Tribunal could take into account in the exercise of that discretion was the fact that it was “a report that the [T]ribunal has asked a party to provide”.
The Original Tribunal then gave oral reasons for allowing the costs of the Peak Consulting report, but not the My Canberra Building Inspections Report. The Original Tribunal said:
The question is should I allow it or should I not. As I say, it's entirely discretionary. It's something that I might allow, particularly in this case where I've ordered that it be provided. …
…
… But, as I said, it is a discretionary thing. It is the sort of thing that I might order, given that there was a - so, look, I am going to add in six thousand - it is a huge amount, I understand that, and this is very costly, but it was a cost that was necessary. It was necessary.
…
… So I'm going to allow that, but not allow the other one. So only one. You only need one, and that was the only one that was ordered.
I take from those oral reasons that the Original Tribunal considered that it had the power to order the Builder to pay the costs of experts’ reports used in the Homeowners’ case, and exercised the discretion in favour of the Homeowners in relation to the Peak Consulting report, on the basis that the Peak Consulting report was necessary (necessary, I infer, for the prosecution of the Homeowners’ case) and that the Original Tribunal had ordered the Peak Consulting report to be produced. As I read the transcript of the oral reasons, the Original Tribunal rejected the claim for the costs of the My Canberra Building Inspections report on the basis that only one expert report was necessary for the Homeowners’ case.
I also infer that the Original Tribunal awarded the costs of the expert report pursuant to section 48(2)(a)(ii) of the ACAT Act.

The grounds of appeal

Four grounds of appeal were set out in the Application for Appeal, but only two were pressed. Both grounds of appeal that were pressed concerned the Tribunal’s awarding of $6,022 for the costs of the Peak Consulting report.
The first ground raised issues of procedural fairness. The Builder contended that the making of the claim for that cost was made very late, the invoices were only served during the delivery of oral reasons, and it had not had a proper opportunity to respond to that claim.
The second ground was that the costs of an expert report did not fall within the meaning of the word “fee” in section 48(2)(a)(ii) of the ACAT Act.
A third matter arises from the statements made by the Original Tribunal and Mr Kumar as quoted above, to the effect that the Original Tribunal had ordered the Peak Consulting report to be obtained.
An examination of the Tribunal file reveals that there was no order made by the Original Tribunal ordering the Homeowners to obtain and produce any report. Rather, the only orders touching on expert reports were orders directing the parties to file and serve any expert reports they intended to rely on at the hearing, and to arrange the attendance of witnesses whose evidence they intended to rely on at the hearing.
I will deal with each ground of appeal, and the third matter, in turn.

Ground 1 – procedural fairness

There is no doubt that the Builder was to be accorded procedural fairness, as per section 7(b) of the ACAT Act.
The Builder contended that, because of the late notice of the claim and the late service of the invoices, it was denied the opportunity to seek legal advice, have legal representatives appear and make submissions against the awarding of the Peak Consulting costs, and could have put together an argument that the Peak Consulting report was not necessary.
It is true to say that the claim was made late, as was the service of the invoices, but I do not see that that resulted in any procedural unfairness to the builder.
The transcript of the oral reasons does not disclose any objection to the claim being made because of the inability to obtain legal advice or have legal representatives appear, and the Builder had the opportunity to argue whether the report was necessary or not.
Further, even if the Builder had been denied an opportunity to properly present its case against the awarding of the costs of this report, no practical injustice has been shown.
That is, when a denial of procedural fairness has been established, an appellate body may nevertheless dismiss an appeal if satisfied that there was no realistic possibility of a different outcome had the procedural fairness not occurred.[1] Or, put another way, if the Builder established that it was denied the possibility of a successful outcome, the Homeowners would need to persuade me that a properly conducted trial could not possibly have produced a different result. As was said in Pye at [98]:
In other words, and with respect as more succinctly put in Stead, all that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it is necessary for the respondent to establish that a properly conducted trial could not possibly have produced a different result.
[1] Pye v Registrar, Domestic Animals Act 2000 [2023] ACTSC 247 at [87]-[98]
The Builder was not required to articulate a speciﬁc course of action which could realistically have changed the result (although it in fact did in this case), and, as was said by Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs [2022] HCA 26 at [33]:
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.
I note that the Builder was not denied the opportunity to make submissions when the oral claim for costs were made, and no submission was made that there was evidence that the Builder was denied the opportunity to present.
Be that as it may, it is the next consideration which causes the Builder difficulty in this appeal.
There was no evidence before me as to what that legal advice would probably have been, and what, if any, submissions may subsequently have been advanced on behalf of the Builder other than the matters which I will address below, namely the proper construction of section 48(2)(a)(ii). The Builder could have sought to adduce evidence of those matters on this appeal but did not do so.
In any event, assuming there was some procedural unfairness of the type identified, it has been cured by the fact that the issue is before me and is one I will decide. That is, in a practical sense, the Builder has had the opportunity to seek that legal advice and put arguments to me why the costs of an expert’s report does not fall within section 48(2)(a)(ii) of the ACAT Act. In that way, any procedural unfairness has ceased to have any operative effect, assuming it had any to begin with.
I do not accept ground 1.

Ground 2 — section 48(2)(b)(ii) of the ACAT Act

The final Orders made by the Original Tribunal included Order 1, which said:
The Respondent shall pay to the Applicants within 28 days the sum of $8,501.00 comprised of
(a)$170.00 for ACAT ﬁling fee;
(b)$9.00 for company search;
(c)$200.00 for letter box not installed;
(d)$1,600.00 refund for architects fee;
(e)$500.00 for extra bidet points;
(f)$6,022.00 site inspection and defect report.
Orders 1(a), (b) and (f) are the orders relevant to this ground of appeal.
Section 48 of the ACAT Act says:
48     Costs of proceedings
(1)     The parties to an application must bear their own costs unless this Act or another territory law 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
(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 Act 2023 or the Urban Forest Act 2023, 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.
NoteA legal expense relating to a proceeding in the tribunal may be recoverable as a debt under the Unit Titles (Management) Act 2011, s 31.
(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.
Examples—holding costs
•interest and lender imposed charges associated with a loan
•costs of engaging workers and subcontractors and hiring equipment for a development
Sub-sections 48(2)(b)–(d) were inapplicable in the case before the Tribunal, and so it appears that the filing fee was ordered to be paid pursuant to section 48(2)(a)(i), whilst the company search fee and the costs of the Peak Consulting report were ordered to be paid pursuant to section 48(2)(a)(ii).
A number of decisions in the Tribunal have considered section 48(2)(a)(ii) and have construed the word “fee” narrowly. Put broadly, those decisions are to the effect that a “fee” is something like a filing fee or a company search fee, but does not include, for example, solicitors’ fees, barristers’ fees or fees charged by experts for reports.
Ordinarily, I should follow such decisions, or at least those made by the Appeal Tribunal, as a matter of comity unless persuaded that they were clearly or plainly wrong (to use the terminology from the comity cases).
Regrettably, and with no disrespect to the Tribunal Members concerned, after applying the relevant provisions of the Legislation Act 2001 (the Legislation Act) and the approach to statutory construction required by the High Court in R v A2 [2019] HCA 35 (R v A2) and the authorities cited therein, I find myself in disagreement with those earlier Tribunal decisions and that I should not follow them.
I will explain why below.
I will first set out the relevant provisions of the Legislation Act, followed by a summary of the applicable authorities in relation to statutory construction. I will then turn to the legislative history of section 48(2)(a), the admissible extraneous material and a number of Tribunal authorities which considered section 48(2)(a)(ii). I shall discuss those matters in chronological order to place the present section 48(2)(a)(ii) in its proper context. I will then set out my reasoning for my conclusion.
Chapter 14 of the Legislation Act applies to statutory interpretation in the ACT, in conjunction with common law presumptions, as per section 137(3).
Interpretation of part of a statute requires consideration of that part in the context of the whole of the statute, as per section 140, and discussed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 (Alcan) at [47]; and R v A2 at [33].
In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation, under section 139.
Material not forming part of the Act may be considered (in section 141).
Section 142(1) says that such material includes any explanatory statement (however described) for the bill that became the Act, and the Presentation Speech made to the Legislative Assembly during the passage of the bill that became the Act.
Important in this case is section 132. It addresses the use of examples used in statutes (such as those used in section 48(2)(a)(ii) of the ACAT Act). Section 132(1) says:
132 Examples
(1) An example in an Act or statutory instrument—
(a)is not exhaustive; and
(b)may extend, but does not limit, the meaning of the Act or instrument, or the particular provision to which it relates.

Section 132 was declared to be a determinative provision in subsection (4). That means that section 132 must be applied to the ACAT Act where it uses examples unless displaced expressly or by a manifest contrary intention; see section 6 of the Legislation Act.
Presumably, that section was introduced to avoid the application of the common law’s ejusdem generis rule i.e. that general matters are to be constrained by reference to specific matters.
In terms of the common law, Hayne, Heydon, Crennan and Kiefel JJ (as her Honour then was) said in Alcan at [47]:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Citations omitted)
That passage does not support literalism. Context (as explained in the next quote) must be considered in the first instance.
In relation to context, in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 (CIC Insurance), Brennan CJ, Dawson, Toohey and Gummow JJ, with Gaudron J agreeing, said at [88]:
… Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.…
(Citations omitted)
In Federal Commissioner of Taxation v Jayasinghe [2016] FCAFC 79, Allsop CJ said at [7] that that passage from CIC Insurance had been cited too often to be doubted and cited 15 joint or single judgments of the High Court in support of that proposition.
That proposition, together with other pertinent remarks concerning the displacement of the literal meaning of words in favour of a meaning which achieves the evident purpose or policy of a particular statute or statutory provision, was recently restated by a majority of the High Court in R v A2.
In R v A2, Kiefel CJ and Keane J, with whom Nettle and Gordon JJ agreed, said the following:
[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
[33] Consideration of the context for the provision is undertaken at the ﬁrst stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
[34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
[35] The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identiﬁed in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
[36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
[37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
(Citations omitted)
In substance, Bell and Gageler JJ made the same observations. At [124], their Honours said:
The principles of interpretation were not in issue on the hearing of the appeals. In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Consideration of context in its widest sense and the purpose of the statute informs the interpretative task throughout. That consideration, and the consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words.
(Citations omitted)
Important in this case, in terms of context, is the legislative history and the Presentation Speech for the bill that introduced (in 2014) what is now section 48(2)(a)(ii) of the ACAT Act. That history and Presentation Speech also places the holding in CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd And ACT Civil And Administrative Tribunal [2013] ACTSC 96 (CIC)[2] in its proper context, in that section 48(2)(a)(ii) was enacted because of the holding in CIC.
[2] Reported as CIC Australia Ltd v Australian Capital Territory Planning and Land Authority (2013) 277 FLR 26
When the ACAT Act commenced in 2008, section 48 said:
(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 the filing fee for the application; or
(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.
Neither the word “costs” nor the word “fee” was defined in the ACAT Act when first enacted and remain undefined today.
The relevant 2008 Explanatory Statement said of the proposed sections 48(1) and (2)(a):
Clause 48 Costs of proceedings
Provides that the parties must bear their own costs unless this Act or the tribunal otherwise orders:
•       If the tribunal decides a proceeding on an application in favour of the applicant, the tribunal may order the other party to pay the applicant the filing fee for the application;
•       If the tribunal considers that a party caused unreasonable delay or obstruction before or during the proceeding, the tribunal may require the party to pay the reasonable costs of the other party arising from the delay or obstruction; and
•       Subject to clause 49 (costs for contravening an order), if a party to the application contravenes an order of the tribunal – the tribunal may of the order the contravening party to pay all or part of the costs of the application to the other party.
There was no part of the Presentation Speech which addressed section 48 (or section 49).
However, section 49 of the ACAT Act also used the word “costs” and linked that word to the scale of costs under the rules made pursuant to the Court Procedures Act 2004. Subsections 49(1) and (4) of the ACAT Act, which have not been amended since, said:
(1) The tribunal may award costs against a party for contravening an order under section 48 (2) (c) only if satisfied that it is in the interests of justice to do so.
…
(4) Costs are payable in accordance with the scale of costs in the rules under the Court Procedures Act 2004 applying in relation to the Supreme Court.
Section 49 itself has no application in the present case, but of relevance is its use of the word “costs” and particularly the use of that word in section 49(4). Ordinarily, when a word is used in different provisions of a statute then it should be given the same meaning in those different provisions, and so the meaning of “costs” in section 49 sheds some light on the meaning of “costs” in section 48.
Section 49(4) said that costs were to be paid in accordance with the scale of costs mentioned. That scale of costs, which was then found in Schedule 4 of the Court Procedures Rules 2006, governed the rates to be allowed for what lawyers would call professional fees (fees or costs charged by solicitors) and disbursements (being fees or costs incurred for things such as barrister’s fees, search fees, court filing fees, process server fees, expert fees, witness expenses, travel expenses, and transcript expenses).
My research has not revealed any case which has considered the proper construction of section 49(4), but I am inclined to the view that “costs” in that section includes both professional fees and disbursements as I have described them above because of the section’s reference to the scale of costs applying in the Supreme Court. That is the natural meaning of the words used, and to otherwise restrict the word “costs” to something narrower would be to introduce words of limitation which do not appear in the section.
If that is correct, then it is logical that the word “costs” be given the same meaning where that word appears in section 48, namely in subsections 48(1), (2)(b), (c) and (d).
Sometimes the Tribunal is described as a no-costs jurisdiction, but I think that description is apt to mislead in two ways. First, from its inception section 48 allowed for ordering one party to pay another the filing fee, and professional fees and disbursements in certain limited circumstances. Second, parties always incurred costs (whether they be professional fees, or disbursements, or both), the real question being who should pay them.
At least in relation to professional fees and disbursements, and up until 2010, prima facie they were only able to be awarded under section 48(2)(c), namely when a party contravened an order of the Tribunal.
That situation changed in 2010 when subsections 48(2)(d) and 48(3) were added. The additions were:
…
(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) (Frivolous and vexatious applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application; or
(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.
Those amendments made explicit that “reasonable legal costs” were able to be awarded for the types of cases mentioned in section 48(2)(d) that were held to be frivolous and vexatious.
So much is confirmed by the Explanatory Statement to the Justice and Community Safety Legislation Amendment Bill 2010 which said:
Clause 1.4 – New section 48(2)(d)
Section 48 of the ACAT Act provides the general rule that parties before the ACAT must bear their own costs, except in certain circumstances (such as where a party causes unreasonable delay or obstruction). The amendment inserts a new section 48(2)(d) to enable the tribunal to make an order for reasonable costs (except holding costs) where the tribunal considers that the application is a frivolous and vexatious application for the administrative review of a decision under the Heritage Act 2004, the Planning and Development Act 2007, and the Tree Protection Act 2005). This change is intended to ensure certainty in relation to these types of reviews (consistent with section 22P of the ACAT Act which provides that the tribunal must decide applications under these Acts within 120 days after the day the application is made).
Next in time was the judgment of Penfold J in CIC. In that judgment, Penfold J held, in a decision binding on me, that section 48 conferred a narrow costs power on ACAT, being the power to make the orders specified in section 48(2) but only in the circumstances specified in that provision. The relevant question of law and her Honour’s answer to it were as follows:
Question 1: Does ACAT have power to make costs orders under section 48 of the ACAT Act apart from the power to make costs orders of the kinds specified in section 48(2) in the circumstances specified in section 48(2)?
Answer: No. ACAT’s only powers to make costs orders are found in section 48(2) of the ACAT Act and any other applicable legislative provisions.
The judgment in CIC was handed down on 31 May 2013.
About six months later, the Courts Legislation Amendment Bill 2013 was presented to Parliament. Amongst other matters, this Bill amended section 48(2)(a) of the ACAT Act by substituting the following for the then existing section 48(2)(a):
(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, section 126 and section 132).
As one can see, the effect was to add section 48(2)(a)(ii), including the examples. However, it must not be forgotten that section 132(1) of the Legislation Act provides that examples in a statute are not exhaustive, they may extend the meaning of the statute or provisions and (importantly here) they do not limit the meaning of the statute or the particular provision. That is, those examples are not exhaustive and do not limit the meaning of the word “fee” only to fees of the genus or type described in the examples.
Relevantly, in the Presentation Speech on 28 November 2013, the then Attorney-General said that the amendments to section 48 of the ACAT Act were because of a “recent ACT Supreme Court ruling on costs”. As far as I can determine, that ACT Supreme Court ruling on costs was a reference to CIC.
The totality of what was said by the Attorney-General in the Presentation Speech relevant to section 48 was:
The bill will also amend the ACT Civil and Administrative Tribunal Act 2008, following a recent ACT Supreme Court ruling on costs, to clarify that the tribunal has power to award incidental costs, other than the filing fee for the application. If the tribunal decides an application in favour of the applicant, it is only fair that the tribunal is able to award other incidental costs, which the applicant has incurred, in bringing the application before the tribunal. I am proposing therefore an amendment to section 48(2)(a) to allow the tribunal to award costs including any other fees incurred by the applicant that the tribunal considers necessary for the application. These other fees would include, for example, company or business name search fees, subpoena filing fees or hearing fees.
That Presentation Speech is illuminating in terms of ascertaining the mischief which the Bill was intended to remedy, or the defect in the law which the Bill sought to remedy. As the plurality said in R v A2 at [33], the “mischief may point most clearly to what it is that the statute seeks to achieve”. That mischief would seem to be the effect of the decision in CIC.
It is also noteworthy that the Attorney-General said that it was only fair that the Tribunal could award “other incidental costs” which included “any other fees”.
In CIC, Penfold J said that section 48 was a very peculiar provision consisting of several elements cobbled together apparently without regard to their combined effect and was not coherent. Her Honour said that the requirement (in the Legislation Act) to consider the purpose of the legislation provided little help in the interpretative task before her Honour. I agree with both statements but would say here that the Presentation Speech given on 28 November 2013 (which is admissible extraneous material that may be considered) provides some additional material illuminating the purpose of the 2013 amendments, at least up to a point.
Penfold J also said that her Honour’s conclusion about section 48 relied heavily on non-legislative materials, being the note to section 32 and the explanations of section 48 found in the extracts from the 2008 and 2010 Explanatory Statements I have quoted above. I am in a similar position, with the slight additional benefit of the 2013 Presentation Speech and the 2013 Explanatory Statement.
The latter – the Courts Legislation Amendment Bill 2013 Revised Explanatory Statement – is of little benefit, it saying:
Clause 9Costs of proceedings
Section 48 (2) (a)
This clause clarifies that when the Tribunal decides an application in favour of the applicant, it can award incidental costs of an application against the other party. Incidental costs may include application filing fees, business name search fees, subpoena filing fees and hearing fees.
The word “incidental costs” in the Explanatory Memorandum and the Presentation Speech are not found in the ACAT Act, were not defined or described in the Explanatory Memorandum or the Presentation Speech, and only serve to add confusion to the existing uncertainties of the provision.

Nevertheless, it seems tolerably clear that “costs” in section 48(1) includes the fees in section 48(2)(a). That is the natural fit between those two provisions, and the Attorney-General said in the Presentation Speech that he was proposing to allow the Tribunal to “award costs including any other fees” incurred by the applicant which the Tribunal considered necessary for the application.
A number of subsequent Tribunal decisions considered section 48(2)(a)(ii) and its meaning. The cases which I now describe are those that my research has discovered which most directly address section 48(2)(a).
In Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123 (Williams Love), three of five grounds of appeal were dismissed, and the balance were discontinued. The respondent sought her costs of the appeal including the cost of her legal representation. That application was dismissed, the Appeal Tribunal correctly holding that it was bound by the decision in CIC, and then holding that section 48(2)(a) was not relevant, without giving reasons why that was so. There was no mention of the 2013 amendments to section 48(2)(a).
In Marshall v Frank Ugolini and Judy Burai Trading As Bubs N Grubs [2016] ACAT 82, the respondent was ordered to pay the appellant $1,853 by way of refund of the purchase price and the freight charges for the subject goods, $68 for the filing fee and $9 for a search fee.
In addition to those two fees, the applicants sought costs for printer ink ($180) and paper ($10) and for their time spent preparing documents and appearing at the Tribunal assessed at 25 hours @ $25 per hour ($625). The Tribunal rejected those claims on the basis that “none of the additional costs, as claimed by the applicants, were fees incurred.” No reasons were given explaining that finding.
Burton & Anor v Rojas Constructions Pty Ltd [2018] ACAT 117 (Burton) was the first decision (that I can find) that examined section 48(2)(a) in some detail. In that decision, the Tribunal said the following:
[75] Generally speaking under the ACT Civil and Administrative Tribunal Act 2008, each party is responsible for his or her own costs. Section 48 of the Act provides:
…
[76] The Tribunal concludes that the Clients have been at least partially successful in their application and consequently the Tribunal awards them $159 in respect of the filing fee.
[77] The Clients also seek the costs associated with Mr Leary’s report ($1980).
[78] Section 48(2)(a) of the ACT Civil and Administrative Tribunal Act 2008 was amended in 2014 by the Courts Legislation Amendment Bill 2013.
[79] Prior to that time, ACAT could only award the application fee to a successful applicant. However, people particularly in the civil jurisdiction are faced with other compulsory government fees in order to access justice, such as a fee for an ASIC search, which we require clients to provide if, for example, they are making a claim against a company, and hearing or subpoena fees.
[80] The amendment was intended to allow those other fees to be reimbursed.
[81] However, there was no suggestion or intention that a party could claim a ‘disbursement’ such as expert witness expenses, although sometimes these are referred to as witness ‘expenses or fees’.
[82] The explanatory statement to the amendment provided:
Clause 9 Costs of proceedings Section 48 (2) (a)
This clause clarifies that when the Tribunal decides an application in favour of the applicant, it can award incidental costs of an application against the other party. Incidental costs may include application filing fees, business name search fees, subpoena filing fees and hearing fees.
[83] The word ‘fee’ was used intentionally, instead of a broader word ‘costs’ or ‘expenses’ to try to distinguish from other kinds of costs or expenses which would ordinarily be considered disbursements.
[84] As a consequence the Tribunal is unable to make an award in the terms sought by the Clients and this portion of their claim is dismissed.
As I read those passages, the Tribunal construed the word “fee” to mean “compulsory government fee”.
The Tribunal was again asked to consider the awarding of the costs of an expert’s report in Swan & Anor v Residential Reports Pty LimitedACN 609 880 122 [2021] ACAT 7 (Swan). The Tribunal referred to CIC, William Love and Burton and held at [19]:
In this case, the Tribunal accepts the reasoning in Burton and dismisses the claim by the applicants for re-imbursement of costs for experts’ reports and the Australian Standard. In the Tribunal’s view, the costs of expert reports and the Australian Standard are disbursements incurred by the applicants to prove their case and are not fees. However, the Tribunal accepts the applicants’ claim for reimbursement of the filing fee ($159.50), the subpoena fee ($44), and the ASIC search fee ($9).
No further reasons were given for that conclusion.
In The Owners – Units Plan No 1475 v Davidson & Anor [2022] ACAT 10, the Appeal Tribunal awarded a successful appellant a little over $500 for the costs of a transcript. The Appeal Tribunal said at [100]:
The Appeal Tribunal considers that the transcript fee is necessary under section 48(2) of the ACAT Act because it was necessary to obtain a transcript to properly scrutinise the first instance decision.
In Dunne Trading As Act Gutter Service & Anor v Lengyel & Anor [2024] ACAT 57 (Dunne) the Appeal Tribunal held that the original tribunal was in error in awarding a successful applicant the costs of an expert’s report. The Appeal Tribunal said:
[46] The tribunal is a “no cost” jurisdiction. Section 48 of the ACAT Act provides that:
…
[47] Section 48(1) of the ACAT Act makes it clear that the parties to proceedings must bear their own costs unless otherwise provided by the Act. There are few exceptions, but only one is possibly relevant in this case.
[48] Under section 48(2), the tribunal has a discretion, where the applicant in a claim or counterclaim is successful, to order the other party to pay certain “expenses” of the application.
[49] In Burton v Rojas Constructions Pty Ltd (Burton), the Tribunal considered whether the cost of an expert report, paid for by the successful party, should be re-imbursed:
[Paragraphs [78]–[83] of Burton were then quoted]
[50] Applying the reasoning in Burton, the expert report of Mr Turl is a disbursement and not a “fee”, and no order can be made for its recovery under section 48(2).
[51] There may be some cases where a report will fall within the claim for compensation, whether as loss suffered or rectification costs. For example, a callout fee for an appropriate professional to identify and repair a defect may be form part of the claim, as it is a reasonable and unavoidable loss incurred in remedying the breach. However, the Turl Report is clearly an expert report prepared for the purpose of dispute resolution, if not legal action, and used by the respondents to formulate and prove their case. It is the kind of cost that section 48 is intended to exclude. That the cost of the report was “reasonable” does not give the Tribunal to power to award it. The award of compensation for the report was contrary to the requirement that parties pay their own costs, as set out in section 48 of the ACAT Act. The Original Tribunal was in error in awarding this sum, and that aspect of the decision must be set aside.
Finally, in Bhara & Anor v De Costa & Anor [2024] ACAT 62, the Tribunal dismissed a claim for printing costs. The Tribunal said at [145]:
The tenants seek their printing costs for bringing this application. ACAT is a no costs jurisdiction and only under very specific circumstances as outlined in section 48 and rule 103, does the Tribunal award costs or expenses. These circumstances do not meet the requirements of section 48 or rule 103. The application for payment of printing costs is dismissed.
After much consideration, I find myself unable to agree with those decisions which held that a disbursement (as lawyers would understand that term) was not a fee, or that “fee” meant a compulsory government fee.
Rather, after considering the extraneous material set out above (and most particularly the Presentation Speech given in relation to the 2013 amendments), applying all of the relevant provisions set out in the Legislation Act and applying the approach described by the High Court in R v A2, I have come to the conclusion that the word “fee” in section 48(2)(a)(ii) means any disbursement (as lawyers understand that term). For the avoidance of doubt, I do not think “fee” includes professional fees or costs charged to clients by solicitors and barristers.
My reasons for coming to those conclusions are as follows.
First, neither “fee”, “fees” or “costs” are defined in the ACAT Act. Nor were they the subject of any explanation in the various explanatory statements and presentation speeches.
Second, there is no ordinary or grammatical meaning of the word “fee” which seems to be applicable. The ordinary or grammatical meaning of fee is a payment made to a professional person or to a professional or public body in exchange for advice or services. I do not think that meaning applies because section 48 distinguishes between “costs” (which includes professional fees) and a “fee”, thereby indicating a “fee” was something different to “costs”.
The words “fees” and “costs” are often used interchangeably in a legal context. Hence, lawyers will speak of “solicitor’s fees” and “solicitor’s costs” when speaking of the same subject matter (although it must be said that “costs” is often used when referring to both professional fees and disbursements). On that last point the Federal Court website, for example, says this:[3]
Parties may employ lawyers (barristers or solicitors) to represent them in a proceeding. These lawyers usually charge their clients for their services (fees) and expenses that they have paid on the client’s behalf (disbursements). Disbursements may include court fees. Together these charges are known as costs.
[3] Federal Court of Australia, ‘Forms, Fees & Costs — Legal Costs’ >
As is obvious, the word “fee” is used in the above context to refer both to professional fees and certain expenses.
In the Australian Capital Territory, the Legal Profession Act 2006, for example, uses the word “fee” 91 times and uses it when referring both to professional fees (see section 16(2) for example), and also to expenses (or disbursements) such as those levied for the issuing of a practising certificate (see section 44(2)(a)(ii) and section 84 for example).
My point here is that, if one starts with the ordinary or grammatical meaning of the word “fee”, it seems to include professional fees as well as disbursements.
Third, in Burton, the Tribunal said that the word “fee” was used intentionally, and instead of “costs” or “expenses” to distinguish fees from other kinds of costs or expenses which would ordinarily be considered disbursements. No authority or source was cited for the proposition that “fee” was used intentionally and for the stated purpose. I cannot find any statement to that effect in the extraneous material and cannot find anything in the admissible material that the word “fee” was used to distinguish a genus of expense different to other kinds of costs or expenses which would ordinarily be considered disbursements.
Fourth, the text and structure of section 48 suggests “fees” and “costs” were to have different meanings. “Costs” (and not “fees”) is used in subsection 48(1) and (2)(b), (c) and (d). In contrast, “fees” (and not “costs”) is used in subsection 48(2)(a).
As “costs” in subsection 48(2)(d) expressly includes “legal costs” because of subsection 48(3), that text suggests that “fees” has a narrower meaning. I appreciate section 48(3), in terms, only applies to subsection 48(2)(d), but I think subsection 48(3) is to be understood as having the intention of excluding holding costs from subsection 48(2)(d) rather than having legal costs included in subsection 48(2)(d) but excluded from “costs” in subsection 48(2)(b) and (c).
The most obvious narrower meaning for the word “fee” is disbursements as lawyers would understand that term. Such a meaning would seem consistent with ACAT’s objective of being a relatively simple, low-cost jurisdiction (meaning, any costs orders against parties would be relatively modest) as reflected in section 6(b) of the ACAT Act which says that one of the objects of the ACAT Act is:
… to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal…
Fifth, there is no statutory formula or definition in the ACAT Act of a “fee”. The examples given in section 48(2)(a) are clear enough, but it would be contrary to section 132 of the Legislation Act to use those examples to limit the operation of the section.
Sixth, I am unable to conceive of any logical rationale for differentiating between necessary expenses (to use a neutral expression) incurred by applicants in prosecuting their case. Why would certain necessary expenses be recoverable and not others?
It is easy to understand why it would be thought that filing fees, company and business name search fees, subpoena fees and hearing fees were necessary to a successful applicant’s application. But there are many cases in which expert’s reports are also necessary for the success of an application. Building cases are perhaps a classic example. It is very often the case that an applicant’s case will fail in the absence of an expert report whether as to liability, damages (such as reasonable remediation or repair costs) or both.
In a building case where a successful applicant can only win by obtaining expert evidence at a cost, I cannot see the justice, logic or rationale for allowing that applicant to recover some expenses necessarily incurred to win their case, and not allow them to recover certain other expenses, especially in the absence of any statutory test being provided to differentiate between recoverable and irrecoverable expenses.
It might be argued that the rationale is that the ACAT is an inexpensive or low-cost jurisdiction, but I do not find that rationale convincing. Simply because certain costs, fees or expenses are irrecoverable from another party does not make the ACAT a low-cost jurisdiction. It just means that one party bears those costs, fees or expenses rather than another.
What perhaps makes the ACAT a low-cost jurisdiction, amongst some other factors, is that professional fees are (outside the limited exceptions) irrecoverable under section 48. That fact discourages litigants from retaining legal advisors and thus discourages them from incurring legal fees. In that way, all parties’ costs are reduced.
It seems to me that the purpose of section 48(2)(a) was to provide for the exercise of a discretion exercisable by the Tribunal to allow recovery by successful applicants of expenses incurred by them and which were necessary for the prosecution of their application. In that way, my construction of the word “fee” best achieves the purpose of the section per section 139 of the Legislation Act.
Seventh, presumably the underlying reason for allowing successful applicants to recover fees is the general principle that costs are compensatory and that a successful applicant should be reimbursed for the money necessarily spent in bringing their application. If that be correct, why would a successful applicant be entitled to be compensated for some necessary expenses incurred and not others?
Eighth, following on from the last point, the absence of any statutory definition of “fee” and the absence of a statutory test to apply to differentiate between recoverable and irrecoverable expenses suggests that Parliament did not intend any such differentiation to occur. Rather, it seems more probable to me that Parliament intended successful applicants be entitled to recover any disbursements expended which the Tribunal held were necessary to their successful applications.
Like Penfold J, I find section 48 to be a wholly problematic section and no construction fits seamlessly with the wording and the context, with logic and rationales underpinning costs provisions. The section seems to me to be haphazard and capricious. After all, successful applicants are entitled to have some fees paid (such as a fee for a transcript, subpoena fee and company search fee), but successful respondents are not entitled to any fees at all.
However, be that as it may, the sections must be construed. To my mind there is no warrant to read “fee” as a compulsory government fee or some other narrow interpretation. Nothing in the text, context, legislative history or extraneous materials support such a conclusion.
In the Presentation Speech, the Attorney-General said that the purpose of the bill was to amend the ACAT Act “following a recent ACT Supreme Court ruling on costs”, which I take to be a reference to CIC. That was the mischief the Parliament wanted the amendment to address.
The 2013 amendments did not address Penfold J’s holding that section 48 conferred a narrow costs power on ACAT, being the power to make only the orders specified in section 48(2) and only in the circumstances specified therein. Rather, the amendments sought to expand the orders and circumstances specified in section 48(2)(a) up to that point in time, namely, to provide that the Tribunal may award further expenses in addition to the filing fee.
Those further expenses were described in the Explanatory Statement and Presentation Speech as being “incidental costs”, incidental presumably having the ordinary meaning of happening as a result of an activity, or directly connected with. Of course, the word “incidental” does not appear in section 48 and it is the words of the provision which are to be construed, not the words of the extraneous materials.
Ultimately, the issue is how far the word “fee” extends. It is less than “costs” because Parliament used “fee” in section 48(2)(a) rather than the word “costs” used in subsections 48(1) and (2)(b), (c) and (d).
But there is no statutory language confining “fee” to “compulsory government fees” or other narrow interpretation. Such an interpretation would be to introduce words of limitation into the statute which do not exist.
In my view, the word “fee” includes any disbursement (as lawyers would understand that term) or expense (to use a neutral expression) which was incurred in order for an applicant to prosecute his, her or its case.
The limitation on the recoverability of such fees is twofold. First, it must be “necessary for the application” as provided for in section 48(2)(a)(ii), and such fees are only recoverable if the Tribunal is persuaded to exercise the discretion in an applicant’s favour.

The third matter

The third matter that arises is that, in exercising its discretion, the first instance Original Tribunal said that it had ordered the applicants to obtain the Peak Consulting report.
I can find no order to that effect, nor did the Original Tribunal identify any such order.
The only orders I can find were to the effect that the parties should file and serve any expert reports upon which they intended to rely. That is different to an order to the effect that a party must file and serve an expert’s report.
Accordingly, the exercise of the discretion miscarried because it proceeded on an incorrect basis.
I am able to re-exercise the discretion and would exercise it in favour of the applicants. A reading of the Original Tribunal’s reasons indicates that the contents of the Peak Consulting report was evidence relied upon by the Original Tribunal in arriving at least some of its factual findings in favour of the applicants. Therefore, the report was necessary for the application.
Otherwise, because an award of fees is compensatory, I would order the respondent to reimburse the applicants for the costs of the expert report which the applicants incurred in prosecuting their application.

In those circumstances, I shall simply order that the appeal be dismissed. The effect of that order is that the orders made by the Original Tribunal on 26 April 2024 remain undisturbed.
………………………………..

Acting Presidential Member G Curtin SC

Date of hearing:	14 October 2024
Appellant:	Mr J Dickman (director of the appellant)
Respondents:	In person