KT v Sydney Local Health District (No 2) (Costs) (GD)

[2013] NSWADTAP 7

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	KT v Sydney Local Health District (No 2) (COSTS) (GD) [2013] NSWADTAP 7
Hearing dates:	On the papers
Decision date:	01 February 2013
Before:	Judge K P O'Connor, President
Decision:	The appellant pay the respondent's costs of the appeal, fixed at $4,970.
Catchwords:	COSTS - Appeal dismissed - Respondent's Application for Costs of Appeal - Granted in Fixed Amount
Legislation Cited:	Administrative Decisions Tribunal Act 1997
Cases Cited:	KT v Sydney Local Health District (GD) [2012] NSWADTAP 43 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
Category:	Costs
Parties:	KT (Appellant) Sydney Local Health District (Respondent)
Representation:	Counsel A Britt (Respondent) In person (Appellant) A Bridges-Webb, Curwoods Lawyers (Respondent)
File Number(s):	129001
Decision under appeal	Jurisdiction: 9108 Citation: KT v Sydney Local Health Network [2011] NSWADT 292 Date of Decision: 2011-12-09 00:00:00 Before: General Division File Number(s): 103094

reasons for decision

1. At the close of the Appeal Panel's principal decision in this matter (KT v Sydney Local Health District (GD) [2012] NSWADTAP 43 (31 October 2012)), dismissing the appellant's appeal, the Panel said in relation to the respondent's foreshadowed costs application:

59 As has been said in other Appeal Panel rulings in costs, the ordinary rule of this Tribunal is that no costs awards should be made. We accept that the degree of rigour with which the rule is applied may differentiate between proceedings at first instance and appeals. A successful party at first instance should not lightly be exposed to a further round of litigation by way of an appeal. An appellant who has avoided a costs order at first instance should not expect that the same will follow on appeal. Much will depend on how reasonable the appeal was, whether the points that were taken were arguable, and whether the appeal was conducted in a concise and fair way. Appeals of the present kind, which essentially seek to reopen all aspects of the first instance proceedings (all adverse factual findings, all adverse rulings as to the applicability of the legal principles) should not be encouraged.

60 Our provisional view is that a costs order is justified. We have not as yet made a final decision.

61 We direct that submissions on this matter be made within 14 days by the appellant, and submissions in reply by the respondent in a further 7 days. The respondent is to indicate what amount is sought, and the basis for the calculation of that amount.

1. This decision concerns that application. As permitted by the Administrative Decisions Tribunal Act 1997 (the ADT Act), s 24A(1), (2)(a), the decision is made by the President sitting alone. I have dealt with the matter without holding a hearing in exercise of the discretion given by s 76.

1. The appellant, KT, did not lodge any submissions by 15 November 2012. The respondent did lodge submisions on 16 November 2012. They included brief further submissions in support of the costs application, and advised what amount was sought.

1. On 27 November 2012, KT sent a letter addressed to the President of the Tribunal that was opened in Registry, as is customary. He complained that he had not received any notice of the decision made 31 October 2012. He said that he only became aware of it because of a letter he had received on 22 November 2012 dated 15 November 2012 from the solicitors for the respondent forwarding its submissions.

1. KT's letter also included an application for me to disqualify myself. The Registrar replied on 7 December 2012 requesting KT to provide any written submissions as to the respondent's costs application by 17 December 2012, and to include in them any reasons as to why I should disqualify myself. The Registry received a fax from KT on 17 December 2012. I did not require any submissions in reply from the respondent.

1. Disqualification Application. KT's fax of 17 December 2012 contains a number of criticisms of aspects of the reasoning and procedure followed in relation to the principal decision. They are not relevant to the present issue, the respondent's costs application. The application for disqualification refers to various aspects of my conduct of the appeal hearing and in relation to other occasions when I have presided in cases brought by KT. The matters raised include such matters as references made in the reasons for decision in this and other cases to the circumstances of KT's loss of employment with the respondent agency. It includes criticisms of decisions made in other appeals, such as over non-allowance of witness summonses. KT also criticises the fact that the Registrar has given access, with my approval as head of jurisdiction, to his files in response to requests made by the Crown Solicitor in connection with a possible vexatious litigants application. I have treated the application as raising an allegation of apprehended bias in the form of pre-judgement, as distinct from actual bias. Applying the relevant test as most recently set out in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ, I do not think that a fair-minded lay observer would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of this application.

1. Respondent's Costs Application. I will now turn to the substance of the respondent's application. The basic rule in proceedings in the Tribunal is contained in s 88(1) of the ADT Act - each party is to bear their own costs. A costs order can be made by way of exception where it is 'fair to do so' having regard to relevant matters, including the specific considerations set out in s 88(1A).

1. The respondent referred to the length of KT's submissions, 25 pages with 88 paragraphs, noting that the Appeal Panel had specified a maximum of 5,000 words. The respondent drew attention to comments made by the Appeal Panel in the extract set out at para [1] above. The respondent referred, in addition, to the many grounds of appeal in the appellant's notice of appeal that did not raise the possibility of legal error in the way the Tribunal below heard the case and in the way it stated its reasons for decision. The submissions noted that the Appeal Panel proceeded by endeavouring to elicit the 'essential components' of the appeal 'without paying close attention to the distinction between questions of law and questions of fact' (see reasons, [34]). The respondent referred to the weakness of the appellant's case, confirmed by the Appeal Panel's assessment. The respondent submitted that the appeal had no tenable basis in law or fact.

1. I agree with the points made by the respondent. The respondent seeks reimbursement of counsel's fees ($4,970), and does not seek recovery of its own professional costs ($6,587 as at the date of the submissions). The respondent provided a break-up of counsel's costs into the fees for perusing the appeal material and preparing submissions, and for preparing for and attending upon the hearing. All of these amounts appear to me to be reasonable. Further, I regard this as a case where the engagement of counsel was appropriate.

1. In the circumstances I think it fair to make a costs order in the amount specified, mindful that the usual rule in proceedings in this Tribunal is that each party bears their own costs.

Order

The appellant pay the respondent's costs of the appeal, fixed at $4,970.

Decision last updated: 01 February 2013