Background
The Court of Appeal had previously allowed the Secretary’s appeal from disciplinary action imposed on Andrew Thaler by the New South Wales Civil and Administrative Tribunal (NCAT). Rather than determine the disciplinary action itself, the Court remitted the matter to NCAT for redetermination. It also remitted the costs of the Court of Appeal proceeding to NCAT, to be determined after the outcome of the remitted appeal was known.
The Secretary then sought to vary the Court’s orders. First, she sought clarification that NCAT was to redetermine only what disciplinary action, if any, should be imposed, rather than revisit whether misconduct had occurred. Second, she sought an immediate costs order in her favour or, alternatively, a direction that NCAT could decide the Court of Appeal costs without first finding “special circumstances” under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).
The Court’s Holding
The Court declined to vary the remittal concerning disciplinary action. The parties had already agreed before NCAT that the issue for redetermination was the disciplinary action to be imposed, and that accorded with the Court’s original intention. A further order would serve no purpose.
The Court also declined to determine the appeal costs immediately. Although the Secretary had succeeded in setting aside NCAT’s original decision, the practical outcome of the litigation depended on NCAT’s forthcoming redetermination. However, the Court directed NCAT under cl 29(8)(d) of Sch 5 to determine the remitted Court of Appeal costs without requiring proof of “special circumstances.” The Court otherwise dismissed the motion and ordered each party to bear its own costs of that motion.
Key Takeaways
- A remittal may include directions governing how NCAT is to decide costs of a court appeal.
- NCAT may determine the remitted appeal costs without applying the “special circumstances” threshold in s 60.
- Where the practical result of an appeal remains dependent on a remitted redetermination, costs may properly await that outcome.
Why It Matters
The decision confirms the breadth of the Court of Appeal’s power when remitting a non-lawyer NCAT appeal. The Court may direct NCAT to determine remitted appellate costs on the basis that would have applied had the Court decided costs itself.
It also illustrates that success on an intermediate appellate issue does not necessarily justify an immediate costs order where the ultimate practical result remains unresolved.