SMITH and PALACE NOMINEES PTY LTD T/AS JOE CRISAFIO KIA
[2016] WASAT 12 (S)
•29 APRIL 2016
SMITH and PALACE NOMINEES PTY LTD T/AS JOE CRISAFIO KIA [2016] WASAT 12 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 12 (S) | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:3/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (SENIOR MEMBER) | 29/04/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded to the respondent | ||
| B | |||
| PDF Version |
| Parties: | NIGEL SMITH PALACE NOMINEES PTY LTD T/AS JOE CRISAFIO KIA |
Catchwords: | Practice and procedure Costs Equal Opportunity Costs reserved because of disruptive and unreasonable behaviour of applicant and because applicant made serious but unsubstantiated claims against respondent Respondent seeking partial indemnity for costs at scale in the sum of $37,000 Tribunal finding case warranted costs order in respondent's favour Need for restraint in the award of costs Tribunal awarded respondent $25,000 in costs Extent to which applicant's personal circumstances (including impecuniosity) relevant to determining costs issues Whether any special 'rules' apply in Equal Opportunity matters Tribunal holding that the role of Equal Opportunity Commission a potentially relevant factor Comparative costs principles in similar matters in the Victorian Civil and Administrative Tribunal Whether time to pay should be ordered insufficient material available to make an assessment for time to pay Tribunal staying award for 21 days |
Legislation: | Equal Opportunity Act 1984 (WA) State Administrative Tribunal Act 2004 (WA), s 87 |
Case References: | Aldridge v Victims Compensation Fund Corporation (No 2) [2008] NSWSC 1040 Baldi v SPC Australia Ltd [1995] VADT 5; (1995) EOC ¶92-765 Ninan and Valuer General [2012] WASAT 248 (S) Rayney v Stevenson DCJ [2015] WASC 112 (S) Smith and Palace Nominees Pty Ltd t/as Joe Crisafio Kia [2016] WASAT 12 Summerville and Department of Education and Training [2006] WASAT 368 (S) Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 Wilson v Phoenix Contracting Services [1998] VADT 142; (1998) EOC ¶92936 Wilson v Phoenix Contracting Services Pty Ltd [1998] VSC 81; (1998) 14 VAR 52 |
Orders | 1. Subject to paragraph 2 of these orders, the applicant is to pay to the respondent a total of $25,000 in respect of its costs in both matters.,2. These Orders do not have effect until the expiry of a period of 21 days from the date of their publication. |
Summary | These proceedings related to the question of whether any costs should be paid by the unsuccessful applicant, Mr Nigel Smith, arising out of Smith and Palace Nominees Pty Ltd t/as Joe Crisafio Kia [2016] WASAT 12. In those proceedings, the question of costs had been reserved following the Tribunal's findings and observations that Mr Smith had behaved in an unsatisfactory and repeatedly disruptive manner (including his selective, argumentative and unresponsive answers in crossexamination), and because Mr Smith had made unsubstantiated but extremely serious allegations against the respondent.,The Tribunal is, generally speaking, a 'nocosts' jurisdiction. That is, parties in the Tribunal usually bear their own costs. However, the Tribunal has a discretion to award costs against a party where their conduct or behaviour has unnecessarily prolonged a hearing or showed that a party had acted unreasonably or inappropriately in the conduct of the proceedings. Here, in the light of the Tribunal's findings or observations, submissions on costs were invited from the parties. The respondent sought just over $37,000 in costs (determined at the appropriate scale), relying upon the Tribunal's findings. Mr Smith did not challenge the applicable costs principles or the respondent's calculations but, in effect, sought to justify the bringing of his extensive claims, including reference to the initial support that he had received from the Equal Opportunity Commission (EOC). He also claimed that he was impecunious.,The Tribunal noted the special role that the EOC occupies in relation to equal opportunity matters. In effect, the EOC screens such claims, and will often assist an applicant in the Tribunal. The costs position in the Victorian Civil and Administrative Tribunal in relation to equal opportunity matters was also discussed by the Tribunal, particularly in the light of a recent Court of Appeal decision on costs in the Tribunal: Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32. That decision cautioned against the Tribunal adopting special 'rules' on costs in respect of particular jurisdictions or areas of the Tribunal's work.,The Tribunal determined that while a party's impecuniosity was generally irrelevant to the question of a costs award, the Tribunal nevertheless has a broad discretion which could take into account a party's personal circumstances. Taking those circumstances into account (including Mr Smith's continuing disability and his receipt of a Commonwealth pension) and the general need for restraint in costs awards, the Tribunal determined that Mr Smith should nevertheless contribute the sum of $25,000 towards the respondent's costs. The applicant had not provided any satisfactory material to enable a proper assessment to be made as to the period, if any, over which payments could be made and, accordingly, the Tribunal declined to make any such arrangements. The Tribunal did, however, stay the operation of its orders for 21 days. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : SMITH and PALACE NOMINEES PTY LTD T/AS JOE CRISAFIO KIA [2016] WASAT 12 (S) MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 APRIL 2016 FILE NO/S : EOA 3 of 2015
- EOA 24 of 2014
- Applicant
AND
PALACE NOMINEES PTY LTD T/AS JOE CRISAFIO KIA
Respondent
Catchwords:
Practice and procedure - Costs Equal Opportunity Costs reserved because of disruptive and unreasonable behaviour of applicant and because applicant made serious but unsubstantiated claims against respondent - Respondent seeking partial indemnity for costs at scale in the sum of $37,000 Tribunal finding case warranted costs order in respondent's favour Need for restraint in the award of costs Tribunal awarded respondent $25,000 in costs - Extent to which applicant's personal circumstances (including impecuniosity) relevant to determining costs issues - Whether any special 'rules' apply in Equal Opportunity matters - Tribunal holding that the role of Equal Opportunity Commission a potentially relevant factor - Comparative costs principles in similar matters in the Victorian Civil and Administrative Tribunal - Whether time to pay should be ordered - insufficient material available to make an assessment for time to pay - Tribunal staying award for 21 days
Legislation:
Equal Opportunity Act 1984 (WA)
State Administrative Tribunal Act 2004 (WA), s 87
Result:
Costs awarded to the respondent
Summary of Tribunal's decision:
These proceedings related to the question of whether any costs should be paid by the unsuccessful applicant, Mr Nigel Smith, arising out of Smith and Palace Nominees Pty Ltd t/as Joe Crisafio Kia [2016] WASAT 12. In those proceedings, the question of costs had been reserved following the Tribunal's findings and observations that Mr Smith had behaved in an unsatisfactory and repeatedly disruptive manner (including his selective, argumentative and unresponsive answers in crossexamination), and because Mr Smith had made unsubstantiated but extremely serious allegations against the respondent.
The Tribunal is, generally speaking, a 'nocosts' jurisdiction. That is, parties in the Tribunal usually bear their own costs. However, the Tribunal has a discretion to award costs against a party where their conduct or behaviour has unnecessarily prolonged a hearing or showed that a party had acted unreasonably or inappropriately in the conduct of the proceedings. Here, in the light of the Tribunal's findings or observations, submissions on costs were invited from the parties. The respondent sought just over $37,000 in costs (determined at the appropriate scale), relying upon the Tribunal's findings. Mr Smith did not challenge the applicable costs principles or the respondent's calculations but, in effect, sought to justify the bringing of his extensive claims, including reference to the initial support that he had received from the Equal Opportunity Commission (EOC). He also claimed that he was impecunious.
The Tribunal noted the special role that the EOC occupies in relation to equal opportunity matters. In effect, the EOC screens such claims, and will often assist an applicant in the Tribunal. The costs position in the Victorian Civil and Administrative Tribunal in relation to equal opportunity matters was also discussed by the Tribunal, particularly in the light of a recent Court of Appeal decision on costs in the Tribunal: Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32. That decision cautioned against the Tribunal adopting special 'rules' on costs in respect of particular jurisdictions or areas of the Tribunal's work.
The Tribunal determined that while a party's impecuniosity was generally irrelevant to the question of a costs award, the Tribunal nevertheless has a broad discretion which could take into account a party's personal circumstances. Taking those circumstances into account (including Mr Smith's continuing disability and his receipt of a Commonwealth pension) and the general need for restraint in costs awards, the Tribunal determined that Mr Smith should nevertheless contribute the sum of $25,000 towards the respondent's costs. The applicant had not provided any satisfactory material to enable a proper assessment to be made as to the period, if any, over which payments could be made and, accordingly, the Tribunal declined to make any such arrangements. The Tribunal did, however, stay the operation of its orders for 21 days.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Mr T Kennedy
Solicitors:
Applicant : N/A
Respondent : CS Legal
Case(s) referred to in decision(s):
Aldridge v Victims Compensation Fund Corporation (No 2) [2008] NSWSC 1040
Baldi v SPC Australia Ltd [1995] VADT 5; (1995) EOC ¶92-765
Ninan and Valuer General [2012] WASAT 248 (S)
Rayney v Stevenson DCJ [2015] WASC 112 (S)
Smith and Palace Nominees Pty Ltd t/as Joe Crisafio Kia [2016] WASAT 12
Summerville and Department of Education and Training [2006] WASAT 368 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Wilson v Phoenix Contracting Services [1998] VADT 142; (1998) EOC ¶92936
Wilson v Phoenix Contracting Services Pty Ltd [1998] VSC 81; (1998) 14 VAR 52
Introduction
1 These reasons are directed at the question of costs (if any), a matter left open by the orders of the Tribunal in Smith and Palace Nominees Pty Ltd t/as Joe Crisafio Kia [2016] WASAT 12 (Palace Nominees).
2 The Tribunal's orders in Palace Nominees, dated 19 February 2016 (Orders), included the following matters:
2. The respondent [Palace Nominees Pty Ltd t/as Joe Crisafio Kia] may, within 14 days, or such further time as the Tribunal allows, file and serve short written submissions on costs including, if costs are claimed, identifying in short form the amount or amounts or proportion of costs sought to be recovered (and the basis therefor).
3. Thereafter, by no later than a further 14 days, or such further time as the Tribunal allows, the applicant [Mr Nigel Smith] may file and serve short submissions in reply.
3 The respondent in Palace Nominees, through its legal representatives has, as a consequence of the Orders and the findings and observations of the Tribunal (see below), sought costs in the sum of $37,224.75 payable by Mr Smith.
4 For the reasons that follow, I have acceded to that application, but not in the full sum sought by the respondent.
Basis of the claim for costs
5 These reasons on costs should be read in conjunction with the reasons for decision in Palace Nominees, which, amongst other matters, explain in detail why Mr Smith was unsuccessful in the bringing of his case.
6 More importantly, in Palace Nominees, at [127], [132], [133], [147], [149], [251], and [257] [261], the Tribunal set out its concerns concerning Mr Smith's conduct, claims and allegations during both the trial and in some of the interlocutory proceedings. It is unnecessary to repeat those observations. For present purposes, it is sufficient to draw attention to this passage in the Tribunal's summary of the decision in Palace Nominees, as follows:
Because of the unsatisfactory and repeatedly disruptive manner in which Mr Smith [the respondent in this costs application] had conducted himself during the hearing (including his selective, argumentative and unresponsive answers in cross-examination), and because Mr Smith had made unsubstantiated and extremely serious allegations against Mr Crisafio [the applicant for costs], the Tribunal left open the possibility of a costs order against Mr Smith to partially compensate Mr Crisafio for the significant legal costs that he had to bear in order to clear his name.
Respondent's costs claim
7 It is unnecessary to set out the precise details of the carefully itemised claim for costs, as Mr Smith has generally challenged neither the total amount thereof, its methodology (including the relevant rates) nor the official costs scales (Determinations) upon which the respondent has based its itemised claim. Neither is there any challenge to the cost principles discussed in Palace Nominees (see the references below to the applicant's 'submissions').
8 Mr Smith does, however, challenge the suggestion that any award of costs should be made at all against him.
9 On its face, the amounts claimed by the respondent appear reasonable. And, the amounts claimed by the respondent represents, of course, much less than the respondent has had to pay for all of the work actually connected with Mr Smith's complaints (including work connected with the Equal Opportunity Commission (EOC), and then at much higher solicitor-client rates).
10 However, Mr Kennedy properly accepts that, in any case, the Tribunal has acknowledged '[t]he need for restraint in the amounts awarded for costs in the Tribunal': Ninan and Valuer General [2012] WASAT 248 (S) (Ninan), at [20].
Costs principles
11 The Tribunal set out an overview of the relevant costs principles at [252] [256] of Palace Nominees. It is unnecessary to repeat either those observations or the associated case references here, except to reiterate that costs are not awarded against a party as some form of 'punishment': see Ninan at [19].
12 However, the Tribunal should add some references to the question of a party's alleged impecuniosity in relation to the question of costs (as the matter has been raised by Mr Smith, see below).
13 In Ninan, the Tribunal noted, at [15]:
… as has been said in the District Court of this State (Webber v Insurance Commission of Western Australia [2009] WADC 53 per Schoombee DCJ, at [32]):
... [t]he impecuniosity of a plaintiff is not in itself a ground for the Court departing from the usual order [in respect of costs].
15 In Ninan, the unsuccessful applicants had pleaded impecuniosity, but the Tribunal found (at [15]) as follows:
However, the applicants do own several properties in the State of Western Australia … Even if this factor [impecuniosity] were somehow relevant, the applicants do not provide any material to show why any of these substantial assets could not be disposed of or otherwise charged to produce income to pay any costs order.
16 In Rayney, the unsuccessful applicant for review claimed that he '[did] not have the means to meet a costs order'. However, like here, '[n]o evidence to support those contentions was put before [the court]'; only assertions by the applicant (at [13]).
17 In Aldridge v Victims Compensation Fund Corporation (No 2) [2008] NSWSC 1040 (Aldridge), Rothman J said, at [7] [8], emphasis added:
… the Court is being asked to order an impoverished indigenous Australian women, who has, on material subsequently available to the [Victims Compensation Tribunal], more probably than not been the victim of significant domestic violence, to pay the costs of a Tribunal established with public moneys for the purpose of compensating victims of crime.
Ordinarily, costs follow the event. Impecuniosity is not a sufficient reason to overcome that general rule. Nor is the fact that a person is of aboriginal descent or a member of the aboriginal community. But the combination of factors (impecuniosity; aboriginality; likelihood of having (on subsequent information) the qualifying factors for compensation from the Tribunal; the public nature of the Fund and the Tribunal; and the futility of the orders) are sufficient, in this case, to overcome the general rule.
18 I will return to this matter below (that is, the width of the discretion available to the Tribunal; a 'combination of factors' as Rothman J put it), to the extent that these observations are relevant. However, I should add that here the special circumstances in Aldridge are a very long way indeed from the circumstances in this case.
19 Finally, I should add that since the decision in Palace Nominees was published, the Court of Appeal, in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale), has reminded the Tribunal of the dangers of attaching any special tests or 'rules' to the 'no-costs' starting point (State Administrative Tribunal Act 2004 (WA), s 87; see Palace Nominees, at [252]) in respect of particular areas of the Tribunal's work. See the observations of Martin CJ in Questdale (Corboy J agreeing) at [8] [10] and those of Murphy JA (Corboy J also agreeing) at [61] [62].
20 However, as presently advised, I would not see anything that their Honours have said in Questdale as precluding, for example, consideration of the special rolethat the EOC has to play in dealing with complaints under the Equal Opportunity Act 1984 (WA) (EO Act). So, Barker J's observation in Summerville and Department of Education and Training [2006] WASAT 368 (S), at [52] (emphasis added), would appear still to be relevant:
In my view, parties who require their complaints to be transferred to the Tribunal by the Commissioner for Equal Opportunity in circumstances where the Commissioner has already found those allegations to be without substance, should not be entitled to maintain proceedings that do not have any reasonable chance of success without being at risk of a costs order being made against them.
Respondent's arguments
21 The respondent's counsel, Mr Kennedy, has relied principally on the Tribunal's observations or findings referred to above concerning Mr Smith's conduct; Mr Smith's peripheral (but serious) unsubstantiated claims, and the potential effect thereof on the respondent's business reputation necessitating defence of such claims.
22 Mr Kennedy also referred to:
• the Tribunal's general warnings to Mr Smith as to the consequences of the making of unsubstantiated claims;
• the failure of Mr Smith 'to put [his] case in a clear and direct manner';
• the making of 'multiple claims' by Mr Smith;
• the failure of Mr Smith to comply with some procedural orders of the Tribunal and the consequential necessity for additional directions hearings;
• the necessity, given the way the case unfolded, for the respondent to prepare a substantial 'joint bundle of documents';
• the related insistence by Mr Smith 'that all lines of enquiry be pursued'; and
• the costs thrown away when an earlier hearing of the case was rescheduled (not the fault of the respondent) which also led to additional directions hearings.
23 Mr Kennedy notes that multiple directions hearings were needed in the early part of 2015 'the sole purpose of which was for [Mr Smith] and the [EOC] to sort out representation [in the Tribunal]' for Mr Smith.
24 As to the scale of costs, Mr Kennedy pointed out the complexity of the two concurrent proceedings (and the sweep of the allegations made by Mr Smith) and the duplication of effort sometimes required to prepare for the hearing, given that there were two complaints heard together.
25 Mr Kennedy anticipated, correctly, a claim by Mr Smith of impecuniosity. He submitted that this was rebutted by the fact that Mr Smith owns two mortgaged properties in this State (both in joint tenancy, with Mr Smith's wife). However, the respondent did not have any details of the extent of the mortgages carried on these properties.
Applicant's arguments
26 Mr Smith made responsive 'submissions', such as they are, opposing any award of costs in favour of the respondent. These submissions were contained in a series of emails to the Tribunal (dated 24 February 2016; 25 February 2016; 29 February 2016 (two emails on that date) and 4 March 2016).
27 The 'submissions' consist mainly of short, sometimes hard to follow, assertions that jump from topic to topic. In this, they are reminiscent of some aspects of the trial and Mr Smith's previous attempts to articulate his case. The thrust of Mr Smith's submissions were that he was justified in bringing his claims and that it would be unfair to award costs against him. Mr Smith claimed, so far as appears relevant:
• that he was told by a person or persons unspecified that the Tribunal was a 'no cost[s] court'
• that he did not wilfully fail to comply with the Tribunal's orders, but 'did [his] best' to comply
• that he did not have the money to 'defend' (sic) himself
• that the EOC had accepted his initial complaints as 'credible'
• that officers of the EOC contributed to delays in proceedings and that they 'dropped [him] without explanation'; Mr Smith also implies that the EOC more or less abandoned him after they withdrew representation for him following 'a difference of opinion' as to whether Mr Smith should 'accept [a settlement] offer'
• that the respondent's legal representatives were at fault for printing off material where Mr Smith had offered to do the same
• that any costs award in the respondent's favour would be 'a further slap in the face of justice'
28 I have ignored Mr Smith's 'submissions' where he attempted to reargue or reopen matters already decided in Palace Nominees (including apparent attempts to offer new evidence) or where he otherwise engages in pointing out alleged errors in the Tribunal's reasons for decision. I have also ignored Mr Smith's apparent warnings of an appeal if costs were awarded in the respondent's favour.
29 Mr Smith did set out some details of his straightened financial circumstances (unsupported by any actual proof of these claims). He confirmed that he continues to be in receipt of a Disability Support Pension but that payment is reduced by receipt of his wife's income into their household. Mr Smith claimed that his second property is negatively geared, but would probably now sell for a loss, leaving him with an effective deficit (that is, 'negative equity') of some $20,000. He says that he had to give up his Audi car, as he could not afford the repayments anymore.
30 Mr Smith said that if he had to pay costs then he could only afford to do so at the rate of $5 per week.
31 Notwithstanding that these claims are unsupported by any actual supporting documentary material or detailed assessment or corroboration of Mr Smith's real financial circumstances, I am prepared to generally accept Mr Smith's claims as they do not seem to be inherently implausible.
Discussion of the case
32 Chaney J reminds us, in Rayney at [6], that:
The discretion to award costs, whilst broadly expressed, is not unqualified. It cannot be exercised capriciously and must be exercised judicially in accordance with established principle and factors directly connected with the litigation.
33 These general comments would equally apply in a 'no-costs' jurisdiction.
34 In Palace Nominees, I set out in some detail the claims and conduct of Mr Smith which suggested that his conduct could justify a departure from the 'no-costs' starting points for costs decisions in the Tribunal. In other words, there was, on the record, sufficient material that could, unless rebutted or explained away in some satisfactory manner, demonstrate conduct and behaviour which 'unnecessarily prolong[ed] the hearing' or otherwise showed that Mr Smith 'acted unreasonably or inappropriately in [his] conduct of the proceedings' (see the references in Ninan, at [78]).
35 With respect to Mr Smith, nothing in his submissions displaces my earlier impressions, observations or findings that the imposition of a costs award against him is, on its face, justified.
36 The learned editors of the Australian and NZ Equal Opportunity Commentary (CCH, at [¶86-670]) provide the following useful commentary on Wilson v Phoenix Contracting Services [1998] VADT 142; (1998) EOC ¶92936 (emphasis added):
The former Victorian Anti-Discrimination Tribunal made a costs order against a complainant whose case 'had no reasonable prospect of success …'. The Tribunal stated that even if the complainant 'did have a bona fide belief in the genuineness of his own claim, it was so lacking in any real foundation that he should never have brought it against the Respondents.'
The Tribunal, in determining whether a costs order should be made against the complainant, stated that 'The Tribunal should not lightly find that a claim should not have been brought. It is the intention of the legislation that a person with a bona fide claim will bring it to the Commission and, if it is not resolved, have the matter determined by the Tribunal. On the other hand it must be recognised that an accusation of unlawful discrimination can have serious consequences for the person accused … and should not be made without due cause.' It was recognised by the Tribunal that its power to award costs is very wide. The Tribunal continued: 'There is no general rule adopted by this Tribunal that the successful party is entitled to costs … In exercising its discretion the Tribunal must have regard to the nature of the jurisdiction. If orders for costs are made too readily, people might be deterred from coming to the Tribunal and, to that extent, the policy of the legislation would be frustrated.'
37 So too, the CCH Commentary at [¶89-950]: 'The policy is to refrain from awarding costs which would discourage people from reasonably asserting their rights', citing Baldi v SPC Australia Ltd [1995] VADT 5; (1995) EOC ¶92-765.
38 Although the costs jurisdiction in Victoria had changed over the years (see the legislative history set out in the unsuccessful appeal: Wilson v Phoenix Contracting Services Pty Ltd [1998] VSC 81; (1998) 14 VAR 52, at [1]), and no longer commenced from a 'no-costs' starting point, the comments made are useful, especially as the 'policy' of the Tribunal was generally to act as if it were a 'no-costs' jurisdiction for the 'policy' reasons set out above. The current position as a 'no-costs' jurisdiction is comprehensively discussed in Pizer's Annotated VCAT Act (4th ed, 2012) at [VCAT.109.260] 'Costs in the Anti-Discrimination List'. In general, the same position appears to have been maintained by the Victorian Civil and Administrative Tribunal.
39 However, over-reliance on such policy factors might fall foul of Questdale if they are elevated to a special or 'binding' rule rather than a general consideration to be applied prudently when exercising discretion in a 'no-costs' jurisdiction dealing with EO Act claims.
40 Here, Mr Smith's initial claims were 'accepted' by the EOC and limited assistance was offered by them, apparently leading to some sort of offer to settle (revealed by Mr Smith in his 'submissions' on costs). The failure to accept the offer appears to have contributed towards the withdrawal of further representation by the EOC. Arguably, at that point, Mr Smith should have carefully reconsidered his position and refrained from then embarking on what became an ever-widening and ultimately groundless case against the respondent, justifying, in turn, an extensive defensive response by Mr Crisafio.
41 Weighing up all of the considerations discussed above, I think that Mr Smith should contribute significantly to the respondent's costs. However, I also think that some regard should be had to his continuing disability and his general circumstances, including his limited income, paying attention to the 'combination of factors' alluded to above.
42 In my view, Mr Smith should contribute a total of $25,000 towards the respondent's costs covering both matters.
Time to pay
43 As mentioned, Mr Smith said that he could only pay costs at the rate of $5 a week. Notwithstanding that 'offer' (if that is what it was), the Tribunal is largely in the same position as the court was in Rayney. There, Chaney J noted, at [19], that:
Counsel for the applicant suggested that, were I minded to award an amount of fixed costs, I should provide for some time to pay. No particular time was suggested, nor did the applicant provide any evidence upon which some sensible assessment could be made as to a period over which payment should be made. It is no doubt open to the applicant to enter into negotiations with the second respondent [the Commonwealth of Australia] in relation to payment of costs. It would be inappropriate for me to select some time for payment without any foundation whatsoever to do so.
44 In Ninan, absent any submissions made by the applicants, I allowed the applicants 90 days to pay to the State of Western Australia the sum of $55,000 for costs. There, however, both of the applicants resided overseas and were in protracted litigation in various courts concerning their various land holdings, which appeared to be their only substantial assets in the jurisdiction.
45 Here, I do not think that I should make any Orders concerning the time to pay or the related mechanics of meeting the applicant's debt to the respondent. There is simply insufficient material available to the Tribunal 'upon which some sensible assessment could be made as to a period over which payment should be made'. I will, however, allow 21 days before the Orders come into effect. This time can be usefully deployed by the parties, if they wish, to negotiate the mechanics, if any, of Mr Smith's payment of the costs award made against him.
Orders
46 For the reasons given above, the Tribunal orders that:
1. Subject to paragraph 2 of these orders, the applicant is to pay to the respondent a total of $25,000 in respect of its costs in both matters.
2. These Orders do not have effect until the expiry of a period of 21 days from the date of their publication.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER
0
7
2