|Date of judgement||10 September 2019|
|Judge(s)||S Higgins, Senior Member|
|Court or Tribunal|
NSW Civil and Administrative Tribunal
Costs – special circumstances – applicant failed to attend the mediation or hearing
The Applicant had originally applied for administrative review of a land tax assessment issued to it by the Chief Commissioner on the basis that it was assessed to liability as the dominant use of the subject land was not for primary production. The Application for Review was filed on 7 January 2019.
On 5 February 2019 the Crown Solicitor’s Office (which represented the Chief Commissioner in the appeal) sent a letter to the Applicant drawing its attention to the terms of section 10AA of the Land Tax Management Act 1956 and the requirements for the land to be exempt from land tax on the basis of the dominant use being for primary production. It was also pointed out to the Applicant that it has the onus of proving the dominant use of the land was for primary production in the 2016 land tax year.
At the directions hearing on 19 February 2019, the Applicant’s director appeared in person on behalf of the Applicant. The Tribunal made orders by consent including an order for mediation on 3 April 2019 and in the event the matter was not settled at mediation, an order listing the matter for hearing on 5 June 2019.
On 15 March 2019 the Applicant filed and served a short statutory declaration signed by the Applicant’s director, with a second unsigned statutory declaration of another person attached.
The Crown Solicitor’s Office wrote to the Applicant on two further occasions advising that the Respondent did not believe the Applicant’s application had reasonable prospects of being resolved at mediation and suggesting the matter be heard and determined at the scheduled hearing on 5 June 2019 rather than proceeding with mediation. Having not received any response from the Applicant, the Respondent’s representatives attended the mediation on 3 April 2019 but there was no appearance by the Applicant.
On 10 May 2019, the Respondent filed and served his written submissions in accordance with orders made by the Tribunal on 19 February 2019.
On 5 June 2019 the matter was listed before Senior Member Higgins for hearing. There was no appearance by the Applicant. Senior Member Higgins dismissed the Applicant’s application for failure to appear under section 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (“the CAT Act”).
Following the dismissal of the proceedings the Respondent sought an order for costs and filed and served written submissions and an affidavit in support in accordance with orders made on that day. The Applicant failed to file and serve any evidence and/or written submissions in relation to costs.
The Tribunal was satisfied that:
1. The Applicant had conducted the proceedings in a way that unnecessarily disadvantaged the Respondent through its failure to respond to correspondence and its failure to appear at the mediation or the hearing.
2. There was a failure by the Applicant to comply with the duty imposed on it as a party under section 36(3) of the NCAT Act and that the Applicant’s failure caused the Respondent to incur unnecessary costs.
3. The Applicant’s claim for a primary production exemption for the 2016 land tax year was weak.
4. The Applicant’s failures and weaknesses of its claim constituted special circumstances and these circumstances warrant a departure from the general rule that each party pay its own costs.
(1) A hearing on costs is dispensed with in accordance with s. 50(1)(c) of the Civil and Administrative Tribunal Act 2013.
(2) The Applicant to pay the Respondent’s costs as agreed or assessed in regard to: