Brooks Maher v Cheung [2001] NSWADT 18 (12 February 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Brooks Maher -v- Cheung [2001] NSWADT 18

PARTIES: APPLICANT

Emma Dorothy Brooks Maher

RESPONDENT

Kwai Lin (Karin) Cheung

FILE NUMBERS: 993289

HEARING DATES: 01/02/2001

SUBMISSIONS CLOSED: 01/02/2001

DECISION DATE: 12/02/2001

BEFORE: Hennessy N (Deputy President)Britton A - Judicial MemberMapperson K - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Local Government Act 1993

Suiters' Fund Act 1951

CASES CITED: Bourne v Murphy & Ors (1996) 92 LGERA 329

Hoblos v Marchese [1999] NSWADT 127

Bartlett and Anderson [2000] NSWADT 86

Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSW ADT 4

Holpitt Pty Ltd v Varimu Pty Ltd & Others [1991] FCA 269; (1991) 103 ALR 684

Pascale -v- Lucas [2000] NSWADTAP 29

APPLICATION: Costs

MATTER FOR DECISION: Costs application

APPLICANT REPRESENTATIVE: APPLICANT

S Moran, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

J Tancred, solicitor

ORDERS: 1. No order as to costs.

Reasons for Decision:

Introduction

1 This is an application for costs by the respondent in the substantive proceedings, Ms Cheung. The application is brought under s 329 of the Local Government Act 1993 (LG Act) and s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

2 On 24 December 1999 the original applicant, Ms Brooks Maher, lodged an application with the Tribunal seeking an order that Ms Cheung be dismissed from office as a civic officer of the Ashfield Municipal Council. The ground for that application was that there was an irregularity in the manner of her election. After hearings and determinations on some interlocutory matters, the respondent applied for Ms Brooks Maher's application to be dismissed on the ground that it was out of time. The Tribunal ruled that the application was out of time but that it had a discretion to accept it, and it did so. Ms Cheung appealed to the Supreme Court. The Supreme Court found in favour of Ms Cheung and remitted the matter to the Tribunal. The Tribunal subsequently dismissed Ms Brooks Maher's application. The only outstanding matter is Ms Cheung's application for costs.

Legislative provisions

3 Section 88 of the ADT Act provides that:

(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 is satisfied that there are special circumstances warranting an award of costs.

(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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 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.

4 Section 329(6) of the LG Act states that:

(6) 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.

Ms Cheung's submissions

5 Ms Cheung's legal representative, Ms Tancred, submitted firstly that s 329(6) of the LG Act does not require the Tribunal to apply the "special circumstances" test in s 88 of the ADT Act test because that test is not referred to in s 329(6).

6 In the alternative, Ms Tancred submitted that there are special circumstances justifying an award of costs. In summary, these circumstances are that:

1. The proceedings were between two private individuals and not between a government agency and an individual and are therefore not within the scope envisaged by the legislation.

2. The proceedings were pursued with vigour, including the issuing of 19 summonses to produce documents.

3. Publication in newspapers concerning the proceedings has not always been accurate, unbiased or authorised and has caused Ms Cheung distress.

4. The proceedings have the potential to have a broad effect because persons elected to civic office are distinctly disadvantaged by remaining open to challenge.

5. The State Electoral Office investigated but took no action in relation to a complaint by Ms Brookes Maher about enrolment concerning Ms Cheung prior to the lodgement of the application in the Tribunal.

6. The Mayor of Ashfield Council has indirectly involved himself in the proceedings causing Ms Cheung distress and embarrassment.

7. Ms Brooks Maher was invited to discontinue the proceedings on 28 March 2000 and based on the decision of the Court of Appeal in Bourne v Murphy & Ors (1996) 92 LGERA 329, an order for costs should be made following the dismissal of the application.

8. In the alternative, the Tribunal should make a recommendation under s 6C(1)(c) of the Suitors' Fund Act 1951 for the payment of Ms Cheung's costs.

Ms Brooks Maher's submissions

7 Mr Moran, on behalf of Ms Brooks Maher, submitted that the Tribunal's decision in Hoblos v Marchese [1999] NSWADT 127 supports the view that costs can only be awarded in proceedings under s 329 of the LG if special circumstances exist. The burden of proving that special circumstances do exist is on the person applying for costs.

8 Ms Brooks Maher's original application was made in good faith and had merit. She was a responsible litigant and the litigation was conducted efficiently. The election of individuals to public office is a matter of public interest and these matters should be manifestly transparent and open to public scrutiny.

9 The awarding of costs against Ms Brooks Maher would discourage individuals from using the administrative law procedures set up under the ADT Act. the Act is designed to encourage participation of individuals in making administrative procedures accountable and accessible.

Reasons and decision

10 Meaning of s 329(6). This provision gives the Tribunal power to award costs "under section 88 of the ADT Act" in applications made to the Tribunal under the LG Act. We agree with the Tribunal's conclusion in Hoblos v Marchese [1999] NSW ADT 127 and Bartlett and Anderson [2000] NSWADT 86, that this means that the Tribunal can only make an award of costs if it is satisfied that there are special circumstances warranting an award of costs.

11 What constitutes "special circumstances"? In Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSW ADT 4 (11 January 2000), the Tribunal made a comment in relation to an application for costs which was quoted by the parties to these proceedings. In Mangoplah, the applicant was partially successful in an application for access to documents under the Freedom of Information Act 1989 and applied for an award of costs against the agency. The Tribunal commented at para 5, that:

The legislature has given a clear indication that the Tribunal is not to apply the usual approach to an unfettered discretion to award costs in judicial proceedings, ie that the successful party can expect to enjoy the benefit of a costs order. Something more than success is needed to warrant an order, whether the successful party is a citizen challenging an administrative decision or an administrative agency resisting such a challenge.

12 "Special" is given 17 meanings in the Macquarie Dictionary, Third edition, The Macquarie Library. One meaning is "distinguished or different from what is ordinary: a special occasion." Another meaning is "extraordinary; exceptional; exceptional in amount or degree especial: special importance." In interpreting the term "special circumstances" in a different context, the Federal Court in Holpitt Pty Ltd v Varimu Pty Ltd & Others [1991] FCA 269; (1991) 103 ALR 684 preferred the former definition:

In my opinion, the court's duty in an application of this kind is to consider whether the applicant has shown some circumstances which takes the matter out of the ordinary course. . .

13 The application in that case related to whether the court should exercise its discretion to have documents produced in one set of proceedings, available for use in other proceedings.

14 We are satisfied that the plain meaning of "special circumstances" is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But "special circumstances" alone are not sufficient. Under s 88(1), the special circumstances must "warrant an award of costs." The circumstances which would or would not "warrant an award of costs" cannot be exhaustively listed. However where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted.

15 We are not satisfied that any of the circumstances listed by Ms Tancred warrant an award of costs. Each submission is dealt with below.

16 Proceedings between two individuals and impact on Ms Cheung. The fact that these proceedings were between two private individuals (one the holder of civic office) and not between a government agency and an individual is not out of the ordinary. It is true that s 88 of the ADT Act applies generally to reviewable decisions (which are between an individual and a government agency or Minister) but only applies to applications for original decisions if the relevant enactment provides for the awarding of costs. (See section 88(3) of the ADT Act.) Like many applications for original decisions, the present application is between two individuals. That fact alone does not amount to a special circumstance warranting an award of costs. Neither does the fact that it is an application for an original decision. The same test applies to original and reviewable decisions covered by s 88.

17 There is no doubt that proceedings of this kind can have a profound effect, both emotionally and financially, on an individual office holder. Again, that fact, in itself, is not out of the ordinary, nor does it warrant an award of costs.

18 Proceedings pursued with vigour. The fact that the applicant issued numerous summons and pursued her application with vigour is something that can contribute to the costs of the other party, if those summons are challenged. Summons issued by Ms Brooks Maher were challenged by Ms Cheung and the Tribunal made several rulings. While the issuing of a considerable number of summons could be regarded as a special circumstance, the Tribunal is not satisfied that it warrants an award of costs. In particular, there is no evidence that Ms Brooks Maher acted in bad faith in taking those procedural steps

19 Media publicity and Mayoral involvement. It is not unusual for proceedings before the Tribunal to receive media coverage or for a party to be unhappy with that coverage. That circumstance cannot be regarded as special. Furthermore, unless the circumstances under review are within the knowledge or control of the party against whom costs are claimed, it would be unlikely that an award of costs would ever be warranted. This reasoning also applies to the alleged conduct of the Mayor of Ashfield. There was no relevant evidence proffered linking Ms Brooks Maher with the Mayor's conduct. If Ms Cheung has a grievance which relates to the media or the Mayor those grievances must be pursued in another forum.

20 Investigation by another agency. Even if it is accepted that the State Electoral Office investigated, but took no action in relation to a complaint by Ms Brookes Maher about the enrolment of Ms Cheung, Ms Brooks Maher was still entitled to lodge an application with the Tribunal. A prior unsuccessful complaint to an unrelated agency on the same subject matter, does not justify an award of costs in this matter.

21 The Supreme Court decision of Bourne v Murphy & Ors (1996) 92 LGERA 329 is not relevant to the Tribunal's decision in this case. Although Bourne v Murphy also dealt with the question of costs in relation to an application under s 329 of the LG Act, that case was decided in December 1996, well before s 329(6) commenced in June 1998.

22 The Suitors' Fund Act 1951 regulates the payment of moneys from the Suitors' Fund, which is part of the Attorney General's Department account. The fund can be used to pay the costs of certain appeals to various courts and commissions (s 6), or the costs of proceedings which have been discontinued for certain reasons, such as the death or protracted illness of the judge (s 6A). Section 6C of the Suitors' Fund Act allows payments if the party in question incurs or is liable to pay costs, and the Director-General is of the opinion that a payment from the fund would be within the spirit and intent of the Act. Section 6C states that:

(1) If:

(a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings;

(b) the party is not otherwise entitled to a payment from the Fund in respect of the costs; and

(c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections, the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case.

(2) A payment under this section shall not exceed $10,000.

23 It was under this section that a party was awarded costs in Pascale -v- Lucas [2000] NSWADTAP 29. In that case costs were wasted because the Tribunal had inadvertently sat with one member instead of three. The Appeal Panel recommended that there be a payment out of the fund pursuant to section 6C.

24 The circumstances of the present case are not within the spirit and intent of the Suitors' Fund Act and we decline to make any recommendation as requested.