McGlinn v Sassine (No. 3) [2011] NSWADT 15 (24 January 2011)

Last Updated: 9 March 2011

Administrative Decisions Tribunal New South Wales

Case Title:	McGlinn v Sassine (No. 3)
Medium Neutral Citation:	[2011] NSWADT 15
Hearing Date(s):	On the papers
Decision Date:	24 January 2011
Jurisdiction:
Before:	Deputy President D Patten
Decision:	Application for Costs refused
Catchwords:	Costs - Delays - Failure to Comply with Directions, successful applicant - Fairness
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Cases Cited:
Texts Cited:
Category:	Consequential orders
Parties:	Jodie Ann McGlinn and Sumer Toni McGlinn T/A Westlands Produce (Applicants) George Sassine (Respondent)
Representation
- Counsel:	R Winfield (Applicants) M Seymour (Respondent)
- Solicitors:	Papantoniou Blake Lawyers (Applicants) Greenaway and Tohme Solicitors (Respondent)
File number(s):	075166
Publication Restriction:

1	The respondent seeks an order that the applicants pay part of his costs. In the principal decision published on 6 September 2010, there was "No order as to costs" but subsequently I gave the parties leave to make submissions on the subject.
2	The respondent founded his application on three bases, namely, costs incurred as a result of the applicants' long delays in bringing the matter to hearing, costs incurred in meeting the applicants' expert evidence and their claim for unconscionable conduct, the expert evidence being rejected and the claim for unconscionable conduct being unsuccessful and costs incurred in preparing for an aborted hearing.
3	Before coming to the respondent's submissions in more detail, it is appropriate to clarify the Tribunal's jurisdiction in respect of costs. Section 88 of the Administrative Decisions Tribunal Act 1997 (ADTA) provides as follows:

88Costs

(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.

4	These proceedings were taken under part 8 of the Retail Leases Act 1994 and accordingly s 77A of that statute provides the authority required by s 88(3) of the ADTA.
5	In relation to the claim that costs were unreasonably generated by the applicants' delay in bringing the matter on for hearing, reference was made to fifteen occasions on which at a directions hearing the respondent's costs were reserved suggesting (so it was submitted) that in some way the applicants were in default in complying with previous directions. However such default is not always apparent from the material before me which does not include transcripts of what was said at the directions hearings. It does at least appear however that the applicants failed to comply in a timely manner with orders requiring them to file and serve the affidavits they wished to rely on.
6	The applicants countered the respondent's submissions on this aspect of the claim by pointing out that considerable delays and a number of adjournments were occasioned by the respondent's unsuccessful challenge to the Tribunal's jurisdiction and by the difficulties faced by the applicants in preparing their case in the absence of records improperly destroyed by the respondent.
7	As to the aborted hearing, on 9 July 2009 the matter was set down for hearing on 28 and 29 September 2009. On 23 September the hearing date was vacated, apparently on the ex parte application of the applicants, their solicitor having ceased to act the previous day. There were further directions given on 1 October when both parties were represented by counsel. The case was adjourned to 15 October 2009 for further directions and for listing the case for hearing. There was an order "Respondents costs reserved" but it is unclear as to what costs this order referred. The record does not state that the reference was to costs thrown away by reason of the vacation of the hearing date as opposed for instance to the costs of appearing at the directions hearing.
8	The applicants served an expert report of an accountant, Mr Troy Peisley. By an attachment to a letter to the applicants' solicitors dated 23 September 2003, the respondent's solicitors objected to the whole of the report. The objections in my view were patently valid and in the end the report was not admitted into evidence. It does not however seem to me to follow that it would be fair to allow to the respondent the cost of commissioning his own report in order to counter a report which almost certainly would not be admitted into evidence.
9	The respondent also submitted that a substantial part of the hearing was taken up "in exploring factual issues connected to the applicants unconscionability claims". In my opinion for the most part the whole relationship between the parties was relevant to the case and the fact that ultimately I decided that the respondent's conduct was not unconscionable did not detract from the relevance of the factual inquiry to other aspects of the applicants' claim. I would not see this aspect of the respondent's claim as providing any basis for an order for costs in the respondent's favour.
10	The conduct of the applicants throughout this litigation was far from that to be expected from model litigants and as I have indicated on a number of occasions they seem to have been in default in complying with directions made by the Tribunal. On the other hand, as the applicants point out in their submissions, they were overall successful both in establishing that the Tribunal had jurisdiction and in the merits of their claim. To date no order for costs has been made in their favour. This circumstance persuades me that it would not be "fair" within s 88(1A) of the ADTA to make the costs order sought by the respondent. It might well be otherwise if the respondent had ultimately been successful or if there had been evidence that he made a reasonable offer of compromise. So far as I am aware no such offer was ever made.
11	In the result I refuse the respondent's application for costs and confirm the order made on 6 September that there be no order as to costs. In the circumstances I think there should also be no order as to costs in respect of this application which was not without merit.

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