Kelly v Smith (No2) [2018] NSWCATAD 141

Kelly v Smith (No2) [2018] NSWCATAD 141

Special circumstances warranting a costs order were established because the application was so weak as to be untenable and was vexatious in the sense that it was obviously untenable or manifestly groundless. There was no evidence to support the application and no evidence that any alleged irregularity would have affected the election outcome. The Tribunal did not find the proceedings to be an abuse of process, and declined to order indemnity costs, but ordered the unsuccessful applicant to pay the respondent's costs as agreed or assessed.

Jurisdiction
Australia
Judgment Date
02 July 2018
Procedural Posture
Costs / On the Papers Costs Determination After Dismissal of the Application
Outcome
The applicant was ordered to pay the respondent's costs as agreed or as assessed.
Legal Topics
['special Circumstances for Costs' 'frivolous or Vexatious Proceedings' 'untenable Application' 'abuse of Process' 'indemnity Costs']
['administrative Law' 'costs' 'local Government and Electoral Law'] ['special Circumstances for Costs' 'frivolous or Vexatious Proceedings' 'untenable Application' 'abuse of Process' 'indemnity Costs']

Case Brief

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Procedural Posture

Costs / On the Papers Costs Determination After Dismissal of the Application

Legal Issues

  1. 1 ['Whether special circumstances warranted an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the application was frivolous, untenable, vexatious or an abuse of process.' 'Whether costs should be awarded on an indemnity basis.']

Ratio Decidendi

Special circumstances warranting a costs order were established because the application was so weak as to be untenable and was vexatious in the sense that it was obviously untenable or manifestly groundless. There was no evidence to support the application and no evidence that any alleged irregularity would have affected the election outcome. The Tribunal did not find the proceedings to be an abuse of process, and declined to order indemnity costs, but ordered the unsuccessful applicant to pay the respondent's costs as agreed or assessed.

Court Disposition

The applicant was ordered to pay the respondent's costs as agreed or as assessed.

Orders

  • ["The applicant is to pay the respondent's costs, as agreed or as assessed."]