Prasad & anor v Fairfield City Council [2002] NSWADT 69 (2 May 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL RETAIL LEASES DIVISION

CITATION: Prasad & anor -v- Fairfield City Council [2002] NSWADT 69 revised - 06/05/2002

PARTIES: APPLICANTS

Daniel Prasad

Stephen Walker

RESPONDENT

Fairfield City Council

FILE NUMBERS: 005020

HEARING DATES: not applicable

DECISION DATE: 02/05/2002

BEFORE: Fox R - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Retail Leases Act 1994

CASES CITED: Prasad & anor-v- Fairfield City Council (RLD) [2002] NSWADTAP 2

APPLICATION: Costs

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANTS

A Macpherson, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

M Jenkins, solicitor

ORDERS: The Respondent is to pay Applicant's costs of hearings on 29 May 2000, 9 June 2000, and 7 July 2000 and all work reasonably necessary to prepare there for; then if the amount cannot be agreed, as assessed pursuant to the Legal Profession Act.

Reasons for Decision:

1 Pursuant to the direction of the Appeal Panel, (Prasad & anor -v- Fairfield City Council (RLD) [2002] NSWADTAP 2) and having now fully considered the reasons given by judicial member Davidson on 19 May, 29 May, 7 June and 9 June, and having fully reconsidered my reasons for decision of 21 February, I make the following observations.

2 Section 88 of the Administrative Decisions Act is quite clear- costs do not simply follow the event.

"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."

I now note that Section 109 of the Victorian Legislation gives a useful checklist of matters which may be relevant to establishing special circumstances.

3 The Applicants do not, in relation to the actual hearing conducted before me, meet the requirement of special circumstances, either by the standard of our legislation, or by the standard of the Victorian legislation. I say this because the Applicants did not prove the damages which they claimed, nor did they prove the conspiracy pleaded.

4 It is the conspiracy allegation which led me to make the comments of 19 April:-

"even had I been free from legislative restriction and been obliged to consider the matter on a "costs follow the result " basis, I am not at all satisfied that I would not have substantially reduced the costs awarded in favor of the ultimately successful Applicants".

I was satisfied that on any reasonable view of the evidence propounded by the Applicant, it never amounted to a provable case of conspiracy and the Applicants should not have brought that issue to trial. In this regard it should also be borne in mind that once such an allegation is raised against a public body such as a local Council (as opposed to a private individual) their lawyers have little choice but to raise the full armory of the law in response.

5 Further, in relation to the conspiracy allegation, it is appropriate to consider the first of the skirmishes in this matter- the "production" hearing of 19 May. Mr. Davidson observed that the Applicants' Counsel admitted that, in relation to shops other than 1 and 5, the Summons for Production was a fishing expedition to gain evidence of inappropriate differences in the Council's attitude towards the Applicants as opposed to the other shops. Once the production of those documents was not allowed, it should have been obvious that the conspiracy allegation was most unlikely to be made out, and it would have been a prudent course of action for the Applicants to have abandoned it at that stage.

6 The Council's refusal to make the documents for shops 1 and 5 available, was, of course, insupportable, and had that issue been the only issue before Mr. Davidson on that day, the Applicants would have been entitled to claim special circumstances. But that was not the case. The Applicants, very properly sought disclosure of a wider range of documents, and, just as properly, were refused that. I stress that I am satisfied that the Applicants' very wide application was properly made and I am just as satisfied that the Respondent's refusal, as regards shops 2 and 3, was just as proper. Thus, all things considered, at the end of that day's hearing, where the Applicants had only been successful on part of their claim, and the Respondent's defence was partly successful, I am not satisfied that the Applicants would be able to establish that there were special circumstances.

7 The matter had been set for hearing of the substantial issue on 29 May, but the Applicants by letter of 25 May sought consent from the Respondent to "re-schedule" because there had been insufficient time after 19 May to prepare the matter for trial. The Respondent refused by letter of 26 May, and that aspect was then argued on 29 May. Mr. Davidson found that neither party was ready to go to trial a mere 10 days after the "production" hearing. The Respondents should have granted the Applicants' request for consent to a vacation of the date, albeit that the request was very late in the day, because it should have been plainly obvious that neither party was ready for trial. The Respondent should not have put the Applicants to the trouble and expense of arguing that matter and so the costs wasted in that day's hearing do amount to special circumstances in favor of the Applicants.

8 Next followed the hearing of 9 June which was an application by the Respondent to be released from an undertaking which it had given in relation to the proposal for the lease of Shop 5. I note Mr. Davidson's observation at the end of paragraph 6 of his reasons, given ex tempore,

"that simply means, if it is released, that a lease of the shop next door can be executed, and these proceedings in my view are futile and the Applicants have lost the fruits of any success in the litigation."

Clearly, the application should not have been brought, and that means that the Applicants, in relation to this day, do cross the special circumstances threshold and are entitled to their costs of that day.

9 The next event was the hearing of 7 July, which was to be the full hearing of the matter, but nothing of substance was heard that day, the Respondent having, instead, objected to the jurisdiction of the Tribunal. I note that Mr. Davidson observes

"the Applicants have pointed out that there is a letter from the Solicitors for the Respondent which gives the clear indication that the matter is to proceed without any objection to jurisdiction"

and in the immediately proceeding paragraph he observes that the Applicants asserted that the Respondents had

"only taken an objection to jurisdiction upon the day of the hearing itself."

That appears not to be quite accurate because the Applicants' Statement of Issues filed three days previously acknowledges that one of the issues raised by the Defense was :- "that the Tribunal does not have jurisdiction". Be that as it may, it does appear to be clear that this particular issue was raised very late.

10 I am satisfied that Mr. Davidson's reasons for deciding that there was jurisdiction, clearly establish that the Respondent `s application was only marginally arguable, and that, in any event, two of the three issues which were raised could only be properly considered after all the evidence was "in" and so should not have been raised in the manner which the Respondent brought them forth, but should have been raised during the substantive hearing. The device of raising these matters as a preliminary point meant that yet another day, which should have been devoted to the actual issue to be tried, was wasted in preliminaries at the behest of the Respondent. In view of all of that, the Applicant has demonstrated special circumstances for that day.

11 My order is that as regards the hearings of 29 May, 9 June and 7 July and all work reasonably necessary to prepare there for, the Applicants are entitled to costs, and if the amount cannot be agreed, then they are to be assessed pursuant to the Legal Profession Act.

Decision revised 6 May 2002: Citation missing from paragraph 1