Riley v St Vincent De Paul Society Canberra/Goulburn No.2 (Appeal)

[2025] ACAT 17

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RILEY v ST VINCENT DE PAUL SOCIETY CANBERRA/GOULBURN No.2 (Appeal) [2025] ACAT 17

AA 26/2024 (RT 1252/2023)

Catchwords:               APPEAL – costs – proper interpretation of section 48(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 – unreasonable delay and obstruction – circumstances which fall within those terms – need for causal element between conduct and costs – causal element satisfied if costs originate in or spring from unreasonable delay or obstruction

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 32, 48(2)(b) and (c)

Heritage Act 2004
Planning Act 2023
Urban Forest Act 2023

Cases cited:Amlin Corporate Member Ltd v Austcorp Project (No 20) Pty Ltd [2014] FCAFC 78

Auburn Municipal Council v Ivanoff (1964) 10 LGRA 258
Bell v De Castella [2013] ACAT 66
Carew-Neill v Bower [2016] ACAT 54
CSR Limited v Adecco (Australia) Pty Limited [2017] NSWCA 121
D’Silva & Anor v Canberra Strata Pty Ltd& Anor [2022] ACAT 79
Smith v J & C Whyte Family Trust [2016] ACAT 132

Tribunal:Acting Presidential Member G Curtin SC

Date of Orders:  7 March 2025

Date of Reasons for Decision:      7 March 2025

Date of Publication:  14 March 2025

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 26/2024

BETWEEN:

ADRIAN RILEY
Appellant

AND:

ST VINCENT DE PAUL SOCIETY CANBERRA/GOULBURN
Respondent

APPEAL TRIBUNAL:        Acting Presidential Member G Curtin SC

DATE:7 March 2025

ORDER

The Tribunal orders:

1.The respondent’s application for costs is dismissed.

………………………………..

Acting Presidential Member G Curtin SC

REASONS FOR DECISION

Introduction

1.On 17 December 2024, I dismissed Mr Riley’s appeal.

2.The respondent now seeks an order that Mr Riley pays its costs pursuant to sub-sections 48(2)(b) and (c) of the ACT Civil and Administrative Tribunal Act 2008 (the Act).

3.Section 48(1) of the Act says that parties to an application must pay their own costs unless the Act or another territory law otherwise provides.

4.Sub-sections 48(2)(b) and (c) otherwise provide:

(2)     However—

(a)…

(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; …

The respondent’s submissions

The proper interpretation of section 48(2)(b)

5.In terms of legal principle, the respondent submitted that I should apply the interpretation of sub-sections 48(2)(b) set out in Bell v De Castella [2013] ACAT 66 (Bell), namely that costs may be awarded pursuant to that provision in circumstances such as: a party pursuing a hopeless line of argument, refusing to make a concession that clearly should have been made, bringing an unmeritorious action, bringing an action in bad faith, or as an abuse of process. Bell held that bringing an action in bad faith may be demonstrated by:

i) unsatisfactory evidence, that is where the assertions of the party are not supported by any evidence which is relevant, reliable or probative;

ii) where a party commences an action for a primary motive not related to the legal issues;

iii) where a party commences multiple actions based upon the same or largely similar facts;

iv) where the proceedings had no chance of success, and the applicant knew that; and

v) conduct of a party during the time the Tribunal is dealing with the matter where that conduct is not properly related to the progress of the matter.

6.That holding was applied by the same member who decided Bell in Carew-Neill v Bower [2016] ACAT 54 (Carew-Neill), but has not been followed in any subsequent case that I can find, and none has been cited by the respondent.

7.The holding in Bell (and Carew-Neill) was not followed at the appellate level in the tribunal in Smith v J & C Whyte Family Trust [2016] ACAT 132 (Smith). In that case, Presidential Member McCarthy said he did not agree with the holding in Bell for the simple reason that the terms of sub-section 48(2)(b) did not allow for the wider circumstances described in Bell.

8.I agree with the holding in Smith and disagree with the holding in Bell.

9.Sub-section 48(2)(b), in terms, only applies when then is “unreasonable delay or obstruction” and I cannot see how the wider circumstances described in Bell fall within those statutory terms.

10.As to the meaning of “obstruction”, I agree with the holding in Smith at [143]–[148], and particularly the application of the meaning given to that word in Auburn Municipal Council v Ivanoff (1964) 10 LGRA 258 at 260, namely that:

The verb ‘obstructs’ of course can, in various contexts, have different shades of meaning, but a common and natural meaning of the verb ‘to obstruct’ is to impede or hinder, to retard or to oppose the activities of, or to oppose the course of conduct of a person who is seeking to achieve a particular purpose. Those meanings which I have suggested seem to me to be perfectly natural and straightforward synonyms, as it were, of the verb ‘to obstruct’.

11.I also agree with Smith at [140] that the word “unreasonable” applies to “delay” but not to “obstruction”, because it would be a nonsense to differentiate between “obstruction” and “unreasonable obstruction” given the statutory context and the evident purpose sought to be achieved.

12.Smith was followed in D’Silva & Anor v Canberra Strata Pty Ltd& Anor [2022] ACAT 79 (D’Silva). I shall return to D’Silva shortly.

13.The other matter to note about sub-section 48(2)(b) is that the costs sought must be causally linked to the unreasonable delay or obstruction alleged. That follows from the words “arising from” in the sub-section.

14.Few cases examine the words “arising from”; more examine “arising out of”. In the context of the Act, I see no material difference in meaning.

15.In relation to “arising from”, in Amlin Corporate Member Ltd v Austcorp Project (No 20) Pty Ltd [2014] FCAFC 78, Gleeson J, with whom Allsop CJ and Middleton J agreed, appeared to have treated the two expressions as meaning the same and requiring some causal linkage. Gleeson J said at [66]-[67]:

The expression “arising from” provides a causal linkage between the “Loss” and the “Claim”. In Walton v National Employers’ Insurance Assn [1973] 2 NSWLR 73 at 83, Bowen JA said in respect of an entitlement to indemnity “arising out of negligence in the conduct of the insured business as stockbrokers”:

Negligence in this context I take to mean a want of care or skill. I do not read it as referring in a technical sense to the tort of negligence. The policy is designed to protect the insured against the consequences of negligence in the conduct of the business of stockbrokers. The condition is met if the claim arises from a want of care or skill in the conduct of that business, whether the cause of action happens to be based on contract or tort. The words “arising out of” I take to mean originating in or springing from.

Bowen JA went on to point out that “arising” was a wider connector than “for” or “based upon”.

16.The expression “arising out of” has been judicially examined many times. It is interpreted broadly. In CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121, McColl JA, with whom Macfarlan and Simpson JJA agreed, said at [206]:

The words “arising out of” are well recognised as being of broad import. They require some causal or consequential relationship between the subject and the object, but do not require the direct or proximate relationship which would be necessary if the expression was “caused by”.

17.In my view, the expression “arising from” in section 48(2)(b) has the same meaning, namely that the claimed costs must have some causal or consequential relationship with the unreasonable delay or obstruction, although that connection need not be as direct or proximate as if the words “caused by” were used. Such costs may arise from unreasonable delay or obstruction if they originate in or spring from such conduct and need not be directly caused by such conduct.

18.After quoting extensively from Bell, the respondent referred to both Smith and D’Silva and submitted that “the interaction between s48 and s32 of the ACAT Act appears to be somewhat unsettled”. That submission was not expanded upon and there was no reference to any passages in Bell, Smith or D’Silva from which the submission was said to arise nor of any unsettled position as to the interaction of the two sections.

19.Smith provided at [142] that conduct, which Bell said fell within section 48(2)(b) — such as bringing an unmeritorious action, or bringing an action in bad faith or as an abuse of process — fell within section 32 and not section 48, and that costs in relation to such conduct fell to be determined “in the case of applications for review of a decision under one of the Acts stated in section 48(2)(d)”. D’Silva agreed with that statement at [24].

20.Section 32 does not provide for any award of costs. The relief it provides for, in sub-section (2), is to refuse to hear an application or part thereof, to dismiss the whole or part of an application, or to direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction.

21.Smith linked sections 32 and 48(2)(d) of the Act at [142] wherein it was said:

With respect, I do not agree with the views of the tribunal in Bell v De Castella and Rob De Castella’s Smartstart For Kids Ltd or in Carew-Neill v Bower, that delay or obstruction encompasses bringing an unmeritorious action, or where bringing an action amounted to bad faith or abuse of process. Conduct of that kind is dealt with separately in section 32 of the ACAT Act, and costs are not payable for such conduct except in the case of applications for review of a decision under one of the Acts stated in section 48(2)(d).

22.Of course, section 48(2)(d) is confined to applications for review under the Heritage Act 2004, the Planning Act 2023 and the Urban Forest Act 2023, and applies only if the tribunal had made an order dismissing or striking out an application for a review of a decision under one of those three Acts.

23.Turning to the present case, there is no interaction between section 32 and the claim for costs under sub-sections 48(2)(b) and (c).

24.The respondent submitted that, in so far as section 48(2)(b) is concerned, Bell should be preferred to Smith and D’Silva. I do not agree. Smith was decided at the internal appellate level and should be preferred to Bell. In addition, I think Smith was correctly decided. The terms of section 48 simply do not allow for the wider circumstances described in Bell.

25.The respondent also relied on section 48(2)(c), but there is nothing I need to say about that sub-section. Its terms are tolerably clear.

Factual submissions

26.The respondent submitted that the appellant’s appeal, and other applications referred to, had no proper basis, that costs were incurred by the appellant’s amendment to his grounds of appeal, that costs were increased because the appellant did not file submissions as directed, that associated proceedings (RT 1118/2024) were an abuse of process, that several interim applications were unmeritorious, that the appellant made many unfounded accusations, that the appellant misused the forum, and that what should have been a basic tenancy matter consumed 12 months of the Tribunal’s and the respondent’s time.

27.The appellant did not file any submissions although he was directed to do so.

Decision

28.There is some factual accuracy in the matters complained of by the respondent, but none of those matters identify obstruction of the necessary kind.

29.I would caution against too readily finding obstruction in the acts and omissions of self-represented litigants who are usually convinced of the correctness of their cause, and do the best they can whilst lacking the legal training or experience to prepare and prosecute their cases with the same degree of dispatch and efficiency as could be expected from legal practitioners. Some obstruction to the due dispatch of proceedings may result from honest but misguided efforts by self-represented litigants doing the best they can in a complex and unfamiliar environment.

30.Such conduct is to be contrasted with the type of conduct of which Smith gave a few examples at [127], namely sharp practice, withholding relevant information, half-truths, ambush, surprise and unreasonable delay.

31.In Mr Riley’s case, I gained the impression he was utterly convinced of the correctness of his cause and was highly motivated to argue any point that occurred to him in an effort to avoid the termination of his tenancy. Mr Riley also has had some mental health concerns over the years. In those circumstances, I do not assess any of the acts and omissions identified by the respondent as being obstruction in the relevant sense.

32.Nor do those acts and omissions amount to unreasonable delay. Some delay is to be expected in cases involving self-represented litigants, a feature parliament can be assumed to be aware of when designing a tribunal in which, not least because of the costs regime, the retaining of lawyers to represent parties is, on a practical level, discouraged. Presumably, that was why the qualifying word “unreasonable” was added to the word “delay”.

33.The tribunal’s costs regime was also designed so that those with fewer economic resources could access a body to resolve disputes they may have against others, without being hindered from doing so from the perceived need to retain legal practitioners, and some delay is to be expected from time to time in some of those cases.

34.There was some delay in Mr Riley’s matter. But after the appeal was set down for hearing before me, all of Mr Riley’s applications for adjournment or transfer to the Supreme Court were refused. There was no delay to the hearing of the appeal; the principal proceedings with which I am concerned.

35.Even were there some unreasonable delay, or obstruction, the respondent did not prove which costs were said to have originated from that conduct.

36.It is true that Mr Riley did not file submissions as directed. But I would not exercise the discretion given in section 48(2)(c) to order him to pay any costs occasioned by that default for two reasons. First, I am not persuaded that his failure to file submissions caused the respondent to file more comprehensive submissions than if Mr Riley had filed submissions. With no disrespect to Mr Riley, what material he has filed has historically been difficult to follow and has been of little assistance in deciding the factual and legal questions in dispute. It seems more likely to me that had Mr Riley filed submissions, the respondent’s submissions would have been little different. Second, the respondent did not prove the alleged extra costs incurred. That is, there is no evidence of what the submissions (and therefore the costs which would have been incurred) would likely have been had Mr Riley filed submissions, compared to the submissions which were filed. Without some evidence to that effect, I would have been unable to fairly determine that factual question.

Orders

37.I make the following orders:

(a)The respondent’s application for costs is dismissed.

………………………………..

Acting Presidential Member G Curtin SC

Date of hearing:  On the papers

Appellant:A Riley

Respondent:  C Sawley, Hicksons Lawyers