Kilpatrick v Port Kembla Port Corporation (No. 2)

[2013] NSWADT 308

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Kilpatrick v Port Kembla Port Corporation (No. 2) (Costs) [2013] NSWADT 308

Hearing dates:

On the papers

Decision date:

31 December 2013

Before:

Judge K P O'Connor, President

Decision:

(1) The respondent's costs application is granted.

(2) The applicant is to pay the respondent's costs of the proceedings, fixed at $5,000.

Catchwords:

COSTS - Review application outside jurisdiction - Respondent's application granted

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Uncollected Goods Act 1995

Cases Cited:

Kilpatrick v Port Kembla Port Corporation [2013] NSWADT 195

Category:

Costs

Parties:

Leslie Kilpatrick (Applicant)
Port Kembla Port Corporation (Respondent)

Representation:

In person (Applicant)
S Dyball, Heard McEwan Legal (Respondent)

File Number(s):

133178

reasons for decision

1. I have dismissed the applicant's review application on the ground of want of jurisdiction: Kilpatrick v Port Kembla Port Corporation [2013] NSWADT 195 (30 August 2103). The respondent, as it foreshadowed in its principal submissions, has now applied for its costs of the proceedings. The Registrar gave directions to the parties to file submissions, the respondent by 17 September 2013, and the applicant by 1 October 2013. The respondent filed its submissions on 12 September 2013, and there were no submissions from the applicant. The file was returned to me late in November.

1. The respondent applied for an order for its full costs of the application and the response, including indemnity costs in accordance with the general rule at law that costs follow the event. I note at this point that the costs-follow-the-event rule does not apply in this Tribunal (see further below).

1. On 3 December 2013 I requested the respondent to provide a fixed amount costs estimate, so that, if I was minded to accede to the application, I could make a final costs order. I have adopted this practice in recent years so as to avoid yet another point of dispute between parties. The request was copied directly to the review applicant.

1. This led to a reply from the review applicant protesting that he had never received the respondent's submissions filed 12 September 2013. I gave him time to file. He filed submissions on 11 December 2013 responding to those submissions. The review applicant submitted that each party should bear their own costs. The submissions referred to the history of the dispute between the parties over the goods left on the respondent's land, and contended that the review applicant's interests had been dealt with in an improper way in various respects by the respondent and the respondent's solicitor.

1. On 12 December 2013 the respondent's solicitor filed an estimate of professional costs and disbursements, $8082.92 in the form of an itemised bill prepared by the firm. On 18 December 2013 the respondent's solicitor filed substantive submissions replying to the review applicant's submissions. As to the review applicant's claim that he did not receive the respondent's submissions filed 12 September 2013, the respondent's submissions of 18 December 2013 annex a letter showing that it was copied by email to Paul Kilpatrick at Paul's email address. Paul Kilpatrick had appeared as non-lawyer agent for his father before me in the earlier proceedings, and was still recorded as his representative at that time. He was no longer recorded as representing his father when the file was returned to me, giving rise to the direct communication with his father.

The Ordinary Rule

1. The ordinary rule in the Tribunal is that each party bears its own costs. Administrative review proceedings concern the relationship between individuals and government, and a public purpose is served by the accountability that administrative review proceedings bring to the functioning of government. It is most unusual for the Tribunal to depart from the usual rule in administrative review proceedings.

1. The Tribunal's power to award costs is by way of exception, and s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act) governs the discretion. It 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.

Respondent's Submissions

1. The respondent did refer in its submissions to several of the considerations listed in s 88(1A)(a), in particular items (i), (iii) and (v). The applicant failed to file and serve submissions in accordance with the original timetable, leading to a wasted preliminary hearing (31 July 2013) with the result that the matter was delayed, and the hearing needed to be put back by five days to 5 August 2013. The submissions go on to contend that the applicant has vexatiously conducted the proceedings (see item (vi)), and a case that had no tenable basis in fact or law (para (c)).

1. The respondent states that on numerous occasions it made the applicant aware that the items of equipment the subject of the proceedings were not in the respondent's possession and could not be returned to the applicant without the authority of the liquidator of Kilpatrick Group Pty Ltd (in Liquidation). The applicant is the principal director of the company.

1. The respondent has also submitted that the applicant attempted to deceive (see item (v)) the respondent and the Tribunal by submitting an affidavit of Paul Kilpatrick (his son and then representative before the Tribunal) sworn 19 July 2013 purporting to be witnessed by a person described as a barrister, 'H K Tobin'. The submissions have attached a letter from the NSW Bar Association stating there is no barrister known to it with that name, now or in the past.

Review Applicant's Submissions

1. The review applicant submits that he did make all reasonable efforts to resolve the dispute. The submissions refer to notices said to have been given three times by the respondent in April 2013 (on the 19th, 24th and 30th) that it would be taking action in the Supreme Court in relation to the goods left on its land under the Uncollected Goods Act 1995 and claims that it failed to pursue the demand, forcing the review applicant to proceed by filing a review application on 31 May 2013 in the ADT to get the dispute resolved, invoking the Impounding Act jurisdiction of the ADT. This was the same day that the review applicant obtained an injunction from Kunc J of the Supreme Court after learning that the equipment was due to be auctioned on 1 June 2013. The review applicant claims that he was 'intentionally mislead' by the notices given in April 2013.

1. The review applicant rejects the respondent's assertion that the witness to the affidavit sworn 19 July 2013 was not qualified.

1. The review applicant also makes a technical submission, arguing that the Tribunal was not involved in its review jurisdiction when making its decision upholding its objection to jurisdiction. The argument is that as the review application was found incompetent, the review jurisdiction was never engaged, and therefore the Tribunal must have been in its 'original' jurisdiction, and s 88(3) needs to be satisfied. There is no relevant provision. This argument is misconceived. The Tribunal was seized of an application purporting to engage its review jurisdiction. The ADT Act, s 38 requires the Tribunal to satisfy itself whether an application engages the review jurisdiction. Proceedings in the review jurisdiction extend to questions anterior to the exercise of the function, such as whether the application falls within the jurisdiction, standing, compliance with time limits and the like. A respondent forced to appear in the Tribunal by the lodgment of a review application is not barred from applying for costs by being successful in bringing the application to a quick end on a preliminary point going to jurisdiction.

Assessment

1. I will not address the issue as to the witnessing of the affidavit. This is a dispute of fact that I do not need to address to decide this application. I make no finding on the matter. The witness statement would, in the ordinary practice of this Tribunal, have been accepted even if the witness did not belong to the classes required for the witnessing of affidavits.

1. I do not accept that the respondent or the respondent's solicitor engaged in any improper conduct in the pursuit of its claim against the goods, and in placing them with an auctioneer. I accept the respondent's solicitor's account of the attempts it made to obtain a resolution of its claim in respect of the goods.

1. I agree that there was an unnecessary delay caused by the applicant's failure to file submissions in accordance with the original timetable. I do not regard that as a significant matter in the context of a case of this dimension. Further the hearing was conducted by telephone, so that the respondent did not have any costs of attendance in Sydney. Ms Dyball, solicitor of Heard McEwan Legal, prepared the respondent's written submissions, and presented the oral submissions.

1. In my view the applicant's case was untenable. I refer in particular to para [32] of my reasons. The only reasonable connotation of the circumstances was that the respondent took action against the goods under the Uncollected Goods Act 1995, and therefore the review jurisdiction of this Tribunal was not engaged. This is so, even if, as the applicant contends, he owned the goods personally not the company in liquidation.

1. I do not see the case as one so hopeless or so badly conducted that an indemnity costs order should be made. It is sufficient that there be an award of costs free of that consideration. If I make an unquantified order and leave the amount to be determined by negotiation or the costs assessment process, I will be allowing another theatre of conflict. The respondent has filed an itemised bill. The items all refer to work reasonably connected with the ADT proceedings and the specific amounts appear reasonable.

1. In my view an award of $5,000 is appropriate. I accept that this amount is short of the amount shown in the itemised account. But I think it better to fix an amount and bring an end to the controversy before the ADT.

Order

(1) The respondent's costs application is granted.

(2) The applicant is to pay the respondent's costs of the proceedings, fixed at $5,000.

Decision last updated: 20 January 2014