Treneski v Football South Coast Ltd

[2021] NSWCATCD 71

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Treneski v Football South Coast Ltd [2021] NSWCATCD 71

Hearing dates:

On the papers

Date of orders:

21 June 2021

Decision date:

16 June 2021

Jurisdiction:

Consumer and Commercial Division

Before:

A Nightingale, General Member

Decision:

1. A hearing on costs is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.

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

Catchwords:

COSTS — Civil and Administrative Tribunal Act2013 (NSW)

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

Cripps v G & M Mawson [2006] NSWCA 84

Oshlack v Richmond River City Council [1998] HCA 11; (1998) 193 CLR 72

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Category:

Costs

Parties:

Daniel Treneski (Applicant)
Football South Coast Ltd (Respondent)

Representation:

Counsel:
James Sleight (Respondent)

File Number(s):

GEN 20/44463

Publication restriction:

Nil

REASONS FOR DECISION

THE CLAIM

1. This is a claim by the respondent for costs in the substantive proceedings made by an application filed on or about 21 October 2020.

2. The substantive proceedings were dismissed following orders with reasons made on 15 April 2021 on the basis that the Tribunal did not have jurisdiction to determine the application. The hearing of the matter took place on 9 March 2021. The respondent made an application to the Tribunal for costs on 19 April 2021.

3. Directions were made on 19 April 20221 for the parties to provide documents in relation to the costs application and to include submissions about whether an order should be made dispensing with a hearing of the costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and allowing the matter to be dealt with on the papers.

4. On 28 April 2021, the respondent sent an email to the Tribunal requesting an extension of time to file written submissions to enable it to engage in negotiations with the application. The Tribunal extended the timetable allowing the parties a further week to provide written submissions.

5. The respondent provided submissions regarding the issue of costs via email and hard copies to the Tribunal and consented to the matter in relation to costs being determined on the papers.

6. The applicant did not file any submissions in relation to costs.

SUBMISSIONS BY THE RESPONDENT

7. The respondent claims that the applicant made serious allegations against, being an organisation that was the governing body for the administration and promotion of Association football in the Illawarra South Coast.

8. The applicant had failed to exhaust the respondent’s proscribed procedures in relation to his suspension prior to commencing proceedings in the Tribunal.

9. The Tribunal found that even if the Tribunal did have jurisdiction, on the evidence before it, the responded had afforded procedural fairness to the applicant and the applicant had failed to adopt the correct procedure for pursuing an internal appeal of his suspension.

10. The respondent says that the applicant’s case was of a serious nature as it challenged the impartiality of the governing body of a sport. Further, the applicant raised complex questions as to whether he had been afforded procedural fairness which required the respondent to obtain legal advice and seek to be legally represented at the hearing.

11. The respondent says that the applicant’s failure to avail himself of the respondent’s internal appeal processes made the application frivolous and vexatious. Further, the prosecution of the proceedings in the Tribunal without jurisdiction was misconceived and the finding that the applicant had been afforded procedural fairness was found to be lacking in substance.

12. The respondent also claimed that the finding that the Tribunal had no jurisdiction demonstrated that the claim had no tenable basis in fact.

13. The respondent says that it highlighted to the applicant by way of letters dated 24 February 2021 and 17 December 2020 that the applicant’s case had no tenable basis in law and that it was incurring legal costs and had made offers to the applicant in an attempt to resolve the matter. Further, the applicant had been placed on notice that the respondent would apply for costs at the Tribunal.

DISPENSING WITH A HEARING

14. Section 50 of the NCAT Act relevantly provides:

50   When hearings are required

(1)  A hearing is required for proceedings in the Tribunal except—

…

(c)  if the Tribunal makes an order under this section dispensing with a hearing, or

…

(2)  The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)  The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

(a)  afforded the parties an opportunity to make submissions about the proposed order, and

(b)  taken any such submissions into account.

(4)  The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

…

15. The respondent has submitted that the matter can be dealt with on the papers. The applicant did not provide any submissions to the Tribunal. In the circumstances, the Tribunal is satisfied that the issue of costs can adequately be determined in the absence of the parties by consideration the written submissions. The parties would be put to an unnecessary expense if a hearing on costs were to be held.

CONSIDERATION

16. Subsection 60(1) provides: that each party to proceedings in the Tribunal is to pay the party’s own costs. Subsection 60(2) relaxes that position by providing that an order for costs may be made if there are special circumstances and subsection 60(3) contains the following non-exhaustive list of the matters to be considered when determining whether there are special circumstances:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g) any other matter that the Tribunal considers relevant.

17. Clause 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) modifies the application of s 60 in proceedings before the Consumer and Commercial Division of the Tribunal. However, cl 38 only applies to matters where:

(a) the amount claimed or in dispute is between $10,000 and $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the NCAT Act; or

(b) the amount claimed or in dispute in the proceedings is more than $30,000.00.

18. As the amount claimed in this application $9,721 (i.e. less than $10,000), neither clause 38(a) nor clause 38(b) of the NCAT Rules have any application in these proceedings.

19. In any event, clause 38(a) of the NCAT Rules refers to clause 10(2) of Schedule 4 to the NCAT Act. That clause applies in circumstances where the Tribunal is of the opinion that a party is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings. In such circumstances clause 10(2)(a) provides that the Tribunal may: “if the party causing the disadvantage is the applicant – order that the proceedings (or part of the proceedings) be dismissed or struck out.” Clause 10(3) sets out the matters the Tribunal is required to consider before making any such order.

20. In this case the Tribunal dismissed the proceedings due to a lack of jurisdiction. There was no suggestion by the Tribunal that the proceedings were dismissed under clause 10(2) of schedule 4. Accordingly clause 38(a) of the NCAT Rules does not apply in this matter.

21. For the purposes of s 60(2) of the NCAT “special circumstances” are circumstances that are out of the ordinary. They do not have to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], citing Cripps v G & M Mawson [2006] NSWCA 84 at [60].

22. Where a court or a tribunal is conferred with the discretion to award costs, such a discretion must be exercised judicially and not capriciously (Oshlack v Richmond River City Council [1998] HCA 11; (1998) 193 CLR 72 at 81). Further, the fundamental rationale for the awarding of costs is that such an award is compensatory, not punitive: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97.

23. An order for costs should remain out of the ordinary. The mere fact that the applicant was unsuccessful does not of itself give rise to special circumstances warranting an order for costs in favour of the respondent.

24. The Tribunal is not satisfied that the applicant conducted the proceedings in a way that unnecessarily disadvantaged the respondent.

25. The Tribunal finds that the applicant did not unreasonably prolong the time taken to complete the proceedings as notwithstanding the applicant’s late filing of documents, the matter remained listed for the same hearing date of 9 March 2021.

26. The respondent submitted that the application to the Tribunal was misconceived as the Tribunal lacked jurisdiction and the applicant’s case had no tenable basis in fact.

27. The application was dismissed due to a lack of jurisdiction. It is common in Tribunal proceedings, particularly where a party is legally unrepresented, for applicants not to understand the nature of the Tribunal’s powers and to seek orders which fall outside the scope of the Tribunal’s jurisdiction. Determining the Tribunal’s jurisdiction involves an understanding and analysis of the underlying legislative framework. This can be a difficult and a technical legal exercise and the Tribunal would not expect legally unrepresented parties to do easily.

28. The respondent claims that the fact that the applicant had not exhausted its internal appeal procedures made the application frivolous and vexatious.

29. The Tribunal is not satisfied that the proceedings bought by the applicant were frivolous, vexatious or otherwise misconceived or lacking in substance.

30. The Tribunal is not satisfied that the nature or complexity of the proceedings were such as to find special circumstances existing.

31. The Tribunal is not satisfied that the applicant has refused or failed to comply with his duty imposed by s36(3) of the NCAT Act, being the duty to cooperate with the Tribunal to give effect to the guiding principal for the Act and in its application to the proceedings in the Tribunal, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

32. The applicant was not legally represented. The respondent was engaged in litigation that it was obliged and entitled to defend. However, the Tribunal is not satisfied that there are special circumstances that warrant an award for the respondent’s costs.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 03 September 2021