Kelly v Smith (No2)

[2018] NSWCATAD 141

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Kelly v Smith (No2) [2018] NSWCATAD 141
Hearing dates:	On the papers
Date of orders:	02 July 2018
Decision date:	02 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Titterton, Principal Member M Bolt, Senior Member B Thomson, General Member
Decision:	The applicant is to pay the respondent’s costs, as agreed or as assessed.
Catchwords:	COSTS – special circumstances - no question of principle
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Commonwealth v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 Hopkins v Governor-General of Australia [2013] NSWCA 1068 Mergerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Moore v Inglis (1976) 50 ALJR 589
Category:	Costs
Parties:	Peter Kelly (Applicant) Martin Smith (Respondent)
Representation:	Applicant: self-represented   Solicitors: Colin Biggers & Paisley (Respondent)
File Number(s):	2017/000343134

REASONS FOR DECISION

Introduction

1. In Kelly v Smith [2018] NSWCATAD 122, we dismissed Mr Kelly’s application that Mr Smith be disqualified from holding civic office in Ku-ring-ai Council.

2. These reasons concern the costs of that application. For the following reasons, Mr Kelly, who was unsuccessful, must pay Mr Smith’s costs.

3. We note that both parties were directed to file submissions on this issue. Submissions were received from Mr Smith on 13 June 2018, and from Mr Kelly on 22 June 2018.

Relevant principles

4. Mr Kelly has been unsuccessful. In these matters, the usual rule is that each party bears its own costs: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 60(1). However, costs may be awarded only if there are special circumstances warranting an award of costs: s 60(2).

5. Section 60(3) provides:

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.

6. The respondent submits, in summary that:

• the application was frivolous and untenable (NCAT Act, ss 60(3)(c) and (e));

• the application was vexatious (NCAT Act, s 60(3)(e)); and

• the application was an abuse of process (NCAT Act, s 60(3)(e));.

Mr Smith’s submissions

7. As to the application being frivolous and untenable, Mr Smith relies on pars [25] and [26] of the primary decision, namely our findings that:

25. There is no evidence before the Tribunal on which…