Macdonald Contractors (Australia) Pty Ltd v Chief Commissioner of State Revenue

[2007] NSWADT 56

CITATION:	Macdonald Contractors (Australia) Pty Ltd v Chief Commissioner of State Revenue [2007] NSWADT 56
DIVISION:	Revenue Division
PARTIES:	APPLICANT Macdonald Contractors (Australia) Pty Ltd RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	056121
HEARING DATES:	15 January 2007
SUBMISSIONS CLOSED:	23 January 2007
DATE OF DECISION:	12 March 2007
BEFORE:	Verick A - Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Taxation Administration Act 1996
CASES CITED:	Cachia v Hanes (1994) 179 CLR 403 Charteris v General Manager, Leichhard Municipal Council (No 2) (GD) [2001] NSWADTAP 39 Commissioner of Police, NSW Police v Snape (No.2) (GD) [2006] NSWADTAP 35 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Director-General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6 EG (No 2) v Commissioner of Police, New South Wales [2004] NSWADT 226 Joliffe v Commissioner of Police, NSW Police (No 2) [2004] NSWADT 108 KR v St Vincent’s Hospital [2004] NSWADT 85 Latoudis v Casey (1990) 170 CLR 534 Oshlack c Richmond River Council (1998) 193 CLR 72 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 Slack v Leeds Industrial Cooperative Society Ltd [1923] 1 CH 31
REPRESENTATION:	APPLICANT I Macdonald, agent RESPONDENT I Latham, barrister
ORDERS:	The application for costs is refused

Background

1 This matter came to the Tribunal as an application to review an objection decision made by the respondent in relation to objections to pay-roll tax assessments. It was part heard when the parties sought an adjournment to have the matter settled without further troubling the Tribunal. After a number of adjournments the matter was finally settled, largely in favour of the applicant. When this matter came up for a dismissal hearing, the applicant sought an order for costs against the respondent.

2 The applicant’s claim for costs is not based on the final outcome of the settlement, which was reached by the respondent generally accepting the applicant’s submission in relation to the status of certain contractors that had been included in the assessments as common law employees by the respondent. The claim for costs is largely based on the delays caused by the respondent’s solicitors in agreeing to the final settlement figures.

3 The applicant also seeks costs on the grounds that the respondent should not have commenced a recovery action in relation to the pay-roll tax debt that was subject of the objection decision. The applicant alleges that in an affidavit to support the recovery claim a solicitor acting for the respondent had made a statement “that was not truthful”. The affidavit was sworn by an officer employed by the respondent in which she had stated that there was “no genuine dispute about the existence or amount of the debt (or debts)” that was subject of the recovery action.

4 The applicant has lodged a claim for a total amount of $22,279.00 for costs. The claim is in respect of $8,745.00 for work done by the applicant’s accountant from January to November 2006, $12,470.00 for time spent on this matter by the Managing Director of the applicant and $1,064.00 for work done in the office of the applicant to locate necessary documentation to support its case.

Legislative provision and case law

5 The Tribunal has jurisdiction to award costs under section 88 of the Administrative Decisions Tribunal Act 1997 (“the Act”). Section 88 provides:

“ 88 Costs

(1) 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 there are special circumstances warranting an award of costs.

(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 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.”

6 Costs under section 88 are to be awarded only if the Tribunal is satisfied that there are special circumstances warranting an award of costs. As held by this Tribunal in Joliffe v Commissioner of Police, NSW Police (No 2)[2004] NSWADT 108 the “Tribunal’s power to award costs is a discretionary power” which must be exercised in “a two staged process”. It is first essential that the party seeking costs must identify “special circumstances’. The Tribunal must, as a second stage, “find that those ‘special circumstances’ warrant the awarding of costs”.

7 The question whether a circumstance is a special circumstance is essentially a question of fact. In EG (No2) v Commissioner of Police, New South Wales [2004] NSWADT 226 “special circumstances” were described by the Tribunal as “circumstances, which are out of the ordinary; not necessarily circumstances which are extraordinary or exceptional”.

8 The President of the Tribunal has issued on 9 October 2006 an updated Practice Note Number 12 dealing with “Costs” “to advise parties of the law and usual practice of the Tribunal in relation to costs”. In the Practice Note the President has set out the following as special circumstances that may justify a costs order:

“The examples are not exhaustive:
- whether a party has conducted the proceedings in a way that disadvantaged another party to the proceeding by conduct such as-

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse

(ii) failing to comply with this Act, the regulations, the rules or enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceedings;

- whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings;

- 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;

- in matters under the Retail Leases Act 1994 where a party lodges an unconscious conduct claim instead of a retail tenancy claim and it is found that there was no basis for the unconscious conduct claim;

- where an appeal is lodged and the Appeal Panel considers the appeal was without any real prospect of success.”

9 As indicated by the President, the list of special circumstances set out in the Practice Note is “not an exhaustive” list. The New South Wales Court of Appeal in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 has suggested recently another “special circumstance”. In considering costs, the Court of Appeal regarded the conduct of the appellant, a landowner, in refusing to recognise the existence of a retail shop lease granted to the respondent by the previous owner, in failing to register the lease and in withholding consent to the assignment of the lease, “as clearly out of the ordinary and grossly unreasonable so far as the respondent was concerned”, which the Court held constituted “special circumstances” and warranted a costs award in favour of the respondent under section 88 of the ADT Act.

10 In making this order Santow JA (with whom Mason P and Brownie AJA agreed) made the following observations:

‘60 It is not necessary to determine whether in the circumstances the appellant committed equitable fraud. In my view it suffices that the conduct of Cripps and Jones, in relying upon their status as the registered proprietors of the freehold and doctrine of indefeasibility of title to wrongly deny registration and consequently assignment of the lease, so acted as by their conduct to give rise to special circumstances; that is, circumstances that were clearly out of the ordinary and grossly unreasonable so far as the respondent tenant was concerned. On the one hand, the Tribunal correctly concluded that the respondent, through no fault of its own, has been placed in the situation where it has been forced to pursue this litigation. Yet it still failed to find special circumstances. With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances here applied. For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of “ serious unfairness ” is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.’

11 There are “boundaries on use of costs power”.

12 In Raethel v Director-General, Department of Education and Training [2000] NSWADT 56, in considering whether costs can be awarded to punish agencies for maladministration, the President of the Tribunal made the following useful observation:

“ Boundaries on Use of Costs Power

56 In this case the applicant proceeded in the usual way, and dealt directly with the agency. The agency dealt with her in a way, which she regards, as highly unsatisfactory. The applicant’s submissions seek to use the costs power as a sanction for poor administration.

57 To use the costs power as some kind of sanction to punish agencies for poor administration would, I consider, involve the error condemned frequently by the courts of using costs sanction for punitive rather than compensatory purposes: Latoudis v Casey (1990) 170 CLR 534 at 542-3 per Mason CJ; and at 567 per McHugh J. The oversight body for bad administration in government is the Ombudsman’s office. This Tribunal only becomes involved in the issue of bad administration to the extent that statutory procedures pertinent to an application may not have been observed.

58 If submissions of the kind made in this case were to be entertained the potential would exist for costs application to provide the basis for a general inquiry into the way in which the agency dealt with the applicant. In this case, for example, the submissions on behalf of the applicant traversed some requests that at the end of the day did not give rise to an application for review in the Tribunal.

59 It would involve an unreasonable diversion of the Tribunal’s limited resources for it to be called upon to look so broadly at the background to an application including matters not providing any foundation for the application.”

13 In Charteris v General Manager, Leichhardt Municipal Council (No2) (GD) [2001] NSWADTAP 39, the Appeal Panel of this Tribunal reiterated the view expressed by the President in the above case “that caution must be observed in allowing costs applications to become a vehicle for the general scrutiny of the conduct of one of the parties prior to the commencement of the litigation”. The Appeal Panel went on to make the following observations as to what circumstances may warrant costs for pre-litigation conduct of one of the parties:

“26 On the other hand, as acknowledged in Raethel and in the decision under appeal, there may be circumstances where it is appropriate to have regard to the pre-litigation conduct of one of the parties. We agree with the comments of McHugh J in Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin (1997) 186 CLR 622 at 624-625, albeit made in relation to cases disposed of without hearing (citations omitted):
‘In some cases … the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence litigation.’”

14 A further important “boundary” in awarding costs is that costs have to be confined to the application and the proceedings of the matter. Subsection 88(4) allows “(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”. In Raethel, the Tribunal, in rejecting the applicant’s submission that the subsection extends to costs of “events and circumstances that bring about or cause the application”, said:

“49 In approaching the question of the meaning of ‘proceedings giving rise to the application’, the Tribunal considers it useful to look to the object of s 88. The object is to set a rule as to ‘costs’. That expression (as already) noted refers to costs connected with obtaining legal representation. With that as background, the term ‘proceedings’ when used to refer to events antecedent to the proceedings in the Tribunal should be construed as referring to procedures of a kind where legal representation might be reasonably likely to play a part.

50 That approach lends support to the interpretation suggested by counsel for the agency, that the term ‘proceedings’ refers to a process with characteristics of strict formality. The example he gives is, I consider, a good one.

51 In the disciplinary context, the proceedings that occur at the prior stage to any action being taken in a public tribunal are usually affected by a high degree of formality, and are acknowledged to have significant implications for the member of the profession under investigation and inquiry. A formal procedural framework is laid down by statute and subordinate instruments. Principles of natural justice apply. Legal representation would be permitted unless unequivocally ousted by statute.

52 If a broader interpretation of the kind advocated by the applicant were to be attached to ‘proceedings’ then s 88(4)(b) would cover any decision-making procedure which is undertaken by an agency before a matter reaches the Tribunal. Counsel for the applicant sought to confine his submission to the context of the FOI Act, but it is difficult to see what distinction could reasonably be invoked to prevent the logic which supports his position in that regard being extended to all agency procedures that involve the making of decisions subject to review by the Tribunal. The objectives of the FOI Act and those of the Tribunal Act, as they seek to impact on government administration, are similar.

53 I am satisfied that the expression ‘proceedings giving rise to the application’ does not cover the entire administrative process that occurs in agencies leading to the making of decisions that are capable of being the subject of an application for review to the Tribunal.

54 I consider that a narrower view of the expression ‘proceedings giving rise to the application’ along the lines that I have indicated is more appropriate. It is an expression that, at most, embraces a process of such formality that consideration of natural justice would permit a person to seek and be granted legal representation. In its merits review work the Tribunal has encountered instances of that kind, typically in relation to regulation of occupations or professional discipline.”

15 Costs are also only awarded to litigants who are legally represented.

16 In Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6, in an application for costs by an applicant who appeared in person, the President (on behalf of the Appeal Panel) in handing down an ex tempore decision, held that:

“7 The application is made by an unrepresented party and I explained in the course of submissions to Mr Simpson, the position is (as is reflected in the decision of Raethel v Director-General, Department of Education and Training [200] NSWADT 56) that the purpose of the award of costs is to assist parties in respect of the engagement of legal representation. There is clear authority that costs orders cannot be made in favour of unrepresented applicants in respect of (what might be described as) the inconveniences and loss of income associated with their attendance at proceedings to represent themselves: Cachia v Hanes (1994) 179 CLR 403. [Now see also, Atlas v Kalyk [2001] NSWCA 10.] As I understand the position, Mr Simpson did not press any claims in those categories.

8 However, he did press claims in respect of expenses associated with the proceedings, and whilst we have not had the opportunity today to look at any authority on that question our view is the same as that expressed by counsel for the agency, Mr Singleton. That is that it would be a proper exercise of the costs’ discretion in respect of an unrepresented applicant to compensate the applicant in regard to out-of-pocket expenses of the kind that Mr Simpson described which include, for example, photocopying and postage and obtaining of professional typing services.”

17 The applicant’s Managing Director, Mr Macdonald, who conducted the case for the applicant has, in written submissions, identified the “special circumstances” in this matter as “the costs of preparation, evaluating, corresponding etc each time the Crown Solicitor got the case adjourned”. Mr Macdonald also confirmed in the submissions that “even though we succeeded about 90%”, the claim for costs was for “costs of the inordinate delays”.

18 Mr Macdonald further contended that “the proceedings have been ‘unreasonably’ delayed because the method of calculation was agreed after our witnesses were examined and therefore the result was a 5 minute calculation”. Reliance is placed by Mr Macdonald on the decisions of the Tribunal in Joliffe where the Tribunal had observed that “where one party causes another party to incur costs because of unreasonable delays… an award of costs may be warranted” and Commissioner of Police, NSW Police v Snape (No .2) (GD) [2006] NSWADTAP 35, where the Tribunal had held that special circumstances include “prolonging unreasonably the time taken to complete the proceedings”.

19 Mr Macdonald has also submitted that, although the applicant was not legally represented at the hearing, the applicant was nevertheless entitled to costs. He has cited passages from the dissenting judgments in Cachia v Hanes to support his submission.

20 The applicant also seeks costs on the basis that a recovery action against the applicant for a pay-roll tax debt arising from the assessments the subject of the original application should not have been commenced by the respondent. The applicant submitted that, in that matter the claim was based on an affidavit that was “untruthful”.

21 The respondent’s counsel has in his written submissions, responded as follows:

“As stated in the oral submissions on behalf of the Chief Commissioner, there is no suggestion that there was a failure to comply with the orders of the Tribunal or the Act. It cannot be said that there were any unreasonable adjournment or that the proceedings were unnecessarily prolonged given that all the adjournments were by consent. There is no suggestion that there was any attempt to deceive. The arguments put by the Chief Commissioner cannot be described as vexatious or having no tenable basis …”

22 In relation to the alleged delay in finalising the settlement, counsel for the respondent has submitted as follows:

“The Chief Commissioner accepts that further time was required after the hearings had finished while the figures in question were verified in respect of the subject companies involved and an agreed figure reached. Such a process is a proper one in settling a matter. It is not (as seems to be suggested) an example of poor administration but of the opposite. In any event, costs are to be used for compensatory purposes not for punitive purposes (see Joliffe v Commissioner of Police (No 2) [2004] NSWADT 108 at [14]. The adjournments in this case have been by consent. Any delay in reaching agreement as to calculations since the end of the hearings has been properly compensated by the payment of interest pursuant to the provisions of the Taxation Administration Act 1996 .”

23 In addition, the respondent’s counsel has submitted that the affidavit, which supported the respondent’s recovery action “is not relevant to these proceedings and should not be taken into account”.

24 The respondent’s counsel has also submitted that in any case the applicant, who was not legally represented, is not entitled to costs including out of pocket expenses.

Discussion

25 This matter raises a fairly important jurisdictional issue. This issue, essentially a preliminary issue, is whether the matters identified by the applicant as “special circumstances” are matters that can be regarded as being part of or incidental to the proceedings before the Tribunal or part of or incidental to the application made to the Tribunal in this matter.

26 As was pointed out by the President in Raethel, “ordinarily the discretion to award costs is confined to costs incurred in relation to the proceeding before the court or tribunal” but that in the ADT Act “there is an extended definition of ‘proceeding’.” The extended definition is found in s 88(4) which provides as follows:

“(4) In this section costs includes:
(a) costs of or incidental to the proceedings in the Tribunal, and

(b) costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.”

27 In Raethal the Tribunal accepted “that the core meaning of ‘proceedings’ has to do with formal proceedings of a court-like character” and also held that “the expression ‘proceedings giving rise to the application’ does not cover the entire administrative process that occurs in agencies leading to the making of decisions that are capable of being the subject of an application for review to the Tribunal”.

28 It was also acknowledged in Raethal that “there may be circumstances where it is appropriate to have regard to the pre-litigation conduct of one of the parties” in awarding costs. A circumstance that may give rise to such a consideration is where “ the court may be able to conclude that that one of the parties has acted so unreasonably that the other party should obtain the costs of the action”: per McHugh J in Ex parte Lai Quin.

29 In this matter, there was no suggestion by the applicant, nor was any evidence produced by the applicant, to demonstrate that the respondent had acted unreasonably at the pre-litigation stage in this matter.

30 It is also not clear as to the relevance, if any, of the contents of an affidavit supporting a claim for recovery of a tax debt against the applicant by the respondent. That was an independent action against the applicant and was in no way connected with the application to this Tribunal. Under the provisions of the Taxation Administration Act 1996 the respondent is entitled to recover outstanding pay-roll tax not withstanding an objection or an application to this Tribunal or the court for a review of an objection decision in respect of the assessment the subject of the recovery action. The Tribunal agrees with the submission made by the respondent’s counsel that the affidavit should not be taken into account in assessing whether there were any special circumstances. The affidavit simply has no relevance to the application or the proceedings in this matter.

31 The next question that needs to be considered is whether the several adjournments, which, the applicant claims, caused the “inordinate delays” in settling this matter, are part of the proceedings or the application in terms of s 88(4).

32 The principal matter was part heard when it came up for hearing before the Tribunal on 16 June 2006 and, after hearing further evidence, it became obvious to the parties that the matter could be resolved without further troubling the Tribunal. By consent, the parties sought an adjournment to settle the matter. The matter was placed in the directions list and came up for directions on 21 July 2006, 15 August 2006, 5 September 2006, 3 October 2006, 7 November 2006, and 1 December 2006. At the directions hearings on 21 July 2006, 15 August 2006, 5 September 2006 and 5 October 2006, the matter was mentioned by the respondent on behalf of the applicant and adjourned on each occasion by consent. On 7 November 2006, there was no appearance by the applicant and the matter was adjourned to 1 December 2006. On 1 December 2006, the parties were represented and the matter was listed for a hearing on 15 January 2007, when the Tribunal heard submissions on costs.

33 The parties sought the adjournments on each occasion by consent and on the basis that the settlement negotiations had not been finalised. The applicant, through its Managing Director, claims that the matter could have been very speedily settled and that there were unnecessary delays in agreeing at the final tax amount.

34 The Tribunal is not privy to the discussions that occurred in this matter between the parties to settle the matter. Neither were those matters, in any sense, part of the proceedings. The respondent did not seek an adjournment because the respondent was not in a position to proceed with the hearing of this matter, nor for any other reasons connected with the proceedings before the Tribunal such as those set out in the Practice Note Number 12. The adjournments were by consent and were to allow the parties to have independent discussions outside the Tribunal to settle the matter.

35 There may have been some maladministration, either at the respondent’s office or at his solicitor’s office that may have resulted in the “inordinate delays” in settling the claim Clearly six months to settle a simple calculation is quite poor public administration. But as was pointed out by the Tribunal in Raethel, the costs power cannot be used “as some kind of sanction to punish agencies for poor administration”. Also the delays were not caused by adjournments, which could properly be considered as part of the proceedings.

36 The claim for costs is, in part, for fees paid by the applicant to its accountant “in relation to the additional work involved with the OSR objection” and, in that sense, the fees was a pre-litigation expense. The applicant has not shown any unreasonable conduct on the part of the respondent in dealing with the applicant’s objection. A large amount is claimed for the time spent by the Managing Director. It is not clear if a substantial part of that claim relates to the objection exercise prior to the application to this Tribunal. The same would apply to the office expenses claimed by the applicant.

37 The applicant has not produced any evidence to support its claim that these expenses were directly incurred to attend to matters arising from the several adjournments. On the contrary, the only conclusion that the Tribunal can reach is that the total claim is largely in relation to the objection and in a small part for attending to the application to this Tribunal and the proceedings prior to the matter being adjourned. The applicant claims that the settlement could have been reached within a few minutes and in those circumstances it is difficult, in the absence of any evidence, to find that the applicant has incurred substantial costs to attend to matters arising from the adjournments.

38 On the other hand, if the applicant were seeking the costs of the application and proceedings because of the delays in reaching settlement, the claim would be for punitive rather than compensatory purposes.

39 The applicant has clearly failed to establish any special circumstances in this matter.

40 There is one other matter that remains to be addressed. That is, whether the applicant, who was not legally represented in this matter, is entitled to any costs under s 88 of the ADT Act.

41 Following the decision of the majority of the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 and Cachia v Hanes it is now well settled law that costs can only be awarded for fees and disbursements incurred in engaging legal representation in a court proceeding. As indicated in Raethel by the President of the Tribunal, that rule also applies to costs that can be awarded under s 88 of the ADT Act.

42 The applicant was not legally represented in this matter. The costs claimed by the applicant are largely made up of fees paid to their external accountant and the time spent on this matter by its managing director. The claim would, notwithstanding the other findings in this matter, fail as the costs claimed do not fall within the category of costs allowed under s 88 of the ADT Act.

43 There is, of course, a subsidiary question in relation to this issue. Is the applicant entitled to what has been described in cases as “out of pocket expenses” incurred in preparing for and attending the hearing? In an ex tempore decision in Simpson, the Appeal Panel, without having the opportunity “to look at any authority on that question” took the view that “it would be a proper exercise of the costs” discretion in respect of an unrepresented applicant to compensate the applicant in regard to out-of-pocket expenses … which include, for example, photocopying and postage and obtaining professional typing services” provided, of course, if there were special circumstances to make the award. The Appeal Tribunal allowed an amount of $70 to the applicant in that case as out-of pocket expenses.

44 The decision of the Appeal Panel has been applied by the Tribunal in KR v St Vincent’s Hospital [2004] NSWADT 85 where the Deputy President allowed an applicant resident in Queensland a total amount of $601.50 for expenses incurred for air fares, accommodation, food and for other miscellaneous items.

45 Both in Simpson and KR no authorities were cited to support the award of out-of-pocket expenses. It has been submitted in this matter by counsel for the respondent that the decision of the Appeal Tribunal in Simpson is not binding because “an expression of dicta made in the absence of authority largely on the basis of a concession by one of the parties … falls squarely into the category described by Lord Sterndale MR in Slack v Leeds Industrial Cooperative Society Ltd [1923] 1 CH 31 at 451 that -

Dicta are of different kinds and of varying degrees of weight. Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case, and is not really present to the judge’s mind. Such dicta, though entitled to the respect due to the speaker, may fairly be disregarded by judges before whom the point has been raised and argued in a way to bring it under much fuller consideration.”

46 Counsel for the respondent conceded that in Cachia v Hanes “the reference to the discretion of the taxing master would ordinarily imply a power to award out of pocket costs to a self represented litigant” but has argued that “the rest of the majority judgment militates strongly against any such power”.

47 This is an issue that requires further clarification but, unfortunately in the current, matter it is not necessary to conclusively deal with the issue. The claim for costs by the applicant are for direct costs and does not include any claim for out of pocket expenses. In that sense the issue does not arise. The applicant has, in any case, failed to establish special circumstances to warrant any costs including out of pocket expenses in this matter.

48 In passing, the Tribunal is persuaded to make the following comment. The ADT Act was introduced to establish a Tribunal that “is accessible, its proceedings are efficient and effective and its decisions are fair” and “to enable proceedings before the Tribunal to be determined in an informal and expeditious manner”. Litigants are largely made up of unrepresented individuals seeking review of decisions made by government agencies. Against that background, it seems odd that in awarding costs, the Tribunal is subject to strict court rules. There is some justification for out-of-pocket expenses including some costs to be allowed in cases where an unrepresented applicant can establish special circumstances. If, as suggested by the fairly persuasive submission made by counsel for the respondent in this matter, there is a lacuna in the current law, then there is a clear need for the government to amend s 88 to include such a power.

Decision

49 This matter can be disposed of on the basis of any one of the following three bases:

(1) the applicant’s claim in relation to the delay arose out of consent adjournments, which were strictly not part of the application or proceedings in terms of s 88(4) of the ADT Act;

(2) the applicant failed to establish any “special circumstances” as required by s 88(1) of the ADT Act; and

(3) the applicant was not legally represented and is not entitled to costs under s 88 of the ADT Act.

50 The applicant’s application for costs is accordingly refused.