Russell v The Owners Corporation Up 585 Kingston (Unit Titles) - [2020] ACAT 101

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RUSSELL v THE OWNERS CORPORATION UP 585 KINGSTON (Unit Titles) [2020] ACAT 101

UT 31/2019

Catchwords: UNIT TITLES – application for a merits review of the decision of the owners corporation to install a ladder to the roof of the complex located on the outside wall of the applicants unit noise and privacy concerns after installation of the ladder – whether section 129(1) of the Unit Titles (Management) Act 2001 can be used as a basis for the Tribunal to make orders addressing a common law nuisance – application from respondent for costs when most grounds of the application withdrawn on day of hearing – both applications dismissed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 42, 48, 49

Unit Titles (Management) Act 2011 ss 35, 57, 125, 129, sch 1

Cases cited:Ashby v Commonwealth (No 4) [2012] FCA 1411
Blackshaw & Anor v Campbell [2019] ACAT 41
Bonansea v the Owners – Unit Plan no 421 [2019] ACAT 10
CIC Australia Ltd v ACT Planning and Land Authority; Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96
Bell & De castella And Rob De Castella’s Smartstart For Kids Ltd [2013] ACAT 66
Newham Business Brokers Pty Ltd v ACN 120 453 744 Pty Ltd & Anor [2020] ACAT 73
Smith v J&C Whyte [2016] ACAT 132
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) HCA 63
Riley v the Owners Corporation Unit Plan 706 [2018] ACAT 99

Tribunal: Presidential Member H Robinson

Date of Orders:  7 December 2020
Date of Reasons for Decision:         7 December 2020
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          UT 31/2019

BETWEEN:
LYNN RUSSELL
Applicant

AND:
THE OWNERS CORPORATION UP 585 KINGSTON
Respondent

TRIBUNAL: Presidential Member H Robinson

DATE:7 December 2020

ORDER

The Tribunal orders that:

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

………………………………..
Presidential Member H Robinson

REASONS FOR DECISION

The applicant in this matter is the owner of a unit in the respondent owners corporation (the OC). By way of application she sought review of and orders in relation to a substantial number of actions of the OC. The application proceeded in stages, with separate hearings on several distinct issues. Some of those issues have been determined or finalised by consent, but a majority were withdrawn on the morning of the final hearing. At the conclusion of that final hearing, only two matters remained to be determined, and I reserved to decide them in chambers. Those two issues, which are the subject of these reasons, were:
(a)a merits review of the decision by the OC to install a ladder to the roof of the complex, and to locate it on the outside wall of her unit; and
(b)the OC’s application for the costs.

The parties

The OC is the owners corporation for Unit Plan 585. This is a unit complex located in Kingston in the ACT. It consists of a series of two-storey terrace style units with lower level or underground parking. The OC was represented throughout by Ms Ruchsen of Tisher Liner.
The applicant is the owner of a unit in the OC. She represented herself for most of the proceedings, but instructed a solicitor, Mr Falcetta of Trinity Law for the final hearing.

The hearing process

The applicant filed this application on 18 November 2019, seeking urgent orders. Directions were subsequently made to prepare the matter for hearing.
On 10 February 2020, the Tribunal, at the applicant’s request, amended those directions to allow the applicant additional time, but noted that no further extensions would be granted to the applicant without a medical report that clearly stated that she was unable to prepare for legal proceedings, the basis for that conclusion, and a timeframe for participation in legal proceedings in the future (the February directions).
On 21 February 2020 the applicant filed an application identifying some 30 matters of dispute with the respondent. The respondent prepared a document that sorted and numbered those matters (the issues list).
Pursuant to an interim application brought by the respondent, some of the issues in the issues list were subsequently determined, or struck out as being raised in previous proceedings and barred by issue estoppel. A matter relating to the installation of a fence was resolved by consent orders made following a hearing on 28 May 2020 (the May consent orders). At the end of the May hearing, some seventeen matters remained in contention.
At a directions hearing on 24 June 2020, the Tribunal ordered the applicant to, amongst other things:
(a)Identify any issue that is no longer in dispute; and
(b)file any further evidence and material and submissions in relation to each matter still in dispute by 22 July 2020.
The applicant did not comply with these directions.
The remaining issues were set down for hearing on 8 September 2020.
On 18 August 2020 the applicant filed an interim application seeking leave to withdraw most of the seventeen matters, but to reserve the right to press them again later. She cited medical reasons. The respondent opposed this application on the bases that the request amounted to an application for an indefinite adjournment of proceedings, and no comprehensive medical assessment was provided as per the February directions. The August interim application was listed for hearing along with the substantive matters on 8 September 2020.
On Friday 4 September 2020, the applicant lodged another interim application seeking an amendment to the May consent orders (September interim application). Senior Member Katavic heard the application and made orders staying the May consent orders until the substantive hearing.
At 11am on 8 September 2020, at the commencement of the substantive hearing, the applicant, through her solicitor, withdrew sixteen matters. Those matters were dismissed. The matters raised in the September interim application were resolved without the need for orders. A single issue, relating to the installation of a ladder, remained in contention. These reasons deal with that issue, and with the respondent’s application for costs.

The rooftop ladder issue

In 2018 the Units Plan was subjected to water damage following a storm. The OC commissioned a contractor, RnB Solutions, to undertake an investigation and make recommendations about future maintenance of the complex.
RnB attended the site and undertook an assessment and, on 13 June 2018, they provided a report to the OC (the RnB Report).
The RnB Report identified safe access to the roofline as a potential complication to maintaining the roof. The report opined that, at that time, only a person with “the highest level of training described under AS1891.4 Industrial fall arrest systems and devices – selection, use and maintenance” could be utilised to access the roof safely, and:
This level of training is currently hard to come by, particularly in trades other than those formally only working on rooftops (roof plumbers, roof tilers etc) and even then the skill level varies immensely.
RnB suggested that future works required on the aging roof and external painting would make permanent, safe access to the roof a “prudent investment”:
It should then also pay for itself in the comparative ease with which such high access can be gained by those requiring it.
RnB recommended installing a safety height system for the same reason.
The RnB report was considered at an executive committee (EC) meeting on 10 July 2018, at which stage there was “general acceptance[1] and the repairs commenced.
[1] Oakleaves executive committee meeting minutes 10 July 2018, page 2
On 19 September 2018 the EC voted unanimously to begin the other repairs, which included installation of the roof access system (the EC acceptance).
On 13 November 2018 the strata manager, on the EC’s instructions, authorised RnB solutions to proceed with the installation of the ladders, and on 15 November 2018 RnB engaged Rigcom Access (Rigcom) to advise on and install the ladders.
On 14 January 2019 Rigcom attended the site and provided a proposal for the installation of the ladders. In developing the proposal, Rigcom had regard to site photos, site plans and aerial imagery.
Rigcom recommended that one of the ladders be installed on the external wall of the building in which the applicant’s unit is located. The wall encloses her main bedroom. The ladder overlooks the applicant’s courtyard.
The location was approved at a meeting of the EC on 17 January 2019, at which the approved locations are noted to be “less visible and do not obstruct traffic” and “walls with no windows” (the location approval).[2]
[2] Oakleaves executive committee meeting minutes 17 January 2019 page 2
Concerningly, the minutes of 11 February 2019 indicate that the minutes of this meeting of 17 January 2019 were not uploaded to the Owners Portal, and apparently nor was the Rigcom proposal. As such, it appears the applicant was not aware of the installation until she saw the ladder being installed. This oversight is most unfortunate and probably contributed to the unfortunate deterioration of relationships between parties in the months to follow.
The ladders were installed in the recommended locations on or around 21 January 2019, and Rigcom invoiced the OC for the work on 30 January 2019. The EC approved payment of the invoice.
Following the installation, a series of issues arose with the installation. It is not necessary to detail them all. However, it appears that the ladder was noisy when first installed. An email from the Rigcom to the manager dated 29 May 2020 suggests that the cause of this was that wind vibrations caused the fixings to come loose, and that they replaced them with sturdier ones. The EC then authorised the installation of sound isolation pads on both units on 3 June 2020.

The applicant’s position

The applicant has sought:
(a)a merits review of the decision to purchase and install rooftop access ladders;
(b)an order that the ladder be removed at the expense of the OC; and
(c)that payment for the installation and supply of the ladders be voided as unauthorised.
The applicant advanced several arguments in support of her application that the ladder be removed.
First, she submitted that the cage over the ladder, designed to limit access to authorised persons, still “rattles and bangs and bangs on the hollow ladder”[3], and prevents her comfortable and peaceable enjoyment of her property.
[3] Transcript of proceedings 8 September 2020 page 16
Second, she argued that the ladder’s placement, overlooking her courtyard, amounted to a breach of her privacy, because any person accessing the ladder is able to peer into her courtyard garden. It potentially also affects the resale value of her unit.
Third, she submitted that the placement of the ladder had a detrimental effect on her mental health.
Fourth, she submitted that ladder did not comply with OH&S requirements and that it presented a liability risk to the owners corporation.
Finally, she claimed that the sinking fund expenditure was not authorised.
Unfortunately for the applicant, the evidence before the Tribunal in relation to each or any of these grounds was limited. I appreciate that gathering evidence may have been more difficult for the applicant due to her medical condition and her inexperience, and the added problems of COVID-19. She was given some leeway by the Tribunal, but ultimately she still needed to provide it, and she did not.
In relation to the noise made by the ladder, the evidence is that of the applicant’s perception of it. I accept her evidence that she perceives the ladder as noisy, especially when it is windy. I accept it can be noisy. However, I have no objective evidence as to the magnitude of the disturbance or the decibel volume of the sound or that of the surrounding environment. Nor is there evidence from any other unit holder, including the other occupant of the unit above the applicant’s unit.
There is photographic evidence that shows that workmen on the ladder are clearly visible from the applicant’s courtyard. I can accept that anyone on the ladder can look into her courtyard and that as such the placement of the ladder presents a privacy concern when it is in use. However, although there were works taking place in the time leading up to the hearing, there could be no suggestion that any invasion of privacy would be a regular occurrence after the roof restoration is complete. The cage would prevent use by unauthorised persons.
The evidence satisfies me that the ladder is something of an eyesore. Ms Russell presented statements from two real estate agents suggesting that the ladder would devalue her property, and I can accept that the presence of the ladder may weigh on the mind of a potential purchaser, along with many other factors. However, neither agent quantified that loss nor attended for cross examination so that I could ask further questions and adequately weigh this factor. At its highest, the evidence suggests that the ladder may have some detrimental effects on the applicant’s enjoyment of her property.
In terms of the medical detriments or impacts of the ladder’s placement of the applicant’s health, the only qualified evidence before the Tribunal is a letter from the applicant’s general practitioner, Dr Rosemary Austen, dated 20 August 2020, which opines that she was unable to properly prepare for these proceeding in the time available to her. There is no medical report in evidence that relates to the medical consequences arising from the placement of the ladder, or the applicant’s reaction to that. On balance, I accept that the applicant has a serious medical condition, and that the placement of the ladder (and perhaps the noise) had undermined her peace of mind and is therefore not helpful to the management of medical conditions, but that is as far as I can take it without evidence in the form of a medical report that specifically addresses the issue.
As to whether the ladder can be moved, the evidentiary situation is little better. Mr Falcetta submitted that because the ladder is located on the west side of the building, and prevailing winds in Canberra are from the northwest, the location is necessarily a noisy one, and a location on another side of the building would be preferable. Ms Russell had suggested an alternative location on another wall, but there is no expert evidence as to whether it is a feasible option. Again, I can accept that placement of the ladder on another side of the building will mean it is less exposed to the wind, and this may mean less noise, but I cannot make a more concrete finding than that. I am not satisfied that it would be the correct or preferable decision to put the ladder in a different location when I cannot determine whether there is a feasible alternative.
There is no evidence as to how much it would cost to remove the ladder or move it.
There is no evidence as to any OH&S risk posed by the ladder. The applicant filed some documentation about standards from another jurisdiction but the relevance to this proceeding is unclear.
The applicant has not clearly articulated, in terms of the matters remaining before the Tribunal, where she believes the authorisation process was deficient.

The law

This application was brought under section 125 of the Unit Titles (Management) Act 2011 (UTM Act). This provision allows the Tribunal to hear a dispute between an owner and an owners corporation.
After hearing an application under section 125 of the UTM Act, the Tribunal may make any of the orders listed in section 129(1), or any other order it considers ‘reasonably necessary or convenient’ to ‘resolve’ that dispute pursuant to section 129(2). This gives the Tribunal broad dispute resolution powers, but not unlimited ones.
The applicant seeks a merits review of the decision to purchase the ladder[4] and install it under section 129(1)(f). This provides:
(f) an order repealing or amending a resolution of a general meeting or executive committee based on a merits review of the resolution by the ACAT
[4] I note that two ladders were installed but the applicant’s application appears to relate primarily to placement of the ladder against her unit.
The applicant did not clearly identify which ‘resolution’ she wanted reviewed, but there were several relevant decisions, discussed further below.
Also, during the proceeding, it was suggested that the remedy was perhaps better sought under section 129(1)(a) or (c). These provide:
(a)an order requiring a party to do, or refrain from doing, a stated thing;
(b)…
(c)an order requiring an owners corporation to do a stated thing that is ancillary to a function of the corporation under this Act;
This raises the question as to whether these provisions could give the Tribunal jurisdiction to order the OC to remove a ladder installed in accordance with a resolution of the EC without a review of that resolution. However, I will set that question aside for the moment, and deal with the merits review argument first.
Broadly, it seems that the EC made a series of decisions about the ladder, but the most relevant were the acceptance decision and the location decision. The applicant appears to challenge both, although her primary concern is the location.
The ladder is on common property. Section 57 of the UTM Act provides that the OC is responsible for the common property. Under section 35(1) of the UTM Act the executive committee of the corporation exercises the functions of the corporation, and matters are decided by a majority vote (schedule 2, clause 2.10(1)). The EC may decide about the use of common property, on behalf of the OC, without the need for a resolution of the OC. However, that decision of the EC is then subject to a merits review under section 129(1)(f).
A merits review under section 129(1)(f) of the ACAT Act proceeds according to well-settled principles of administrative review where the Tribunal makes what it considers to be the correct and/or preferable decision based on the evidence and submissions it receives. The Tribunal hears the matter ‘afresh’ and may receive and consider submissions and evidence that were not before the original decision maker.[5]
[5]See Bonansea v the Owners – Unit Plan no 421 [2019] ACAT 10 at [20]
In other words, when conducting a review under section 129(1)(f), the Tribunal steps into the shoes of the EC.
In determining what is the correct and/or preferable decision in this case, I must weigh the advice of the experts engaged by the EC in favour of installing the ladder against the concerns raised by the applicant as to the consequences for her health and welfare, and the value of her property. There is no ‘onus of proof’ as such,[6] but I must give appropriate weight to the various pieces of evidence submitted by the parties.
[6]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
The evidence before the Tribunal is that the UP 585 is an aging building in need of substantial work to repair its roof, as well as ongoing maintenance. This requires that contractors be able to access the roof areas.
The EC sought expert advice as to how to manage the ongoing issues, and that advice included a recommendation to install the ladder. The EC accepted that recommendation.
A statement from a real estate agent, filed by the applicant, opines that she has never seen a ladder of the kind installed in this manner on a similar building. The respondent did not contest this. However, even assuming that such ladders are unusual, that alone does not mean that the recommendation is not a meritorious one. The uncontested evidence is that the presence of the ladder and roofing system will make arranging tradespeople to work on the roof and at height easier. This was largely uncontested by the applicant. No alternative proposal or solution was proposed by the applicant, and nor did she file an alternative opinion to the RnB report.

As such, I am satisfied that, in the absence of any contrary opinion, the EC made the correct or preferable decision to endorse the report.
The location is a more complicated issue.
The wall that was chosen is at the end of the complex, on common property, accessible from both common property and from the carpark, and is on a wall with no windows. This appears a logical choice, rather than one motivated by irrelevant or extraneous considerations.
There is some suggestion in the minutes of 17 January 2019 that an alternative location may have originally been suggested by Rigcom, but that they revised the recommendation upon visiting the site. There is nothing before me as to what the original site was or why the location was changed.
The respondent did not dispute that the installation did at initially create a nuisance for the applicant, in the form of noise. The respondent says the noise was addressed with the installation of noise insulation pads. The applicant denies this. As noted above, the evidence only goes to the applicant’s personal experience, with no sound meter or decibel readings, but I accept she feels inconvenienced and aggrieved and that there is some effect on her wellbeing.
Still, I am not convinced that these consequences alone are sufficient to reject the recommendation of RnB to install the ladder or to conclude that the recommended location is not an appropriate one. If one accepts the installation of the ladder is appropriate, then it must go somewhere. There is an explanation as to why the present location was chosen, and no probative evidence before the Tribunal as to the feasibility of any alternative location.
That is not to suggest this is an easy matter. It does appear that there is a degree of unfairness about the positioning of the ladder because the burden falls disproportionately on the applicant and the other person who owns the unit above hers. However, I must weight that against other considerations. The evidence before me is that the decision to install the ladder was a rational, reasonable one, made on expert evidence and intended to address a pressing problem, and hence both correct and preferable. While there may be an argument that the location is not the preferable one, there is no evidence upon which I could reasonably amend the resolution to place the ladder in an alternative one. The only alternative decision I could feasibly make is its removal.
Turning to sections 129(a) and (c) of the UTM Act, and the power to simply order the ladder’s removal, the legal standing is less clear.
Removing or moving the ladder would incur some cost. A motion regarding such expenditure has not been put to either the EC or the OC, and nor has the applicant pointed to a specific duty of the OC or the EC to remove the ladder, or to any other obligation that the OC is breaching. Instead, the applicant relies on what she says is an obligation by the OC to minimise interference with her enjoyment of her unit through excessive noise and loss of privacy.
In substance, these arguments resemble a claim in nuisance, with the applicant seeking orders to mitigate the nuisance.
There are duties upon unit owners not to cause a nuisance[7] to an owner, occupant or user of another unit or to permit noise within the unit as might (in the circumstances) be reasonably likely to cause substantial annoyance to an owner, occupier or user of another unit.[8] There is also as a duty upon executive committee members more generally not to cause a nuisance.[9] However, there is no statutory duty on the corporation itself not to cause a nuisance per se.
[7] Unit Title (Management) Regulation 2011, Schedule 1, 1.9
[8] Unit Title (Management) Regulation 2011, Schedule 1, 1.10
[9] Section 6, Schedule 1, Part 1.1, section 6
Could section 129(1)(a) or (c) be used as a basis for the Tribunal to make orders addressing a common law nuisance by attributable to the corporation?
Current authority suggests in cannot.
The distinction between an application under the UTM Act and a common law civil claim was discussed by Presidential Member Daniel in Riley v the Owners Corporation Unit Plan 706 [2018] ACAT 99 at [62] to [63]:
In terms of the substantive law to be applied by the tribunal, the UTM Act does not set out what the tribunal should have regard to when deciding an application. Given the objects of the ACAT Act require decisions to be ‘fair’ it … can be assumed that the Tribunal does not exercise its jurisdiction whimsically, idiosyncratically or arbitrarily, but has regard to the facts, and the parties’ rights and responsibilities under common law and statute, in reaching a rational decision.
But how far does the tribunal go in considering the parties’ rights and responsibilities? If the reason advanced for ‘why’ the tribunal should make an order sounds a lot like a claim in negligence, should the tribunal approach it as such, applying the principles and statutory constraints that apply to such an action on a cause of action, and only making orders if those requirements are met? Or can an application that falls short of satisfying the requirements for a civil claim still be the subject of orders by the tribunal, if the tribunal considers those orders are ‘reasonably necessary or convenient’ to ‘resolve the dispute’?
After considering the situation in other jurisdictions, Presidential Member Daniel then continued at [67] to [69]:
These words used in Part 8 of the UTM Act are open to being interpreted as granting the tribunal an unlimited jurisdiction to determine disputes, including, in declining breadth:
(a) all civil causes of action between an owners corporation and specified parties; or
(b) all civil causes of action between an owners corporation and specified parties where a part of the cause of action relates to obligations imposed by the UTM Act or UT Act;
(c) a subset of civil causes of action between and owners corporation and specified parties where a part of the cause of action relates to obligations imposed by the UTM Act or UT Act (eg. breach of statutory duty but not including negligence or nuisance);or
(d) no civil causes of action between an owners corporation and specified parties.
I consider that the final, and narrowest interpretation is to be preferred as being the interpretation that best promotes the purpose of the legislation. Although the second reading speeches and explanatory statement indicated that the new jurisdiction would be expansive, those expressions must be interpreted with reference to the prior legislation which provided only a limited ‘deadlock orders’ power to the Magistrates Court. Any of the more expansive interpretations would have been such an extraordinary change to the legal landscape that one would have expected to see a clear reference to concurrent jurisdiction, and the implications of such, in the speeches if not in the legislation itself.
While it is not a strong point in isolation, it can be noted that a preference for the narrow interpretation is consistent with the history of amendment of the UTM Act. The Tribunal has for some time expressed the view that an application for outstanding levies to be recovered as a ‘debt’ should be brought in the tribunal’s civil jurisdiction rather than under the UTM Act. However, the expansive interpretation of Part 8 would permit a civil debt application to be determined in the unlimited UTM Act jurisdiction. The Legislature has not taken any steps to amend the UTM Act to clarify that such a civil debt claim can be brought in the unlimited UTM Act jurisdiction, despite the UTM Act having been amended specifically in relation to the recovery of unpaid levies. This failure to amend the legislation in this respect might be taken as an indication that the tribunal’s current interpretation of its jurisdiction, in that respect, is correct.
The Presidential Member’s comments were made in the context of a claim for compensation for breach of statutory duty or negligence. However, I do not think that the present application for what is effectively mitigation of a nuisance is a relevantly different matter. In both cases, to make orders under the UTM Act, there must be a relevant duty or obligation, under that Act or the UT Act, that a party to the proceedings seeks to enforce. The unit titles jurisdiction is not an alternative forum for the resolution of civil disputes.
As such, it would not be appropriate for me to make a more general order aimed at ameliorating a nuisance emanating from common property where that order is not founded in rights, duties or obligations under the UTM Act.

The sinking fund

The substance of this claim is hard to identify with any precision. As best I can determine, the applicant argues that the payment to Rigcom was not properly authorised.
The updated sinking fund plan was accepted at an AGM on 25 July 2019. No review was sought of that plan at the time. The applicant has discontinued her application in so far as it relates to a more general review. The payment to Rigcom was reflected in the accounts for 1 September 2019 to 13 February 2020.
No error has been identified.

The costs issue

The respondent has sought costs thrown away for the preparation of the sixteen matters that did not proceed to hearing, and costs of the interim application of 4 September 2020.
The general rule is that parties to matters in the Tribunal pay their own costs. However, section 48(2)(b) and (c) of the ACT Civil and Administrative Tribunal Act 2008 provides two exceptions where:
(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;
(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
Section 49 then provides:
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 CIC Australia Ltd v ACT Planning and Land Authority; Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96 Justice Penfold concluded that section 48 confers a narrow costs power on the Tribunal, being the power to make the order specified in section 48(2) and only in the circumstances specified in that provision.[10] Legal costs, and particularly the risk of having to pay those of another party, are a significant barrier for justice to many people. The Tribunal is intended to be accessible and, as such, cost applications in the Tribunal must meet a high bar. That restriction on costs no doubt causes frustration, particularly in cases like this where one party is put to unnecessary expense responding to an extensive, disorganised or ‘scattergun’ claim made by the other. The applicant’s lawyers spent considerable time and effort identifying and organising the issues raised in the applicant’s materials into a form it could respond to, and the Tribunal could consider. I am certainly very grateful for this. It has doubtlessly cost the OC money. The OC’s sense of grievance at this expense is probably increased because it was put through the expense of preparing a case only to have the applicant withdraw on the morning of the hearing. Such situations create a sense of ‘game playing’ that is also barrier to justice, if not in individual cases then more generally.
[10] See also Bell & De castella And Rob De Castella’s Smartstart For Kids Ltd [2013] ACAT 66
However, while such conduct (whether deliberate or not) is frustrating, does it warrant an award of legal costs under sections 48(2)(b) or (c)?
The respondent lists two bases for orders made under section 48(2):
(a)The hearing was delayed or obstructed by unnecessary interim applications and a disregard of Tribunal orders.
(b)That the applicant deliberately allowed the respondent to prepare evidence on all issues amounts to an obstruction.
Turning to section 48(2)(b) first, In Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132 (Smith) Presidential Member McCarthy described ‘unreasonable delay or obstruction’ as “sharp practice, withholding relevant information, half-truths, ambush, surprise or delay.”[11] This broadly suggests that a degree of knowledge or deliberateness needs to be involved.
[11] At [127]
I am satisfied that there was no delay. Ms Russell’s withdrawal, even though late, amounted to a reduction of the hearing time before the Tribunal. If the applicant had allowed the hearing to run, and lost, it is less likely that costs would have been awarded against her, and less likely still on this basis. So while it is unfortunate and inconsiderate that Ms Russell withdrew her claims on the first day of the hearing, there was no delay, and awarding costs in this situation would have the absurd consequence of encouraging parties to run matters that may otherwise not be arguable. I may have decided differently if there was convincing evidence of some conceit, calculation or ‘sharp practice’ on the applicant’s part. There is not. At most, I would conclude that she was disorganised, unprepared or overwhelmed.
There is a stronger argument that the applicant’s actions have amounted to an ‘obstruction’.
‘Obstruction’ is relevantly defined in the Macquarie Dictionary as follows:
1.   Something that obstructs; an obstacle or hindrance: obstructions to navigation
2.   The act of obstructing.
3.   The retarding of business before a legislative group by parliamentary devices, or an attempt at such a retarding.
And ‘obstruct’ means:
1.   To block or close up, or make difficult of passage, with obstacles, as a way, road, channel, or the like.
2.   To interrupt, make difficult, or oppose the passage, progress, course, etc., of
3.   To come in the way of or shut out (a view etc)
In Smith, Presidential Member McCarthy said that obstruction should be given its ordinary, dictionary meaning, and ‘obstruction of justice’ in the sense of undermining the objects of the ACAT Act.[12] These objects include ensuring that applications are resolved as quickly as is consistent with achieving justice.
[12] At [148]
The applicant first sought to withdraw the seventeen matters in an interim application lodged 9 August 2020, so it would appear that doing so was on her mind from at least that date. However, instead of filing a notice of discontinuance and ending the proceedings, she instead sought an order from the tribunal that would allow her to recommence later. The respondent submits that this was in substance a request to adjourn, or leave to reagitate the same issue at a later date, and that this amounted to an abuse of process, especially having regard to the tribunal’s directions that future requests for adjournments be supported by medical evidence.
I agree with the respondent that the application was more in the form of an adjournment request than a withdrawal. However, I am not satisfied that it impeded the course of the proceedings, and nor am I satisfied there was any ‘sharp practice’ involved. Ms Russell as not a lawyer. Several issues in this matter had already been struck out based on issue estoppel. Ms Russell sought to protect her rights. Her application, had it been pressed, was unlikely to have been successful, but she was entitled to bring it. It would appear she obtained legal advice shortly before the hearing and realised the futility of doing so.
In terms of the need for the respondent to prepare in any case, unfortunately the last timing meant the the interim application was listed along with the substantive application on 8 September 2020. This was the same date as the hearing, which meant the respondent had to prepare, no matter the outcome.
The respondent has also complained of the “constant peppering”[13] of the respondent with documents, submissions and other similar activities. While not helpful, and doubtlessly a source of frustration and additional legal costs for the respondent, an excess of submissions is not uncommon with self-represented litigants who are nervous or unfamiliar with processes. Ultimately parties have a choice whether to engage legal representation in the Tribunal, and so the cost of lawyers is not a decisive consideration in a costs application such as this. Moreover, in cases where an unmanageable amount of documentation is filed in a matter, and costs are becoming high, it is open to the other party to seek further directions.
[13] Transcript of proceedings 8 September 2020 page 32
Consequently, while I accept the applicant’s actions have caused some degree of delay, obstruction and indeed expense, I am not satisfied that the delay was unreasonable having regard to her medical issues and lack of legal representation and I am not satisfied that the obstruction was to such a degree that I should award costs under section 48(2)(b).
I have also considered whether to award costs under section 48(2)(c) for a failure to comply with directions, in particular the direction to identify, by 22 July 2020, any issues not in dispute. I am not satisfied that such an order should be made, for many of the same reasons above. In particular, I am not satisfied that it is in the interests of justice that I award costs in this case, in the absence of evidence of calculation, such as correspondence indicating an understanding of the consequences, or a past pattern of behaviour, perhaps by a party with demonstrated experience before the Tribunal.
In making this decision, I have also considered the broader ramifications of requiring the applicant to pay what are likely to be very significant legal costs, in a jurisdiction where lawyers, while certainly of assistance, in this case to the tribunal, are not a necessity.
The urgent application on 4 September 2020 is a different matter.
The interim application was listed urgently at 3:30pm on Friday 4 September 2020, before a differently constituted tribunal. By way of that interim application, the applicant sought certain orders that were contrary to consent orders that had been made by the tribunal on a previous occasion. A Senior Member was allocated to the hearing on an urgent basis and made orders restraining the respondent from carrying out any fencing work until the hearing on 8 September 2020. It was resolved on that occasion without the need for orders. The entire matter was ill founded. It arguably amounts to an abuse of process, in the sense of being seriously or unfairly burdensome and productive of serious and unjustified trouble and harassment[14].
[14] Ashby v Commonwealth (No 4) [2012] FCA 1411 at [4] per Rares J
The September interim application delayed the implementation of the May consent orders. It did not, however, delay or obstruct the proceedings generally.
In Blackshaw & Anor v Campbell [2019] ACAT 41 (Blackshaw) Presidential Member McCarthy dealt with a similar application, which he was satisfied that an interim application was brought solely for the purpose of frustrating orders he made. He observed:
Mr Twigg submitted that the Tribunal should construe section 48(2)(b) and (c) of the ACAT Act as applying to the “overall proceeding”, pointing to the respondent’s general tactic of obstruction and delay.
I am not persuaded that section 48(2)(b) or (c) of the ACAT Act can be so broadly read. Section 48(2)(b) is directed at delay or obstruction “before or while the Tribunal was dealing with the application” (emphasis added). In my view, the Tribunal must therefore consider the question of costs by reference to the application in question, not the proceeding generally, and whether there has been obstruction or delay in the Tribunal’s ability to deal with it. No “unreasonable” delay or obstruction has occurred. Save for a delay of one week, consequent upon Mr Christensen’s unavailability, the respondent’s application was promptly heard. I accept that the application was brought in order to obstruct implementation of the orders I made three years ago, but that does not mean that the respondent has done anything to delay or obstruct the Tribunal from dealing with her application to set aside those orders. It follows that section 48(2)(b) has no application this case.[15]
[15] Page 15 at [46] – [47]

The Presidential Member made similar observations in Smith. Senior Member Anforth, reluctantly, followed Smith in Newham Business Brokers Pty Ltd v ACN 120 453 744 Pty Ltd & Anor [2020] ACAT 73 in concluding that section 48 did not allow costs to be awarded for an abuse of process. Both Presidential Member McCarthy and Senior Member Anforth suggested statutory reform may be warranted, and I agree.
Hence, on current weight of authority, costs are not recoverable under section 48 for abuse of process or bad faith. A strike out application is the appropriate remedy to an unnecessary or unsustainable application, not costs. Accordingly, the application for costs is dismissed.
Accordingly, my orders are
(a)The applicant’s application is dismissed.
(b)The respondent’s application for costs is dismissed.

………………………………..
Senior Member H Robinson

Date(s) of hearing

28 May 2020

24 June 2020

8 September 2020

Solicitors for the Applicant:

Mr M Falcetta

Solicitors for the Respondent:

Ms K Ruchen