Townsend v Chief Executive, State Rail Authority

[1999] NSWADT 104

CITATION:	Townsend -v- Chief Executive, State Rail Authority [1999] NSWADT 104
DIVISION:	Retail Leases
APPLICANT:	Jeffrey Townsend & Rhonda Townsend
RESPONDENT:	Chief Executive, State Rail Authority
FILE NUMBER:	995009
HEARING DATES:	06/22/1999
SUBMISSIONS CLOSED:	06/25/1999
DATE OF DECISION:	26 October 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Retail Leases Act 1994
APPLICATION:	Retail tenancy claim -
MATTER FOR DECISION:	Application for Costs
REPRESENTATION:	Applicant: J Chippindall of counsel instructed by Peter Adams & Co Solicitors Respondent: A Gelbart of counsel
ORDERS:	1. No order as to costs

1 This decision relates to an application for costs made by the respondent following the dismissal of the applicant’s application for an interim order under the Retail Leases Act 1994 (the Act) restraining the respondent from removing the applicant from premises leased from the respondent: see Townsend v Chief Executive, State Rail Authority [1999] NSWADT 56.

2 Prior to 1 March 1999, the jurisdiction conferred by the Act was exercised by the Commercial Tribunal. On 1 March 1999 the jurisdiction was transferred to this Tribunal: Retail Leases Amendment Act 1998 (the Amendment Act), s 3 Schedule 1 [47] to [56], partially commenced 1 March 1999 - see Gov Gaz 26 Feb 1999, p 978.

3 The Commercial Tribunal’s power to award costs was conferred by s 32 of the Commercial Tribunal Act 1984 as follows -

“32 Costs

The Tribunal may make such award as it thinks fit as to by whom, to whom and to what extent costs are to be paid in, or in relation to, proceedings before it.”

4 It was usual in the Commercial Tribunal to follow the ordinary practice of ordering costs in favour of the successful party. For two examples see Jarre Pty Ltd v Vumbacca (unreported, 8 July 1998) and Berry & Hemingway v Peter Nance Pty Ltd (unreported, 20 February 1998).

5 The Amendment Act inserted a new provision into the Act dealing with costs being s 77A which provides:

“77A Tribunal may award costs

The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.”

6 Section 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) is the general provision bearing on this Tribunal’s power to award costs. Section 88 relevantly provides:

“88 Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it satisfied that there are special circumstances warranting an award of costs.

(2) …

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) …”

(The jurisdiction exercised by the Retail Leases Division of the Tribunal under the Act involves proceedings for an original decision within the meaning of sub-s (3) above: see s 7, s 37 and Schedule 2 Part 3B (Retail Leases Division) cl 2 Tribunal Act read in conjunction with Part 8 Div 3 of the Act.)

7 The (successful) respondent submits that as the successful party it is entitled to an award of costs. As to the relationship between s 77A of the Act and s 88 of the Tribunal Act, it submits that s 77A is paramount and that it manifests an intention that the usual costs power applies in proceedings before the Retail Leases Division. On the other hand the (unsuccessful) applicant contends that s 77A of the Act should be read in conjunction with s 88 of the Tribunal Act, giving rise to the interpretation that costs should only be awarded where ‘special circumstances’ justifying an order can be demonstrated. In that regard the respondent submits that if the applicant’s view prevails there are special circumstances here justifying an award of costs in its favour. The applicant submits there are no special circumstances.

8 In my view the construction to be preferred is that s 88(1) of the Tribunal Act states the primary rule to be applied in proceedings before the Tribunal. Further, where two or more statutes are relevant to an issue of interpretation, a construction should be adopted which ‘facilitates the sensible operation together’ of the statutes: per Kirby P in Cmr Stamp Duties v Permt Trustee Co Ltd (1987) 9 NSWLR 719 at 723.

9 Section 88(1) also allows for the possibility that the primary rule may be displaced or varied by the inclusion of the qualification “Subject to the rules of the Tribunal and any other Act or law …”.

10 An example of a provision which displaces s 88(1) is to be found in the costs provisions affecting the jurisdiction exercised by the Community Services Division of the Tribunal. That costs provision is contained in s 46 of the Community Services (Complaints, Review and Monitoring) Act 1993. It reads “The Tribunal may, if in the particular circumstances of the case it is of the opinion that it is appropriate to do so, make orders with respect to the payment of costs …” (s 46(1)). Relevantly, sub-s (4) provides that “This section applies despite the provisions of section 88 [of the Tribunal Act].”

11 Section 77A of the Act does not purport to displace s 88 of the Tribunal Act.

12 The other relevant provision is s 88(3). I interpret that provision as being designed to ensure that the primary rule is not applied in original jurisdictions where there is no provision for the award of costs in the enactment conferring jurisdiction. In the present instance the primary enactment does confer a power to award costs. So the pre-condition for the operation of s 88(1) set by s 88(3) is satisfied.

13 Situations could arise where the enactment conferring jurisdiction expressly set a different standard for the award of the costs to that contained in the primary rule found in s 88(1). In such a situation I consider that the provision in the enactment conferring jurisdiction would be accorded priority. That is the case for example in relation to the jurisdiction exercised by the Equal Opportunity Division of the Tribunal pursuant to the Anti-Discrimination Act 1977 (the Anti-Discrimination Act). Section 114 provides -

“114 Costs

(1) Except as provided by section 111(2) and subsection (2) each party to an inquiry shall pay his or her own costs.

(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.”

(Section 111(2) permits the Tribunal to order costs where an application under the Anti-Discrimination Act is dismissed because it is frivolous, vexatious, misconceived or lacking in substance.)

14 It will be seen that the primary rule set by the Anti-Discrimination Act in s 114(1) is that costs not be awarded subject to the exception contained in s 114(2) and the qualification found in s 111(2).

15 Section 88(1) is expressed in a way which is somewhat more open to the exercise of costs powers than s 114 of the Anti-Discrimination Act. Section 88(1) opens with the words “the Tribunal may award costs in relation to proceeding before it, but only if …”. Whereas s 114 of the Anti-Discrimination Act begins with the strict statement that “each party to an inquiry shall pay his or her own costs”. But once the exceptions and qualifications in each instance are taken into account there may not be a significant difference in the net effect of the different formulations.

16 Section 88(1) states a rule which applies, unless displaced by the enactment conferring jurisdiction, across a wide variety of jurisdictions. In contrast s 114 of the Anti-Discrimination Act relates to one category of jurisdiction. The access objectives of anti-discrimination legislation would be ill-served if the Tribunal did not ordinarily observe the strict rule set by s 114(1).

17 I now turn to the present application. The applicants/lessees, who first acquired the premises in 1990, had a five year lease executed on 26 July 1996 and commencing on 1 April 1996. Due to a decision to undertake a major upgrade of the station connected with the Olympic Games transport strategy, the demolition clause in the lease was invoked by notice dated 24 December 1998 giving notice of termination effective 25 June 1999. The covering letter sent with an earlier notice (dated 17 December 1998 and subsequently not relied upon) did include an offer of alternative premises at the station to be constructed by the respondent.

18 The Tribunal was disinclined to make an interim order preventing the termination notice taking effect having regard in particular to the lateness of the making of the application: Townsend v Chief Executive, State Rail Authority [1999] NSWADT 56. The broader interim orders jurisdiction conferred on the Tribunal by the Act’s new s 72 commenced on 1 March 1999. The application for an interim order was made on 20 June 1999 and heard on 22 June 1999 only two days before the expiry of the notice given six months earlier.

19 Nonetheless it is the case that the applicants had been granted a five year lease of the kiosk at a particular location at a major railway station and found themselves required to cease operation after three years.

20 Mr Gelbart for the respondent submitted that special circumstances should only be interpreted as meaning ‘not the ordinary circumstances’. He submitted that the present case did not involve the ordinary circumstances that arise under the Tribunal Act. He said the ordinary circumstances to which s 88 is applicable are matters brought in the Tribunal’s review jurisdiction relating to government administration and citizens.

21 He drew attention to the Fair Trading Tribunal Act 1998 which provides (s 48(3)) that costs are not to be awarded by the Fair Trading Tribunal where the amount in issue does not exceed $10,000 unless there are ‘exceptional circumstances’. I agree with his submission that this sets a higher standard, and that ‘special’ has a less stringent connotation than ‘exceptional’.

22 Mr Gelbart gave the following reasons justifying an award of costs in favour of the respondent:

(a) the application totally failed

(b) the application, having regard to the delay and absence of relevant evidence, was unmeritorious

(c) the subject of the application was a matter of commerce between the parties

(d) the subject matter of the application did not involve a matter of government administration affecting a citizen

(e) the parties are represented by solicitors and by counsel.

23 As to these matters, I agree that the application was affected by delay and that that factor was critical to its lack of success. I do not regard the applicant’s application as frivolous, though it was brought very late in the period of the termination notice. It was affected by some confusion in relation to the remedy sought. A stay order was sought pursuant to s 60 of the Tribunal Act. That provision only applies to applications for review and is not relevant to proceedings, such as the present, for an original decision.

24 As to the degree to which the dispute can be said to be of a commercial character, some regard has to be given, I consider, to the creation of the Retail Leases Division. This specialised tribunal jurisdiction (first conferred on the Commercial Tribunal in 1994) results from legislation seeking to redress through statutory protections the imbalances that have affected the rights of lessees under retail leases in the past: for a recent discussion, see the Fair Trading Report of the Federal Parliament released in 1997 (`Finding a balance, Towards fair trading in Australia’, Report by the House of Representatives Standing Committee on Industry, Science and Technology, Parliament of the Commonwealth of Australia, May 1997, ch. 2). The present case is perhaps an illustration of an imbalance.

25 As to the extent of costs incurred, I recognise that the hearing involved counsel and a solicitor for each party. But it did prove to be a short hearing.

26 Some regard should also be given to the access objectives which the Tribunal is intended to serve. Section 3 of the Tribunal Act provides that -

“The objects of the Act are as follows:

…

(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair;

(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner …”.

27 An unduly strict application of the costs discretion would tend to interfere with the achievement of these objectives. I also note that in the present instance the application was brought in a situation where the question of the way in which the Tribunal might exercise its discretion to make interim orders had not previously been tested.

28 In light of these factors, I am inclined to the view that ‘special circumstances’ justifying an award of costs are not demonstrated.

29 Accordingly the respondent’s application for costs is not granted.

Determination

30 No order as to costs.