Ajami v Commissioner of Police, NSW Police Force

Consideration of the costs application

1. Section 60 of the CAT Act provides that: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: "costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
2. In awarding costs under s 60 the Tribunal exercises a discretion, which discretion is to be exercised judicially. In finding special circumstances the Tribunal may have regard to the factors set out in s 60(3) although its conclusions with respect to those matters, do not necessarily mean that the Tribunal must be satisfied that there are special circumstances. With respect to special circumstances the Appeal Panel in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 explained: 145. The meaning of the term "special circumstances" has been the subject of several decisions in the Appeal Panel (see for example Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Sahade v Owners SP 62022 [2015] NSWCATAP 225; Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 and Gaynor v Burns [2015] NSWCATAP 150). Those cases show that the expression "special circumstances" means circumstances which are out of the ordinary but not necessarily extraordinary or exceptional. Of course, each case will depend on its own facts and the Tribunal may "in a structured exercise of discretion, have regard to the criteria in s 60(a)-(g)": Gaynor v Burns [2015] NSWCATAP 150 at [18]. 146. When one has regard to the criteria in s 60(3)(a)-(g) it is clear, in our opinion, that the conduct of a party, including their subjective motives and conduct of the litigation, can be a relevant factor for the Tribunal to take into account. That subjective motive or conduct could be relevant to most of the criteria set out in s 60(3): s 60(3)(a) - whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party; s60(3)(b) - whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; s 60(3)(c) - the relative strengths or weaknesses of the claims of the parties and whether a claim of a party has no tenable basis in fact or law; s 60(3)(e) whether the proceedings were frivolous or vexatious; and s 60(3)(f) - whether a party has failed or refused to comply with the statutory obligation of co-operation imposed by s 36(3) of the Act. Additionally, a party's subjective motives, conduct or behaviour in relation to proceedings before the Tribunal could be relevant to the undefined "other matters" criteria pursuant to s 60(3)(g).
3. In the present case the Commissioner claims, with respect to the considerations in s 60, that Mr Ajami: 1. has been responsible for prolonging unreasonably the time taken to complete the proceedings (s 60(3)(b)); 2. did not comply with the duty imposed by section 36(3) by not complying with the Tribunal's directions and orders (s 60(3)(f)); 3. made an application that had no tenable basis in fact (s 60(3)(c)); 4. made an application which was frivolous or vexatious or otherwise misconceived or lacking in substance, based on his explanations (s 60(3)(e)); and, 5. displayed a lack of honesty and candour, which the Commissioner submits is a relevant matter under s 60(3)(g).
4. The Commissioner seeks fixed cost under s 60(4)(a) in the sum of: 1. $15,000 being the Commissioner's costs of the proceedings related to the preparation of evidence, for wasted preparation for hearing, dealing with non-compliance and of this costs application; or 2. $5,000 being the Commissioner's costs for wasted preparation for hearing, dealing with non-compliance and of this costs application; or 3. $3,000 being the Commissioner's costs for dealing with non-compliance and of this costs application.
5. I am satisfied that there are special circumstances in this case warranting the making of an order that Mr Ajami pay the Commissioners costs thrown away in wasted preparation for hearing, in dealing with non-compliance with orders, and of this costs application. In reaching that conclusion I am satisfied that: 1. Mr Ajami prolonged unreasonably the time taken to complete the proceedings by not complying with the Tribunal's directions and orders, with respect to the filing of materials on which he wished to rely. The Tribunal extended the time for the filing of Mr Ajami's on three occasions. According to the first orders made on 15 August 2017 they were due on 12 September 2017, which time was progressively extended to 21 November 2017 and then 5 December 2017. The delays had reached the point that, when making the last extension on 21 November 2017, the Tribunal had to vacate a hearing scheduled for 12 December 2017, and made an order reserving the Commissioner's then application for costs. The Tribunal then fixed the hearing for 27 February 2018, more than two months after the original hearing date was scheduled. Ultimately, Mr Ajami did not file any materials, just submission. There can be no doubt that the proceedings were unreasonable prolonged by Mr Ajami not filing materials as ordered; 2. Mr Ajami failed to comply with the directions for the filing of material on which he intended to rely as outlined above; 3. Mr Ajami withdrew his application the afternoon before the hearing, which meant that the Commissioner's representative had no reasonable alternative than to fully prepare the matter for hearing. This is a factor under s 60(3)(g); see also Rae v Commissioner of Police, NSW Police Force (No 3) [2010 NSWADT 254; and, 4. that withdrawal followed the Commissioner filing further evidence in reply and the Commissioner's submissions.
6. I am not satisfied, without the benefit of hearing the evidence in this matter, that Mr Ajami: 1. made an application for which there was no tenable basis in fact; 2. which was frivolous or vexatious or otherwise misconceived or lacking in substance, based on his explanations; and 3. displayed a lack of honesty and candour.
7. The Commissioner relied substantially on the Commissioner's submissions to demonstrate that Mr Ajami knew his claim was bound to fail as a matter of fact, was untenable, and that he was not honest and candid. It should be remembered that those documents were served on 15 January 2018. The Commissioner's submissions, represent one side of the case, with which Mr Ajami took issue. They constitute an outline of the relevant facts and law as pressed by the Commissioner, which may or may not have been accepted after hearing.
8. The Commissioner relied on the costs decisions in Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 120, Ahmed v Commissioner of Police, NSW Police Force [2017] NSWCATOD 113 and Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Ltd v Commissioner of Police [2018] NSWCATAD 30. Each of those cases involved: 1. similar issues concerning licence holders being involved in schemes which circumvent the SIA's training qualifications requirements for licence holders, by enabling persons to be trained to meet the (lesser) Queensland requirements, so as to obtain a Queensland security licence, and to then obtain recognition of the licence in NSW under mutual recognition arrangements. The Commissioner alleged that Mr Ajami was involved in similar arrangements; 2. a full hearing of on the merits in which the licence holders gave evidence and were cross-examined by the Commissioner's representative; and, 3. written reasons for decisions being provided by the Tribunal in which it was found that: 1. the applicant had not been honest in giving evidence to the Tribunal; and 2. the applicant's case was untenable.
9. While the facts alleged here are similar, the course of Mr Ajami's application through the Tribunal is markedly different to each of those three cases. There has been no hearing on the merits. The Tribunal has not reached any conclusions of facts. The Tribunal has not heard evidence from Mr Ajami, or reached any conclusions as to his honesty and candour.
10. In all the circumstances, I think the appropriate order is to find special circumstances which justify the making of an order for the payment of fixed cost relating to the Commissioner's costs thrown away in wasted preparation for hearing, in dealing with non-compliance with orders by Mr Ajami, and of the costs of this costs application. I do not think that the special circumstances merit, with respect to the full costs of the proceedings, an abandonment of the general principle, set out in s 60(1), that both parties should bear their own costs in Tribunal proceedings: especially on an indemnity costs basis as urged by the Commissioner. While the Commissioner asserts that Mr Ajami had no chance of success, in this case that is not necessarily apparent without a hearing on the merits. Further, Mr Ajami's withdrawal of his application followed the filing of the Commissioner's submissions on 15 January 2018, which put the Commissioner's case at its highest.
11. In his affidavit Mr Mattson has set out the costs incurred by the Commissioner in defending Mr Ajami's application. To date they total $16,160.20 (excluding GST) with $105.90 in disbursements. This is comprised of: a. $10,091.20 in legal fees were incurred by the Respondent in preparing the evidence in defence of the Applicant's Application (see the invoices dated 21 December 2017 and 31 January2018); b. $2,154.88 in legal fees were incurred by the Respondent after 2 February 2018 in preparation for the hearing (see the invoice dated 28 February 2018); and c. $1,528.90 in legal fees were incurred by the Respondent in dealing with the Applicant's non-compliances with directions and orders of the Tribunal (see the invoices dated 21 December 2017, 31 January 2018 and 28 February 2018).
12. Mr Mattson says the cost of the costs application will be approximately $1,500.00.
13. The Commissioner claims $5,000.00 being the full costs thrown away in wasted preparation for hearing, in dealing with non-compliance with orders by Mr Ajami, and of this costs application. As already indicated, I do not think allowing costs on an indemnity basis appropriate in this situation and propose to reduce the costs claimed to reflect a party/party figure.

Order 1. The applicant shall pay the respondent's costs of this application fixed at $4,000.00 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2023