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Nswadt 2013 308
Nswadt 2013 308
Nswadt 2013 308
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Decision:
(1) The respondent's costs application is granted.
Category: Costs
Representation
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2 The respondent applied for an order for its full costs of the application and
the response, including indemnity costs in accordance with the general
rule at law that costs follow the event. I note at this point that the costs-
follow-the-event rule does not apply in this Tribunal (see further below).
4 This led to a reply from the review applicant protesting that he had never
received the respondent's submissions filed 12 September 2013. I gave
him time to file. He filed submissions on 11 December 2013 responding to
those submissions. The review applicant submitted that each party should
bear their own costs. The submissions referred to the history of the dispute
between the parties over the goods left on the respondent's land, and
contended that the review applicant's interests had been dealt with in an
improper way in various respects by the respondent and the respondent's
solicitor.
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6 The ordinary rule in the Tribunal is that each party bears its own costs.
Administrative review proceedings concern the relationship between
individuals and government, and a public purpose is served by the
accountability that administrative review proceedings bring to the
functioning of government. It is most unusual for the Tribunal to depart
from the usual rule in administrative review proceedings.
88 Costs
(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:
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(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
(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,
(a) determine by whom and to what extent costs are to be paid, and
Respondent's Submissions
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10 The respondent has also submitted that the applicant attempted to deceive
(see item (v)) the respondent and the Tribunal by submitting an affidavit of
Paul Kilpatrick (his son and then representative before the Tribunal) sworn
19 July 2013 purporting to be witnessed by a person described as a
barrister, 'H K Tobin'. The submissions have attached a letter from the
NSW Bar Association stating there is no barrister known to it with that
name, now or in the past.
11 The review applicant submits that he did make all reasonable efforts to
resolve the dispute. The submissions refer to notices said to have been
given three times by the respondent in April 2013 (on the 19th, 24th and
30th) that it would be taking action in the Supreme Court in relation to the
goods left on its land under the Uncollected Goods Act 1995 and claims
that it failed to pursue the demand, forcing the review applicant to proceed
by filing a review application on 31 May 2013 in the ADT to get the dispute
resolved, invoking the Impounding Act jurisdiction of the ADT. This was the
same day that the review applicant obtained an injunction from Kunc J of
the Supreme Court after learning that the equipment was due to be
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12 The review applicant rejects the respondent's assertion that the witness to
the affidavit sworn 19 July 2013 was not qualified.
13 The review applicant also makes a technical submission, arguing that the
Tribunal was not involved in its review jurisdiction when making its
decision upholding its objection to jurisdiction. The argument is that as the
review application was found incompetent, the review jurisdiction was
never engaged, and therefore the Tribunal must have been in its 'original'
jurisdiction, and s 88(3) needs to be satisfied. There is no relevant
provision. This argument is misconceived. The Tribunal was seized of an
application purporting to engage its review jurisdiction. The ADT Act, s 38
requires the Tribunal to satisfy itself whether an application engages the
review jurisdiction. Proceedings in the review jurisdiction extend to
questions anterior to the exercise of the function, such as whether the
application falls within the jurisdiction, standing, compliance with time limits
and the like. A respondent forced to appear in the Tribunal by the
lodgment of a review application is not barred from applying for costs by
being successful in bringing the application to a quick end on a preliminary
point going to jurisdiction.
Assessment
14 I will not address the issue as to the witnessing of the affidavit. This is a
dispute of fact that I do not need to address to decide this application. I
make no finding on the matter. The witness statement would, in the
ordinary practice of this Tribunal, have been accepted even if the witness
did not belong to the classes required for the witnessing of affidavits.
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Order
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(2) The applicant is to pay the respondent's costs of the proceedings, fixed
at $5,000.
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