LANFRANCHI & OWNERS OF UNITS PLAN 806 (Civil Dispute)
[2011] ACAT 83
•14 December 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LANFRANCHI & OWNERS OF UNITS PLAN 806
(Civil Dispute) [2011] ACAT 83
XD 981 of 2011
Catchwords: CIVIL DISPUTE - general principles as to costs – Tribunal’s power to award costs – interpretation of sections 48 and 49 of the ACT Civil and Administrative Tribunal Act 2008 – presumptive rule that each party bear their own costs – departure from the presumptive rule
List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss. 48 & 49
List of cases: Calderbank v Calderbank [1975] 3 WLR 586
Mainore Pty Ltd & Act Planning and Land Authority & CIC Australia Pty Ltd (Administrative Review) [2011] ACAT 24
List of Texts/ David Bamford, Principles of Civil Litigation, Lawbook Co
Papers(2010)
Tribunal: Ms J Lennard, Senior Member
Date of Orders: 14 December 2011
Date of Reasons for Decision: 14 December 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 981 of 2011
BETWEEN:
KARINA LANFRANCHI
Applicant
AND:
OWNERS OF UNITS PLAN 806
Respondent
TRIBUNAL: Ms J. Lennard, Senior Member
DATE: 14 December 2011
ORDER
The Respondent is to pay on an indemnity basis the Applicant’s costs incurred since 1 September 2011, and such costs are to be calculated at the Supreme Court scale.
Costs should be agreed.
If the parties are unable to reach agreement as to costs within 21 days of the date of this order:
(i)the Applicant is to file and serve a bill of costs using the form provided in the Court Procedures Rules;
(ii)the Respondent is to file and serve a document setting out any objections to the bill within 7 days of service of the bill;
(iii)the parties are to participate in a conference at a time and place directed by a Tribunal registrar;
(iv)a Tribunal registrar is to consider the bill and any objections, and make a recommendation to the tribunal about the amount of costs to be paid under order 1 of these orders. The original tribunal shall consider the recommendation of the Tribunal Registrar and make an order as to the amount of costs to be paid under order 1 of these orders;
(v)In the event that the Tribunal registrar’s conference fails to achieve a recommendation, the matter is to be relisted before the original tribunal, which will consider the information provided pursuant to orders 3(i) and (ii) above and make an order as to the amount of costs to be paid under order 1 of these orders .
………………………………..
Ms J Lennard
Senior Member
REASONS FOR DECISION
On 24 October 2011 the Tribunal made the following orders in this matter:
1. The Applicant Ms Lanfranchi may keep her two Staffordshire Bull Terrier female dogs Zoe and Lola in the premises subject to the following conditions:
a. The dogs will be at all times confined to the unit or its back yard;
b. If the dogs are taken from the unit by Ms Lanfranchi, her partner or any other person the dogs will be on a lead.
c. Ms Lanfranchi is to ensure that the unit and its back yard are at all times secure so that no unauthorised entry by other persons or escape by the dogs is possible.
2. The Applicant is to file and serve any submissions on the question of costs within 14 days of the date of this order. The Respondent is to file and serve any response to submissions on costs within 28 days of the date of this order.
The Applicant filed submission on the question of costs on 31 October 2011 and the Respondent filed submissions on 21 November 2011.
General Principles as to Costs
a.Costs are intended primarily for compensation for the successful party, not punishment for the unsuccessful party;
b.Costs awards are said to rely upon the principle that a successful party is entitled to compensation for at least some of the expenses to which they have been put by reason of the litigation;
c.An award of costs is not intended to be a comprehensive compensation for all costs incurred by the successful party: what is compensated are the legal costs including disbursements incurred by the successful party in vindicating its legal rights. It does not compensate for the disruption, distress or other financial costs that may have been associated with the litigation.[1]
d.Where there is a statutory conferral of the power to award costs, courts and tribunals exercise a discretion. That discretion is absolute and unfettered unless constrained by statute. It must be exercised judiciously, not arbitrarily.[2]
Costs in ACAT
[1] David Bamford, Principles of Civil Litigation, Lawbook Co, 2010 at [11.60]
[2] Op cit at [11.50]
Sections 48 and 49 of the ACT Civil and Administrative Tribunal Act 2008 provide:
48 Costs of proceedings
(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; or
(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.(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.
49 Costs for contravening an order
(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.
(2) In deciding whether it is in the interests of justice to award costs, the tribunal must consider the following:
(a)whether the contravention was deliberate or could easily have
been avoided;(b) whether (and if so, the extent to which) the contravention has
affected the tribunal’s ability to hear the application promptly;(c)the importance to the community of people being able to
afford to bring applications to the tribunal.(3) The tribunal may consider any other relevant matter.
(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.
In Mainore Pty Ltd & Act Planning And Land Authority & CIC Australia Pty Ltd (Administrative Review) [2011] ACAT 24 (17 March 2011), ACAT set out the following principles in relation to the interpretation of ss 48 and 49:
i) Section 48 (1) of the Act provides the Tribunal with a starting point or presumptive rule that each party must bear their own costs. That presumptive rule is qualified by the proviso unless this Act otherwise provides. The Act does otherwise provide in section 48, subsection 2 and section 49.
ii) The departure from the presumptive rule permitted in
subsection (2) and section 49 is prescribed, limited and, for the most part, generally speaking, relates to the conduct of a party to the proceedings.iii) The concluding words of section 48 (1), or the Tribunal otherwise orders, confers upon the Tribunal a discretion which may be exercised in addition to, but not inconsistently with, those set out in section 48 (2) and section 49 of the Act.
iv) The closing words of the provision confer upon the Tribunal a very wide discretion. The Tribunal must be satisfied that there are circumstances or matters of sufficient weight which justify a departure from, or overcome, the presumptive rule and that it is fair, reasonable and or just to do so. The Tribunal noted that a test of exceptional circumstances would be an unacceptable fetter on the discretion at (at 59).
v) In considering what factors are to be applicable to the wide discretion provided for in the concluding words of section 48 (1), no particular focus, such as the nature of the proceedings is to be necessarily of determinative or presumptive weight.
Application of discretion in this matter
The Applicant submits that the following factors should be viewed by the Tribunal as sufficient to justify a departure from the presumptive rule that each party bear their own costs:
i) The evidence of Dr Hassett was a critical factor in the case and that evidence, in a written report dated 28 February 2011, was attached to the Application filed on 13 July 2011, and therefore available to the Respondent;
ii) The Respondent failed at the hearing to provide any evidence to support the conclusions of the executive committee as expressed in the minutes of the meeting to consider the application for permission to keep the dogs;
iii) The Applicant’s solicitors had made an offer to settle the dispute in a letter dated 30 August 2011. This offer was on terms similar to the orders eventually made by the Tribunal;
The Respondent replied that there were no factors to justify a departure from the standard presumption, and stated:
i) The Respondent was not obliged to accept the evidence of Dr Hassett and considered her report to be ‘personal opinions’;
ii) That the Respondent did provide evidence of attacks by Staffordshire bull terriers, statistics on the percentage of attacks by this type of dog in Australia and other countries, and the restrictions that can be placed on this type of dog.
iii) That the Respondent never claimed that the dogs were unsuitable for apartment living;
iv) The letter of 20 August 2011 was not seen as a serious effort to compromise but was seen as an ultimatum;
v) The Respondent has acted reasonably at all times, in good faith and in the best interests of the residents it represents.
The Tribunal notes that the Respondent’s submissions on costs were not prepared by Mr Mann, who had represented the Owners of Unit Plan 806 in the hearing, but by Ms Day, another member of the executive committee. This may explain why the submissions summarised in ii) and iii) of paragraph 6 above are factually incorrect. The evidence before the Tribunal at the hearing did not accord with that claimed in ii), the minutes of the executive committee which were before the Tribunal at the hearing state the type of dog is unsuited to unit/apartment living especially when there are two of them.
Is the tribunal satisfied that there are circumstances or matters of sufficient weight which justify a departure from or overcome the presumptive rule and that it is fair, reasonable and or just to do so?
The Tribunal notes that no one factor is determinative of this issue and takes into account the following factors:
a)The Applicant did not provide all of the evidence she produced at the hearing to the Respondent in her application for permission to keep two dogs in her unit;
b)The Applicant did not attempt, prior to making an application to ACAT, to provide further information to the executive committee nor seek to make another application to them for permission to keep the dogs;
c)The Applicant did provide in her application to ACAT a great deal of information about her dogs, as well as a report from Dr Hassett which specifically addressed the reasons given by the executive committee for their refusal of permission to keep the dogs. This information was available to the Respondent from July 2011 and was in their possession at the time of the offer of settlement;
d)The executive committee did not provide in the minutes, or later at the hearing, any relevant or probative evidence to substantiate or support the reasons given for their refusal of permission to keep the dogs;
e)The Applicant did make an offer to settle on terms and in that the offer specifically stated that the offer was made in accordance with the principles in Calderbank v Calderbank [1975] 3 WLR 586 and that they would be seeking costs in the event of the offer being refused and the Applicant succeeding at the hearing. ACAT notes that the existence of a Calderbank offer is not determinative of the issue of costs and is but one factor to be taken into account in considering an application for costs;
f)There was no response from the Respondent or the executive committee to the offer to settle on terms, and, there was no evidence before the Tribunal at hearing, or in the submissions in relation to costs, to indicate that the offer to settle on terms had been conveyed to the owners generally;
g)The orders of the Tribunal were not significantly different from the terms contained in the offer to settle; and
h)The Tribunal found after hearing the matter that the executive committee had failed to properly inform itself prior to making the decision to refuse permission to keep the dogs. It had failed to consider relevant matters and had taken into account irrelevant matters. The decision was not based on a reasonable consideration of the issues, but was based on erroneous assumptions, not supported by evidence or information. It was thus a decision that was not based on sound judgement and was unreasonable.
In all the circumstances the Tribunal is satisfied that there are circumstances or matters of sufficient weight which justify a departure from the presumptive rule. It is fair, reasonable and or just that the Respondent should pay some of the costs of the Applicant. In the circumstances it would not be fair or reasonable for the Respondent to be liable to pay all of the costs of the Applicant, but it is fair, reasonable and just that they pay costs incurred by the Applicant following the letter of offer to settle on terms. The Respondent failed to give timely, due and proper consideration to both this letter and the information contained in
Dr Hassett’s report attached to the application, and, in particular, the executive committee did not give proper consideration to the letter of 30 August. The letter sent by the executive committee to all owners except Ms Lanfranchi demonstrated this failure to take into account the information contained in
Dr Hassett’s report and the failure to respond appropriately to the offer to settle on terms.
………………………………..
Ms J. Lennard
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT:
RESPONDENT:
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S:
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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