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Webb v Port Stephens Council

Webb v Port Stephens Council

Case [2023] NSWCATAD 137 6 June 2023

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Webb v Port Stephens Council [2023] NSWCATAD 137
Hearing dates: On the papers
Date of orders: 6 June 2023
Decision date: 06 June 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Levine, Senior Member
Decision:
(1) An oral hearing on the issue of costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(2) Pursuant to section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Applicant, Ms Telina Webb, is ordered to pay the Respondent, the Port Stephens Council, costs in the amount of $7,000.00 within 28 days of this order being made.
(3) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to either the Applicant or the public.

Catchwords:
COSTS – Section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – whether special circumstances established – whether all factors listed in section 60(3) must be satisfied or whether it is a non-exhaustive list of considerations – whether there was unreasonable incurrence of costs – whether there was a failure to comply with the duty under section 36 of Civil and Administrative Tribunal Act 2013 (NSW) – whether an award of fixed costs is appropriate and if so in what amount

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Government Information (Public Access) Act 2009 (NSW)

Cases Cited:
203 Castlereagh Street Pty Limited v Skybloo Limited [2017[ NSWCATAP 29
Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP75
Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294
Bilic v Commissioner of Police [2022] NSWCATAD 93
Commissioner of Police v Robinson (No. 2) [2022] NSWCATAP 280
Cripps v G&M Mawson [2006] NSWCA 84
Grasso v Owners of Strata Plan No 52399 NSWCATAP 91
Hamod v State of New South Wales [2002] FCA 424
McEwan v Port Stephens Council (No. 2) [2022] NSWCATAP 386
McEwan v Port Stephens Council (No. 2) [2022] NSWCATAD 308
Oshlak v Richmond River Council [1998] HCA 11
Webb v Port Stephens Council [2023] NSWCATAP 133
Webb v Port Stephens Council [2022] NSWCATAD 404
Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104

Texts Cited:
None

Category: Costs
Parties: Telina Webb (Applicant)
Port Stephens Council (Respondent)
Crown Solicitor (Interested Party)
Representation: Solicitors:
Applicant (Self-represented)
Lindsay Taylor Lawyers (Respondent)
Crown Solicitor (Interested Party)

File Number(s): 2022/00138219
Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to either the Applicant or the public.

REASONS FOR DECISION

Introduction

Telina Webb (“Ms Webb” or “Applicant”) applied to the New South Wales Civil and Administrative Tribunal (“Tribunal” or “NCAT”) for administrative review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Webb v Port Stephens Council

Details

AGLC: Webb v Port Stephens Council [2023] NSWCATAD 137
Case: [2023] NSWCATAD 137
Decision Date: 06 June 2023

CaseChat Overview and Summary

Ms Telina Webb brought an application to the Civil and Administrative Tribunal (CAT) against the Port Stephens Council regarding an administrative decision. The dispute centred on whether the Council had acted unreasonably in its decision-making process and whether it had complied with its statutory obligations. The CAT was required to determine whether the applicant was entitled to costs under section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) and if so, what amount was appropriate. The key legal issues involved whether the applicant had established special circumstances warranting an award of costs and whether all factors listed in section 60(3) of the Act must be satisfied or if they form a non-exhaustive list of considerations. The court also had to assess whether there was an unreasonable incurrence of costs, a failure to comply with the duty under section 36 of the Act, and whether an award of fixed costs was appropriate.

The CAT held that special circumstances existed which warranted an award of costs. It found that the applicant had not unreasonably incurred costs, and there was no failure to comply with the duty under section 36 of the Act. The court concluded that the list of factors in section 60(3) was not exhaustive and considered the applicant's conduct and the overall fairness of the situation. The CAT awarded costs in the amount of $7,000, finding it appropriate given the circumstances of the case. Additionally, the tribunal prohibited the disclosure of confidential material filed by the respondent to protect sensitive information.

The orders made by the CAT included an order that an oral hearing on the issue of costs was dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). The applicant was ordered to pay the respondent costs in the amount of $7,000 within 28 days of the order. Furthermore, the tribunal prohibited the disclosure of confidential material filed by the respondent on the basis that such material should not be released to the applicant or the public.

Orders

Orders of the court

(1) An oral hearing on the issue of costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) Pursuant to section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Applicant, Ms Telina Webb, is ordered to pay the Respondent, the Port Stephens Council, costs in the amount of $7,000.00 within 28 days of this order being made.

(3) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to either the Applicant or the public.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Webb v Port Stephens Council [2023] NSWCATAD 137

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Webb v Port Stephens Council
[2022] NSWCATAD 404 Para 2

…20 December 2022, this Tribunal dismissed Ms Webb’s application and affirmed the Council’s decisions ( Webb v Port Stephens Council [2022] NSWCATAD 404) (“ Webb 1 ”)). On 17 May 2023, the Appeal Panel dismissed an appeal from the Tribunal’s decision ( Webb v Port Stephens Council [2023] NSWCATAP 133) (“ Webb Appeal ”)…
McEwan v Port Stephens Council (No. 2)
[2022] NSWCATAD 308 Para 112

…n consideration of some and not all of the subparagraphs of section 60(3). (see, e.g., Bilic , McEwan v Port Stephens Council (No. 2) [2022] NSWCATAD 308 (“ McEwan ”); Wojciechowska v Commissioner of Police, NSW Police Force No 2) [2023] NSWCATAP 104 (“ Wojciechowska” ). Indeed, the Tribunal has expressly confirmed, i…
Bilic v Commissioner of Police
[2022] NSWCATAD 93 Para 85

…d costs. A cursory examination of the Tribunal’s decisions shows that this is not the case (citing, as an example, Bilic v Commissioner of Police [2022] NSWCATAD 93 (“ Bilic ”).…
Bechara trading as Bechara and Company v Bates
[2016] NSWCA 294 Para 136

…In Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294, Beazley P, Meagher and Payne JJA set out the principles in relation to fixed costs orders as follows (internal citations omitted):…
WorkCover Authority (NSW) v Law Society of New South Wales
[2006] NSWCA 84 Para 113

…re out of the ordinary, they do not have to be extraordinary or exceptional. (See Grasso at [11]; Bilic at [7], both citing Cripps v G & M Mawson [2006] NSWCA 84 at [60]).…
Oshlack v Richmond River Council
[1998] HCA 11 Para 115

…r costs is intended to compensate the successful party. It is not intended to be punitive in nature ( Grasso at [12]; Oshlak v Richmond River Council [1998] HCA 11; Hamod v State of New South Wales [2002] FCA 424).…
Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited
[2017] NSWCATAP 29 Para 79

…The Council referred to the case of 203 Castlereagh Street Pty Limited v Skybloo Limited [2017] NSWCATAP 29 (“ 203 Castlereagh ”) at [40] for the following principles relevant to the making of a gross sum or fixed sum costs order (internal citations omitted):…
[2022] NSWCATAP 280
[2022] NSWCATAP 280 Para 84

…ly available to “formally qualified legal representatives” (citing, as an example to the contrary, Commissioner of Police v Robinson (No 2) [2022] NSWCATAP 280).…
[2022] NSWCATAP 386
[2022] NSWCATAP 386 Para 111

…costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in its favour ( McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38] (“ McEwan AP ”)). Section 60(3) provides guidance on what may constitute special circumstances.…
[2022] NSWCATAP 91
[2022] NSWCATAP 91 Para 72

…oted that the matters set out in section 60(3) are not exhaustive. It cites the Appeal Panel’s decision in Grasso v Owners of Strata Plan No. 52399 [2022] NSWCATAP 91 (“ Grasso ”) at [12] for the following established principles concerning an award of costs in special circumstances (internal citations omitted):…
[2023] NSWCATAP 104
[2023] NSWCATAP 104 Para 112

…v Port Stephens Council (No. 2) [2022] NSWCATAD 308 (“ McEwan ”); Wojciechowska v Commissioner of Police, NSW Police Force No 2) [2023] NSWCATAP 104 (“ Wojciechowska” ). Indeed, the Tribunal has expressly confirmed, in a decision cited by Ms Webb, that section 60(3) of the CAT Act sets out what the Tribunal may have…
Webb v Port Stephens Council
[2023] NSWCATAP 133 Para 2

…Webb 1 ”)). On 17 May 2023, the Appeal Panel dismissed an appeal from the Tribunal’s decision ( Webb v Port Stephens Council [2023] NSWCATAP 133) (“ Webb Appeal ”).…
[2002] FCA 424
[2002] FCA 424 Para 115

…party. It is not intended to be punitive in nature ( Grasso at [12]; Oshlak v Richmond River Council [1998] HCA 11; Hamod v State of New South Wales [2002] FCA 424).…

Legislation cited in this decision · 4

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 3)
Civil and Administrative Tribunal Rules 2014 (NSW)
1 mention
Government Information (Public Access) Act 2009 (NSW)
1 mention (from Para 1)
Legal Profession Uniform Law Application Act 2014 (Vic)
1 mention

Medium Neutral Citation:	Webb v Port Stephens Council [2023] NSWCATAD 137
Hearing dates:	On the papers
Date of orders:	6 June 2023
Decision date:	06 June 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Levine, Senior Member
Decision:	(1) An oral hearing on the issue of costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) Pursuant to section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Applicant, Ms Telina Webb, is ordered to pay the Respondent, the Port Stephens Council, costs in the amount of $7,000.00 within 28 days of this order being made. (3) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to either the Applicant or the public.
Catchwords:	COSTS – Section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – whether special circumstances established – whether all factors listed in section 60(3) must be satisfied or whether it is a non-exhaustive list of considerations – whether there was unreasonable incurrence of costs – whether there was a failure to comply with the duty under section 36 of Civil and Administrative Tribunal Act 2013 (NSW) – whether an award of fixed costs is appropriate and if so in what amount
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	203 Castlereagh Street Pty Limited v Skybloo Limited [2017[ NSWCATAP 29 Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP75 Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294 Bilic v Commissioner of Police [2022] NSWCATAD 93 Commissioner of Police v Robinson (No. 2) [2022] NSWCATAP 280 Cripps v G&M Mawson [2006] NSWCA 84 Grasso v Owners of Strata Plan No 52399 NSWCATAP 91 Hamod v State of New South Wales [2002] FCA 424 McEwan v Port Stephens Council (No. 2) [2022] NSWCATAP 386 McEwan v Port Stephens Council (No. 2) [2022] NSWCATAD 308 Oshlak v Richmond River Council [1998] HCA 11 Webb v Port Stephens Council [2023] NSWCATAP 133 Webb v Port Stephens Council [2022] NSWCATAD 404 Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104
Texts Cited:	None
Category:	Costs
Parties:	Telina Webb (Applicant) Port Stephens Council (Respondent) Crown Solicitor (Interested Party)
Representation:	Solicitors: Applicant (Self-represented) Lindsay Taylor Lawyers (Respondent) Crown Solicitor (Interested Party)
File Number(s):	2022/00138219
Publication restriction:	Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the Respondent on a confidential basis is prohibited. That material is not to be released to either the Applicant or the public.