Metricon Qld. Pty Limited v Chief Commissioner of State Revenue
[2013] NSWADT 160
•17 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Metricon Qld. Pty Limited v. Chief Commissioner of State Revenue [2013] NSWADT 160 Hearing dates: 11 July 2013 Decision date: 17 July 2013 Jurisdiction: Revenue Division Before: G D Walker, Judicial Member Decision: By consent application withdrawn and dismissed; by consent order for costs as asked.
Catchwords: Costs order by consent -nunc pro tunc - power to make - factors relevant Legislation Cited: Administrative Decisions Tribunal Act 1997 Taxation Administration Act 1996
Civil Procedure Act 2005Cases Cited: Al-Hakim v Monash University [2000] VCAT 818
Commissioner of Taxes v Tangentyere Council Inc (1992) 83 NTR 32
Murray v Bayside CC [1999] VCAT 1327 Solid Investments Australia Pty Ltd v Greater Geelong CC [2005] VCAT 244 Styles v Murray Meats Pty Ltd [2005] VCAT 2142
Sweetvale v Minister for Planning [2004] VCAT 2000
Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117
Victoria v Bradto Pty Ltd [2006] VCAT 685 Vitalia Group Pty Ltd v Yarra CC [2000] VCAT 1691
Wentworth v Wentworth (1999) 4 NSWLR 300.Category: Principal judgment Parties: Metricon Qld Pty Ltd (Applicant)
Chief Commissioner of State Revenue (Respondent)Representation: Counsel
Dr Sorensen (Applicant)
I Young (Respondent)
Crown Solicitors Office (Respondent)
File Number(s): 126096
reasons for decision
Background
In this interlocutory application the parties by consent seek an order that the substantive proceedings be withdrawn and dismissed. They also seek a costs order of a kind for which there appears to be no direct precedent.
The applicant has withdrawn its application for review filed on 25 July 2012 which relates to the assessments contained in Land Tax Assessment Notice ID 1538278886 ("the assessment") for the 2009 and 2010 tax years.
The Supreme Court of New South Wales has granted the applicant approval to apply for a review of the assessment outside the 60 day time period prescribed by s 99 of the Taxation Administration Act 1996 ("the TA Act"). The applicant intends to apply to the Supreme Court pursuant to s 97(1) of the TA Act for a review of the assessment and has applied under s 97(2) of that Act for this tribunal's approval of the withdrawal of the application for review dated 25 July 2012 ("the Application") in order to enable the court to deal with the matter in conjunction with existing Supreme Court proceedings for review of the 2010 year reassessment and the 2011 and 2012 tax years.
The applicant has applied under s 73(5)(g)(i) of the Administrative Decisions Tribunal Act 1997 ( "the ADT Act") for the withdrawal and dismissal of the application. The tribunal has approved the withdrawal and dismissal of the substantive application126096, conditionally upon any order as to costs being made.
The applicant and the respondent have agreed that the successful party in the Supreme Court proceedings should have its costs in this tribunal in proceeding 126096. The applicant records its consent on the basis that as the only impediment to the tribunal making the order is the applicant's consent, then such consent is given.
In the present interlocutory application, therefore, the respondent seeks, with the applicant's consent, a costs order in the following terms: "Pursuant to s 88(1A) of the ADT Act, the costs of the proceedings in tribunal file number 126096 are to follow the final costs order made by the Supreme Court in the proposed Supreme Court proceedings".
It is settled law that the tribunal cannot issue an order that it is not empowered to make, even if both parties consent to it. The Northern Territory Court of Appeal so held in Commissioner of Taxes v Tangentyere Council Inc (1992) 83 NTR 32 at [35.20], [40.10]. The issue now before the tribunal is thus whether, notwithstanding the agreement of the parties, the tribunal has jurisdiction to make the order.
Consideration
Section 88(1A) is in almost identical terms to the corresponding Victorian provision, s 109 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). The Victorian provision has been described as conferring "a broad, sweeping" discretionary power that enables the tribunal to do its best to provide a just outcome, subject to the basic principle that each party will usually bear its own costs: Solid Investments Australia Pty Ltd v Greater Geelong CC [2005] VCAT 244 at [4]; Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 2000 at [17]. The scope of the power includes ordering a party to pay the costs of another party's unsuccessful costs application: Al-Hakim v Monash University [2000] VCAT 818, or ordering costs in circumstances where there was no jurisdiction to entertain the proceeding: Nazligul v AMP Investments Pty Ltd [1999] VCAT 469 at [11].
The power is not unlimited, however, and the tribunal has no inherent jurisdiction to award costs. The power must be found in the ADT Act or in an enabling enactment (cf Victoria v Bradto Pty Ltd [2006] VCAT 685 at [23]), and tribunal may deal only with the costs of the "proceedings before it", not awarding costs for expenses incurred before the proceeding was commenced, for example: Murray v Bayside CC [1999] VCAT 1327 at [49].
As Gillard J. explained in Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117 at [18] -- [20], the correct approach to the construction of the power involves a three-step process:
(i) The prima facie rule is that each party should bear their own costs of the proceeding.
(ii) The tribunal may make an order awarding costs, being all or a specified part of costs, only if it is satisfied that it is fair to do so. That is a finding essential to making an order.
(iii) In determining whether it is fair to do so, that is, to award costs, the tribunal must have regard to the matters stated in s 109(3). The tribunal must have regard to the specified matters in determining that question, and by reason of para. (e) the tribunal may also take into account any other matter that it considers relevant to the question.
The parties agree that the considerations in s 88(1A)(a) to (d) have no application in the present case. If the tribunal is to make the order sought, the power to do so must be found in para. (e).
Paragraph (e) is an independent consideration that operates to extend the range of matters to which the tribunal may have regard. It is not to be read down by reason of its position at the end of a list of more specific matters: see Vero, supra; Vitalis Group Pty Ltd v Yarra CC [2000] VCAT 1691 at [48]. As Byard SM pointed out in the latter case, "It would be contrary to the policy of empowering the Tribunal to do what is fair and just to read down such a general provision in such a way as to exclude unspecified considerations that are nevertheless relevant to that purpose": at [48].
In the present case there are several matters that are relevant to the costs issue within the meaning of s 88(1A)(e). One is that both parties are represented by counsel: Styles v Murray Meats Pty Ltd [2005] VCAT 2142 at [17].
Next, as Mr Young submitted, the cost arrangement was agreed to between two experienced litigants, each advancing its own interests in contested adversarial processes, as the conclusion of a "hard-headed bargaining process". A reliable guide to what is "fair" within s 88(1A), Mr Young added, is the parties' informed consent to an agreement arrived at in those circumstances. It may also be noted that the "forcefulness" with which proceedings have been conducted has been held relevant for the purposes of the paragraph: Prolisko v Knight [2006] VCAT 2046 at [18].
Further, the parties have agreed that the evidence filed in the tribunal proceedings, and the documents obtained under summons in the tribunal proceedings, shall be evidence in the Supreme Court matter. The tribunal has released the parties from implied undertakings in relation to such materials so as to give effect to the parties' agreement. As those materials will form part of the Supreme Court proceedings, it is fair that the costs associated with obtaining and preparing those materials also carry through to follow the ultimate costs order made by the Supreme Court.
Finally, it may be doubted whether the Supreme Court has the power to order costs in ADT proceedings. The Civil Procedure Act 2005 s 98 defines "costs" to include, "in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed". But under s 97(2) of the TA Act, ADT proceedings such as the present ones are neither removed or transferred to the court, but rather "withdrawn" and commenced anew in the Supreme Court. Consequently, if the tribunal were not to make the order sought by the parties and the definition of "costs" in the Supreme Court does not extend to proceedings withdrawn and recommenced afresh, those costs could never be recovered. As Santow J. pointed out in Wentworth v Wentworth, that would be "a powerful argumentum ab inconvenienti": (1999) 4 NSWLR 300 at [23].
In those circumstances it is proper for the tribunal to conclude that it is "fair" to depart from the usual prima facie position that each party should bear its own costs.
As was noted above, the costs power in s 88(1A) is a broad and sweeping one. Nothing in that provision or elsewhere in the ADT Act appears to present any impediment to making an order that operates on a nunc pro tunc or contingent basis.
The substantive application it is thus withdrawn and dismissed and a costs order is made in the terms set out in paragraph 6 above.
Decision last updated: 17 July 2013
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