Tuffy v Vaughan & ors. (No 2)

[2009] NSWADT 242

CITATION:

Tuffy v Vaughan & ors. (no 2) [2009] NSWADT 242

DIVISION:

General Division

PARTIES:

APPLICANT
Michael Tuffy

FIRST RESPONDENT
Leigh Vaughan

SECOND RESPONDENT
John Weate

THIRD RESPONDENT
Linda Gill

FILE NUMBER:

083287

HEARING DATES:

On the papers

SUBMISSIONS CLOSED:

22 June 2009

 
DATE OF DECISION: 

21 September 2009

BEFORE:

Britton A - Deputy President; Higgins S - Judicial Member; Antonios Z - Non-Judicial Member

CATCHWORDS:

costs

LEGISLATION CITED:

Local Government (General) Regulation 2005
Administrative Decisions Tribunal Amendment Act 2008
Local Government Act 1993
Victorian Civil and Administrative Tribunal Act 1998

CASES CITED:

Aussie Invest Corporation Pty Ltd v Hobsons Bay CC [2004] VCAT 2188
B & L Linings Pty Ltd & anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14
Bourne v Murphy (1996) 92 LGERA 329
Cachia v Hanes (1994) 179 CLR 403
Corrigan & Gibson v Watson [2009] NSWADT 110
Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6
GN & anor v Public Guardian & anor [2009] NSWADTAP 6
Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118
R v Gray; Ex Parte Marsh (1985) CLR 351
Townsend v State Rail Authority [1999] NSWADT 104

REPRESENTATION:

APPLICANT
G Wells, agent

FIRST AND SECOND RESPONDENT
J Vaughan, solicitor

THIRD RESPONDENT
In person

ORDERS:

1.Mr Tuffy is to pay the costs of Ms Vaughan and Mr Weate as agreed or assessed
2.Mr Tuffy is to pay Ms Gill’s disbursements in the sum of $2708.65
3. Mr Tuffy’s application for costs against Ms Gill is dismissed.

REASONS FOR DECISION

1 In September 2008 Michael Tuffy, Leigh Vaughan, John Weate and Linda Gill were elected as councillors of Great Lakes Council. Subsequently, Mr Tuffy made an application to the Administrative Decisions Tribunal under s 329 of the Local Government Act 1993 for orders that fellow councillors Ms Vaughan, Mr Weate and Ms Gill be dismissed from office because of alleged irregularities in the manner in which they had been elected.

2 The proceedings were heard over three days in Taree. Mr Tuffy’s application made in respect of all councillors was dismissed. We gave oral reasons for that decision. With one exception we were not satisfied that the conduct complained of constituted an ‘irregularity’ for the purpose of s 329 of the Local Government Act. Nor were we satisfied that that irregularity or any of the alleged irregularities were of such a nature as to have rendered the election uncertain.

3 Mr Tuffy was represented in these proceedings by agent, Dr Graeme Wells. Ms Vaughan and Mr Weate were legally represented. Ms Gill appeared in person.

4 All parties now apply for costs. Mr Tuffy seeks costs against Ms Gill. Ms Vaughan, Mr Weate and Ms Gill seek costs against Mr Tuffy. These reasons address these applications.

Power to award costs

5 Section 329(6) of the Local Government Act gives the Tribunal power to award costs in these proceedings. The Tribunal’s costs power is contained in s 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). Since 1 January 2009, a new criterion for awarding costs replacing that of ‘special circumstances’, came into force as a consequence of amendments introduced by the Administrative Decisions Tribunal Amendment Act 2008. The new costs provision applies to proceedings such as these where the application and proceedings were made on or commenced, but not finally determined, before 1 January 2009 (Tribunal Act, Schedule 5, Part 11, cl 43(2)(i)).

6 The new provision is in the following terms:

1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.
(1A) 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 is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(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) In this section, costs includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

7 The operation of this provision has been considered by this Tribunal (differently constituted) in Corrigan & Gibson v Watson [2009] NSWADT 110 and GN & anor v Public Guardian & anor [2009] NSWADTAP 6.

8 Corrigan & Gibson v Watson also concerned an application made under the Local Government Act. The Tribunal refused the application for costs and made these comments about the new provision:

9 Section 88 begins with a general statement of principle that each party to proceedings is to bear his or her own costs. That principle is different from the principle that applies in courts. In the absence of special circumstances, courts generally exercise their discretion to award costs in favour of the successful party, that is ‘costs follow the event’: Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 at 207-208. Section 88 gives the Tribunal a discretion to award costs ‘but only if it is satisfied that it is fair to do so’ having regard to certain matters which are listed at (a) to (e). Those matters include ‘any other matter that the Tribunal considers relevant’. Contrary to the Respondent’s submission, decisions of courts in relation to the circumstances in which it is appropriate to award costs on an indemnity basis, are of limited relevance to proceedings in the Tribunal.

9 The initiating application made by Mr Tuffy was made under s 329 of the Local Government Act which provides:

(1) Any person may apply to the Administrative Decisions Tribunal for an order that a person be dismissed from civic office.
(2) On any such application, the Tribunal may order the dismissal of a person from civic office:
(a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or
(b) if the person is disqualified from holding civic office.

10 In these proceedings we followed the approach adopted by the Court of Appeal in Bourne v Murphy (1996) 92 LGERA 329, to the application of s 329 and in respect of each alleged irregularity asked:

First, does the alleged irregularity represent a potential breach of any provision of the Act or the election Regulations? (per Gibbs CJ in R v Gray; Ex Parte Marsh (1985) CLR 351 at 368 and adopted by Beazley J in Bourne v Murphy at 358)

Second, was that irregularity, either separately or in combination with any other irregularity, of such a nature that the result of the election was rendered uncertain?

11 No issue was taken by any of the parties with this approach.

Background to substantive application

12 To put the parties’ submissions on costs in context, it is necessary to sketch in the factual background to these proceedings.

13 On 29 September 2008, Mr Tuffy lodged an application under s 329 of the Local Government Act for orders that councillors Vaughan and Weate be dismissed. A month later, Mr Tuffy filed a further application seeking an order that councillor Gill also be dismissed.

14 Mr Tuffy contended that there were a number of irregularities in the manner in which Ms Vaughan, Mr Weate and Ms Gill had been elected to office. At the commencement of the hearing the nature of the purported irregularities was unclear. Mr Tuffy was ordered to provide each respondent with particulars of the purported irregularities relevant to them.

15 At hearing the alleged irregularities were further refined. In our Reasons for Decisions (pp 2, 3) we gave this summary of the alleged irregularities:

Irregularities relating to Ms Vaughan and Mr Weate
Allegation 1.

That in contravention of s 356 of the Regulation [Local Government (General) Regulation 2005], Ms Vaughan distributed electoral material, namely, the material contained in her website that had not been registered under subdiv 6 of Div 9A of the Regulation (‘non-registration allegation’).

Allegation 2. That in contravention of cl 356G of the Regulation, Ms Vaughan’s website failed to carry the name and address of the person who had authorised the material contained on it (‘the non-authorisation allegation’).

Irregularities relating to Ms Vaughan only
Allegation 3.

That in contravention of cl 356B(2) of the Regulation, Ms Vaughan’s website carried an image of the logo of the Great Lakes Council. It was also asserted that constituted an ‘irregularity’, within the extended meaning of the term.

Allegation 4. That in contravention of cl 356M of the Regulation, on polling day Ms Vaughan gave a council fridge magnet to a voter.

Irregularities relating to Ms Gill
Allegation 5.

That on polling day, a poster advertising Ms Gill’s candidature was displayed at Green Point polling booth which did not comply with cl 356G of the Regulation, that is, it did not carry the name of the person who had authorised it.

Allegation 6. Throughout the ‘regulated period’, Ms Gill was referred to on the Greens’ website as a Greens councillor and that that material, i.e., the website material, was unregistered.

Our decision in respect of the substantive application

16 We decided that none of the irregularities alleged in respect of Ms Vaughan and Mr Weate constituted an ‘irregularity’ for the purpose of s 329 of the Local Government Act.

17 In respect of Ms Gill, we found one irregularity established. She conceded that for part of polling day a poster advertising her candidature had been displayed that did not carry the authorisation required by cl 356G of the Regulation (Allegation 5).

18 We went on to consider whether that irregularity rendered the result of the election uncertain. For more abundant caution we also considered whether, for argument’s sake, those matters identified by Mr Tuffy as irregularities in respect of all respondents could have rendered the election uncertain. We concluded that none could reasonably be supposed to have affected the election results or to have rendered the election uncertain.

Submissions

19 Ms Vaughan and Mr Weate contend that Mr Tuffy’s applications were vexatious and lacked merit. They argue that allegations concerning Mr Weate’s citizenship were ‘irrelevant and damaging’. They also contend that regardless of any irregularities, Mr Weate would have been elected given his position as number one on the Labor ticket, and accordingly the second limb of Bourne v Murphy could not be established, i.e. the nature of the irregularity was such that it rendered the result of the election uncertain.

20 In respect of the application concerning Ms Vaughan they contend that no evidence was adduced to show an irregularity or that any voter may have changed his or her vote as a result. The ‘pleadings’ it was contended were ‘nothing but speculation and uninformed opinion’.

21 Ms Gill also argues that Mr Tuffy’s application was vexatious and without substance. In effect, it was, she contends, an abuse of process.

22 Mr Tuffy contends that his applications under s 329 were motivated by a desire to promote the public interest. What that public interest is, he does not specify. He denies that the proceedings were vexatious and an abuse of process. He says that it is relevant that he complied with all directions and orders of the Tribunal. He asserts that he did not prolong proceedings and contends that ‘the Tribunal believed that there was a prima facie case’.

Should an order for costs be made in favour of Ms Vaughan and Mr Weate?

23 The issue to be decided is whether the circumstances warrant a departure from the ordinary rule that parties to proceedings in the Tribunal will bear their own costs. Such order can only be made if we are satisfied that ‘it is fair to do so’ having regard to the factors listed in s 88(1A) of the Tribunal Act.

24 Conduct of proceedings Mr Tuffy largely complied with directions and did not cause an adjournment. There is no evidence that he attempted to deceive another party or the Tribunal and nor is this suggested.

25 Prolonging length of proceedings We accept as argued by Mr Weate and Ms Vaughan that Mr Tuffy’s failure to clearly identify the alleged irregularities from the outset necessitated additional directions hearings. We also agree that the proceedings were unnecessarily complicated because of the lack of precision in his formulation of the allegations.

26 The relative strengths of the claims made by each of the parties As noted, we found none of the alleged irregularities involving Mrs Vaughan and Mr Weate constituted an irregularity for the purpose of s 329 of the Local Government Act.

27 No evidence was adduced to support a claim that the alleged irregularities either separately or in combination rendered the election uncertain. Nor was Mr Tuffy able to point to any evidence to support that inference being drawn. Nor did he advance any hypothesis that might explain how the alleged irregularities might have rendered the election uncertain. Rather, he baldly contended that the irregularities ‘might have’ rendered the result of the election uncertain.

28 We concluded that it was inherently implausible that any of the alleged irregularities either separately or in combination could have had a bearing on the election outcome.

29 Mr Tuffy contends that the Tribunal ‘believed that a prima facie case had been established’. As we understand it, this assertion is based on comments made by Deputy President Hennessey on 2 December 2008, to the effect that an application for summary dismissal could not be determined at a directions hearing and suggesting that Ms Gill obtain legal advice if she wished to make such application. Mr Tuffy has not taken us to any orders or findings to support the contention that the Tribunal ‘believed’ a prima facie case had been made out.

30 Nature and complexity of proceedings The proceedings were three days in length and involved four directions hearings.

31 Any other matter As was evident from the submissions made on his behalf, Mr Tuffy was aware from the outset that the second limb of Bourne v Murphy was critical to the success of his application. Neither Mr Tuffy nor his agent, Dr Wells are strangers to this jurisdiction (see Tuffy v Chadban & Anor [2004] NSWADT 216).

32 Our conclusions The issue for us to determine is whether it would be fair to make an award of costs having regard to the matters listed in s 88(1A).

33 We agree with Mr Tuffy that a cautious approach should be adopted in deciding whether to exercise the discretion to award costs. The too ready ordering of costs against unsuccessful applicants could have a ‘chilling effect’ and undermine the ‘access objectives’ enshrined in the Tribunal Act. (See Townsend v State Rail Authority [1999] NSWADT 104 at [13] and [16] and Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23].)

34 Mr Tuffy’s submissions in answer to the costs applications of Ms Vaughan and Mr Weate do not meet the substance of their claims against him. Rather, he gives a long dissertation on the procedural history. They appeared more designed to demonstrate that he had not caused unnecessary delay. Be that as it may, he did not justify in any material fashion the decision to bring these proceedings which were essentially founded on, at best, trivialities and, at worst, nothing at all but speculation.

35 When subjected to close scrutiny, Mr Tuffy’s claims against Ms Vaughan and Mr Weate were revealed to be so flimsy as to provoke the suspicion that his true motivation was not ‘the public interest’. The absence of any evidence to support a finding in regard to the second element of an application under s 329 meant that the application was hopeless. It is relevant in our view that Mr Tuffy was aware from the outset that the second element was critical to the success of his application and that the onus of establishing that element rested with him.

36 We do not accept the argument that the respondents’ failure to apply for summary dismissal indicates that they in effect conceded that Mr Tuffy had established a prima facie case. A decision not to apply for summary dismissal cannot, in our view, be characterised as tacit agreement that the initiating application has merit. A respondent is not obliged to move for summary dismissal whatever their views might be of the strength of their opponent’s application. As set out above, Mr Tuffy’s view about the Tribunal’s assessment of the strength of his claim is mistaken.

37 We accept that in this matter the factors relevant to s 88(1A)(a),(b) and (d) would not support an award for costs. As noted, while there was some imprecision in the formulation of the allegations, of itself this would not warrant an award especially given that Mr Tuffy was not legally represented. However Mr Tuffy’s claim in our view had no tenable basis in law or fact given the absence of any evidence or even reasoned argument to support the second element under s 329 of the Local Government Act (see s 88(1A)(c). Despite Mr Tuffy not being legally represented he at all times knew establishing this element was critical to the success of his application. Having regard to this and all relevant factors we are satisfied that in the circumstances of this matter it would be fair to order Mr Tuffy to pay the costs of Ms Vaughan and Mr Weate.

Should an order for costs be made in favour of Ms Gill?

38 As noted we found one irregularity established in respect of Ms Gill, that is the non-authorisation of the poster displayed at Green Point polling booth for part of polling day. We found that that irregularity had no bearing on the election result.

39 While the allegations made against Ms Gill were different to those made in respect of the other respondents, the considerations in respect of awarding costs are largely the same. In our view the application against Ms Gill also had no tenable basis in fact or law and was hopeless from the outset. We are satisfied that in the circumstances of this matter it would be fair to order Mr Tuffy to pay the costs of Ms Gill.

40 Nature of costs claimed by Ms Gill Ms Gill was not legally represented. She claims ‘costs’ for, among other things, the time spent in preparing for and participating in these proceedings.

41 In this Tribunal it has generally been accepted that a self-represented party is only entitled to recover their reasonable out-of-pocket expenses or disbursements. The Appeal Panel in Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6 endorsed that approach explaining:

7 ... [T]he purpose of the award of costs is to assist parties in respect of the engagement of legal representation. There is clear authority that costs orders cannot be made in favour of unrepresented applicants in respect of (what might be described as) the inconvenience and loss of income associated with their attendance at proceedings to represent themselves: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. [Now see also, Atlas v Kalyk [2001] NSWCA 10.] ...

42 A number of recent decisions of the Tribunal have questioned the correctness of this approach. In B & L Linings Pty Ltd & anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14, the Appeal Panel considered in detail the meaning of the term ‘costs’ in s 88 of the Tribunal Act. The Panel at [84] referred to Aussie Invest Corporation Pty Ltd v Hobsons Bay CC [2004] VCAT 2188, which concerned an application for costs brought under s 109 of the Victorian Civil and Administrative Tribunal Act 1998, by a self represented party for lost wages and travelling expenses incurred in attending a hearing. In dismissing that application the President said:

13 The decision of the High Court of Australia in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 has sometimes been regarded as an obstacle to the tribunal awarding costs to an unrepresented party. However, in my opinion, this decision has been applied without a proper understanding of the facts upon which the decision was made, which are fundamentally different than those, which apply to this tribunal. Certainly, for the reasons which follow, I do not regard the decision of the High Court in Cachia as preventing the tribunal making an order that a party pay the costs of an unrepresented party in respect of lost wages and travelling costs incurred in attending a hearing of a proceeding … .

14 In Cachia the High Court was concerned with circumstances where the appellant had been awarded costs in proceedings in the Supreme Court of New South Wales in which the appellant had not been legally represented. On taxation of the appellant's bill of costs he claimed compensation for the loss of his time spent in the preparation and conduct of his case and for out of pocket expenses, being travelling expenses. These claims were disallowed. Ultimately the High Court confirmed the decision disallowing these costs. The principal judgment of the Court made the following comment in the context of the Rules of the Supreme Court of New South Wales:

It is fundamental to the appellant's argument that the time he lost in preparing and conducting his case constitutes "costs" within the meaning of this rule. He is, however, unable to sustain that proposition. The "costs" provided for in the rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the rule speaks of "costs".


15 In Cachia the High Court observed that since the introduction of the Statute of Gloucester in 1278 the notion of cost was intended to apply to only professional legal costs actually incurred in the conduct of litigation. The High Court noted that Coke had observed of the Statute of Gloucester that the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expenses of his travel and loss of time".

16 But costs are ultimately a matter that turns on the interpretation of a statute. And it might be thought that things have moved on since 1278.

17 Whatever may be the case in the Supreme Court of New South Wales, it does not automatically apply to proceedings before the Victorian Civil and Administrative Tribunal. The circumstances of the tribunal are clearly much different. Hence it is necessary to consider the matter by reference to the constitution, purpose and practices of the tribunal. Applying this method, the decision of the High Court in Cachia is inapplicable.

43 The Appeal Panel in B & L Linings decided at [86] that costs under s 88(1) of the Tribunal Act may include the costs incurred by a successful party in engaging an agent, who is not an Australian legal practitioner, to represent him or her.

44 In our view absent argument from the parties on this point it would be inappropriate to determine whether costs under s 88(1) include the lost wages of a self represented party.

45 Accordingly, Ms Gill’s entitlement to costs is limited to her out-of-pocket expenses. We are satisfied that the expenses claimed at Items 2, 3 and 4 and set out in her costs application are reasonable. Accordingly we order that Mr Tuffy pay her expenses of $2708.65.

Should an order for costs be made in favour of Mr Tuffy against Ms Gill?

46 Mr Tuffy’s claim for costs against Ms Gill is based on her missing a directions hearing on 11 November 2008, which he claims resulted in unnecessary cost to him. He also claims costs in respect of the filing and serving of a summons on Ms Gill to produce documents. Finally, he presses his claim on the basis of the justification of his complaint about her unauthorised poster.

47 Missed Directions hearing Mr Tuffy contends that by not appearing at the 11 November 2008 directions hearing Ms Gill ‘vacated her rights’.

48 When the Tribunal listed the application made in respect of Ms Vaughan and Mr Weate for directions on 11 November the application made in respect of Ms Gill had not been lodged. That application was not lodged until 31 October 2008.

49 Two days before the 11 November directions hearing Ms Gill received from Mr Tuffy copies of the application lodged in respect of her and the notice of hearing advising Mr Tuffy of the 11 November listing. On her account, after receiving that information she contacted the Registrar and was advised she was not required to attend that hearing. That claim is consistent with the Registrar’s file note.

50 Need for summons As we understand it Mr Tuffy claims that he was obliged to request that a summons be issued on Ms Gill because she had did not serve him with evidence she had filed with the Tribunal. The documents sought were described in the summons in the following terms:

Copies of letters written by yourself and sent to ‘the Greens’ and (sic) ‘Green Point Progress Association’ and these organisations replied to you and your subsequent letter to the ADT (with the above mentioned documents)-documents now filed with the ADT but not delivered to myself (Dr Wells) as official agent of Councillor Tuffy (Applicant).

51 A review of the Tribunal’s file reveals that when Mr Tuffy requested that the summons be issued, contrary to his belief, Ms Gill had not filed any evidence with the Tribunal. Furthermore she had not been directed to file evidence by that time.

52 It is unclear on what basis Mr Tuffy contends that Ms Gill was in default of the Tribunal’s directions and therefore that he was ‘obliged’ to request the issue of a summons.

53 Conclusion As stated, the ordinary rule is that parties will bear their own costs unless the Tribunal is satisfied that because of one or more factors arising under s 88(1A), it is fair to make a costs order.

54 Ms Gill was not in default of the Tribunal’s directions by not attending the 11 November direction hearing. At that time she was not a party to the proceedings involving Mr Weate and Ms Vaughan. Nor was she in default of any directions made by the Tribunal when the summons at the request of Mr Tuffy. But even if she were, any cost or inconvenience incurred by Mr Tuffy would have been negligible. It is not generally the Tribunal’s practice to punish an isolated and minor default that, in the scheme of things, added little to the overall costs of the proceedings.

55 For these reasons we are not satisfied that it would be fair to award costs in these circumstances and accordingly decline Mr Tuffy’s application.

Orders

1. Mr Tuffy is to pay the costs of Ms Vaughan and Mr Weate as agreed or assessed.

2. Mr Tuffy is to pay Ms Gill’s disbursements in the sum of $2708.65.

3. Mr Tuffy’s application for costs against Ms Gill is dismissed.