Lal v Department of Transport and Infrastructure

[2010] NSWADTAP 34

Appeal Panel - Internal

CITATION:	Lal v Department of Transport and Infrastructure [2010] NSWADTAP 34
PARTIES:	APPELLANT Shiu Mohan Lal RESPONDENT Department of Transport and Infrastructure
FILE NUMBER:	109009
HEARING DATES:	4 May 2010
EXTEMPORE DECISION DATE:	4 May 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	COSTS – conduct which unnecessarily disadvantages respondent
DECISION UNDER APPEAL:	Lal v Department of Transport and Infrastructure, unreported, 15 December 2009
FILE NUMBER UNDER APPEAL:	093268
DATE OF DECISION UNDER APPEAL:	12/15/2009
REPRESENTATION:	APPELLANT Mr Nair, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	1. Appeal is withdrawn and dismissed 2. Appellant to pay the Respondent’s costs in the sum of $2,002.

EX TEMPORE DECISION

1 HER HONOUR: The appeal has been withdrawn and is dismissed. I make an order that the appellant pay the respondent's costs in the sum of $2,002 being the costs of the appearance by Mr Viney on 9 March 2010 and of Mr Wozniak today, 4 May 2010. The reason for that order, even though costs are not generally ordered in this jurisdiction, is that on 4 February 2010 an appeal was lodged purportedly against the tribunal's decision of 15 December 2009. The matter was listed for a directions hearing on 9 March 2010. Mr Pall appeared for the appellant and Mr Viney appeared for the respondent on that occasion. The following orders and directions were made. The Appeal Panel noted that the appeal was lodged in time, that is within twenty-eight days of receiving written reasons. The tribunal also noted that there was no appeal on a question of law and that the appellant needed leave for the appeal to extend to the merits of the tribunal's decision. The question of leave was set down for hearing today and a direction made for the respondent to file and serve a reply by 30 March 2010.

2 Mr Nair, counsel for Mr Lal, has told the Appeal Panel today that rather than appealing against the tribunal’s decision in relation to his private hire vehicle licence, it was the intention of Mr Lal’s solicitor to apply for a review of a decision in relation to his authority and accreditation. To that end an amended notice of appeal was lodged on 29 April 2010 which purported to appeal on a question of law against the tribunal's decision. According to Mr Nair, that appeal was actually intended to be an application for a review of a decision of the Director-General in relation to the cancellation of Mr Lal's authority and accreditation. Given that chronology it is clear that Mr Viney on 9 March, and Mr Wozniak today, have attended the tribunal unnecessarily because the applicant has said today that he does not intend to appeal against the tribunal's decision.

3 Section 88 of the Administrative Decisions Tribunal Act 1997 gives the tribunal power to make orders as to costs. In these circumstances where the applicant has been legally represented and has unnecessarily put the respondent to costs which it would not have otherwise incurred, I order that the appellant pay the respondent's costs in the sum of $2,002. I also note that in any subsequent application that Mr Lal may make in relation to the respondent's decision to cancel his authority and accreditation, the issue of whether such an application should be accepted out of time should take into account these reasons for decision.