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Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > Practice and Procedures > Practice Notes > Practice Note Number 22
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ADMINISTRATIVE DECISIONS TRIBUNAL COSTS: GUIDELINE
The purpose of this Guideline is to provide information about the Tribunal’s practice in relation to costs. 2. Relevant Legislation The main provision relating to costs in the Tribunal is s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act). 3. Meaning of ‘Costs’ ‘Costs’ refers to the professional fees charged to a party by that party’s legal representative or by a professional representation who is not a lawyer. ‘Costs’ includes reasonable expenses (‘disbursements’) actually paid in connection with the proceedings.
The general rule is that each party pays his or her own costs. The general rule may be overridden by other legislation. For example:
5. Exception to General Rule Despite the general rule, the Tribunal may order one party to pay another party’s costs but ‘only if it is satisfied that it is fair to do so having regard to’ the following:
(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, (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. Between 1998 and 2008 the exception to the general rule allowed the Tribunal to make a costs order if ‘special circumstances’ were established. No guidance was given in the legislation as to what those ‘special circumstances’ might be. Many of the matters now listed in sub-section (1A) are similar to the ‘special circumstances’ identified by the Tribunal as justifying an award of costs under the old provision. 6. Self Represented Party The Tribunal has ruled that a self represented party cannot apply for costs for loss of income or general inconvenience that the party has incurred in bringing or defending a case. However, a self represented party may apply for an order that covers their reasonable out of pocket expenses (‘disbursements’) such as photocopying and travel expenses. 7. Non Lawyer Professional Agents The ADT Act allows a person to be represented by an agent or an Australian legal practitioner. The Tribunal has ruled that an order for costs extends to the costs charged by a professional agent who is not a legal practitioner.
The Tribunal has ruled that it has the power to make an order that costs be paid by the agent, rather than a party, whether the agent is a legal practitioner or not. Such an order would only be made where it is justified because of the conduct of the agent. 9. Application for costs Parties should tell the Tribunal and the other party that they will be applying for a costs order as soon as they become aware of circumstances which justify an order for costs. If the matter goes to hearing and the application for costs is pursued, the person applying for costs should file and serve a precise statement of the amount of costs actually sought and its components. Parties are encouraged to advise the Tribunal at the conclusion of the hearing if they wish to make an application for costs. Any such application should be made at the time, even if that application is based on an assumption as to the outcome of the proceedings. The Tribunal will determine the application in the reasons for decision. Parties are not encouraged to apply for costs after receiving the reasons for decision. Such an application leads to unnecessary delays in the finalisation of the matter. If such an application is made, it should set out the reasons that an application for costs was not made at the conclusion of the hearing. The Tribunal may list the application for an oral hearing or determine the application ‘on the papers’ that is, without a hearing (see s 76 of the ADT Act). 10. Appeal Panel proceedings The costs rules that apply at the Divisional level also apply to proceedings before the Appeal Panel. Parties should note that where an appeal is lodged and the Appeal Panel decides the appeal has no tenable basis in fact or law this may justify an award of costs under s 88(1A)(c). If an appeal is lodged while the Divisional Tribunal still has before it an application for costs, normally the Divisional Tribunal will decide the costs application so that finality is achieved at that level.
This issue has usually arisen in the Retail Leases Division of the Tribunal. The Tribunal ruled under the previous version of s 88 that this may justify an order for costs in favour of the party who made the offer.
Legal practitioners should be aware that the Civil Liability Act 2002 and the consequential amendments to the Legal Profession Act 2004 may affect liability for and the amount of costs recoverable in damages claims. Issued 1 October 2009 |
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