Al-Aaraj v Commissioner of Police, NSW Police Force (No 2)

[i]t is the experience of the Appeal Panel that costs decisions ... on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions.

1. Both parties submitted, and we accept, that the relevant costs rule is found in s 60 of the NCAT Act. Section 60 relevantly provides:

60 Costs

(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.

1. The Appeal Panel of the Tribunal has considered on many occasions the applicable principles as to whether there are "special circumstances" to justify a costs order in favour of a party: see for instance The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [6]- [15] and Grasso v The Owners Strata Plan No 52399 [2022] NSWCATAP 91 at [12]. To paraphrase B & G Trading Pty Ltd:

(1) "special circumstances" mean out of the ordinary but not to the degree of being exceptional or extraordinary;

(2) a costs order is not made simply because one or more of the circumstances in s 60(3) is established. The special circumstances must be sufficient for the Tribunal to exercise its discretion in favour of making a costs order;

(3) the party seeking costs bears the onus of persuading the Tribunal that the special circumstances are sufficient to justify departing from the usual principle in s 60(1);

(4) the discretion should be exercised judicially, with consideration that the usual principle is that by reason of s 60(1) each party bears its own costs, and the Tribunal must be persuaded to depart from that principle;

(5) whether there are sufficient special circumstances to justify a costs order is a question of fact and each case must be assessed according to its circumstances.

1. We commence by noting that the appellant was entirely unsuccessful in prosecuting its eight grounds of appeal, and the Commissioner therefore was successful in defending the appeal.

1. The Commissioner first addressed the issue of costs in its substantive submissions filed for the appeal dated 31 March 2025. In those submissions, she directly invoked s 60 and, in particular, ss 60(3)(c), (e) and (f), of the NCAT Act.
2. In relation to ss 60(3)(c) and (f), the Commissioner relied on its Reply to Appeal and its submissions of 31 March 2025 which, in summary, asserted that the appellant had not identified any question of law in accordance with s 80 of the NCAT Act, consistent with the principles enunciated in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, nor had he addressed the relevant matters required when seeking leave to appeal (consistent with Collins v Urban [2014] NSWCATAP 17); nor had he sought leave to appeal except in an impermissible way.
3. In addition, the Commissioner submitted that Grounds 1, 2 and 3 of the appeal were appeals in respect of interlocutory decisions of the Tribunal involving matters of practice and procedure for which leave was required (Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54), which leave was not sought.
4. In relation to s 60(3)(f), the appellant submitted that:

(1) the appellant failed to comply with the orders made by the Appeal Panel in preparation of and conduct of the Appeal in that he did not file an audio recording of hearing or transcript extracts or any material from the hearing below;

(2) an attempt was made to agree on a tender bundle with the appellant's solicitor but there was no reply;

(3) as a whole, the appellant failed to grapple with and apply the legal principles concerning appeals concerned with questions of law and with appeal matters that require leave to appeal;

(4) s 36 of the NCAT Act imposes a duty to co-operate with the Tribunal to give effect to its guiding principle. Where a party has not complied with their duty, and particularly where they are legally represented, a strong message should be sent that it is appropriate to depart from the general approach of a "no cost jurisdiction".

1. In summary, the appellant submitted, "in essence", that the appeal was nothing more than a transparent attempt by the appellant to relitigate his case.

(1) the appellant has been on notice of the Commissioner's complaints concerning the adequacy of the grounds of appeal, and whether there had been compliance with procedural directions, case management orders or with authorities, through the entire appeal;

(2) the Commissioner first drew the appellant's attention to these issues at the appeal call over. The Commissioner then raised the matters in her detailed Reply to Appeal;

(3) on a fair reading of the appellant's written submissions, the appellant was on notice of the alleged defects as there was some attempt to acknowledge the complaints, but at its highest, this was only a bare attempt. It could not be accepted that there was any substantive attempt to engage with the matters raised by the Commissioner;

(4) the appellant did not properly engage with the principles concerning leave to appeal, let alone indicate how they applied to his appeal. Nor was there any attempt to engage with the authorities concerning the question of law or to respond to the Commissioner's complaint (and the Principal Member's observation at callover) that many of the grounds did not amount to a question of law;

(5) further, the appellant chose not to file any submissions in reply, as provided for by the case management orders, to respond to any matter raised by the Commissioner;

(6) during the hearing, no point raised by the Commissioner's submissions was responded to by the appellant.

(7) the appellant also did not comply with the orders to file the evidence he relied on from the first instance proceedings, although there were some small extracts of transcript attached to his submissions;

(8) as a model litigant, the Commissioner was required to actively engage with all aspects of the appeal, even in circumstances where the appellant's case was poorly framed and/or inconsistent the authorities.

1. The Commissioner then goes to address the grounds of appeal individually. Where relevant we refer to those submissions in our Consideration section.

1. In brief submissions filed 6 May 2025, the appellant submits, in summary:

(1) neither the Tribunal nor the Commissioner was disadvantaged by the way the appeal was conducted;

(2) the appellant did not unnecessarily prolong the appeal;

(3) although the Tribunal found there was not a question of law to suggest the appeal grounds had any tenable basis, the appeal ground of extension of time would have been supported if the other grounds were accepted;

(4) "the question of fact" was not seriously canvassed;

(5) the Commissioner herself submitted that some of the grounds of appeal could possibly raise questions of law if repleaded;

(6) the nature and complexity of the proceedings is an issue "is really" a matter for the Appeal Panel;

(7) the proceedings were not frivolous or vexatious, misconceived or lacking in substance;

(8) the appellant has fully complied with the provisions of 36(3) and suggestions to the contrary by the Commissioner are erroneous, all orders and directions by the Tribunal having been obeyed.

1. For those reasons, the appellant submits that the circumstances raised by the Commissioner are insufficient to engage "special circumstances" within the meaning of s 60(3), and that therefore there should be no order as to costs.

1. We can say at the outset that we accept the submissions of the Commissioner in their entirety, and reject those of the appellant.
2. In our view, there are special circumstances warranting an award of costs, and that in the exercise of our discretion costs should be awarded.
3. We find that special circumstances are established for the following reasons.
4. First, the Commissioner had a strong case for the dismissal of the appeal, and the appellant had a weak one to support the appeal: NCAT Act, s 60(3)(c).
5. We are of that view because of the following matters:

(1) there were eight grounds of appeal and we noted at the outset of the appeal that there was a real question as to whether any of the grounds of appeal raised a question of law as submitted by the appellant (Appeal Decision at [40]);

(2) the appellant's task was not assisted by his failure to submit that any ground of appeal that raised a question of law consistent with the statements of principle of the Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 and Cusumano (Appeal Decision at [40]);

(3) nor was the appellant's task assisted by his refusal to recognise that grounds 1, 2 and 3 related to interlocutory decisions, for which leave to appeal is required, regardless of whether or not a question of law was raised (Appeal Decision at [40]).

(1) we saw no error in the Tribunal not requiring the internal reviewer to be identified, let alone required for cross-examination, and no precedent or authority was cited for this proposition. The experience of the Appeal Panel, as we put to the appellant's solicitor, was that internal reviewers are never identified and never cross-examined at a later hearing about their reasons for decision;

(2) in any event, as put to the appellant's solicitor by both the Tribunal at first instance and the Appeal Panel, what would be the relevance of such an exercise when the Tribunal was hearing the appellant's application for a Category AB firearms licence afresh? An internal review founds the Tribunal's review jurisdiction; the Appeal Panel is not undertaking a judicial review of errors in the internal reviewer's decision, but is making the decision again.

1. After pointing out to the appellant's solicitor the principles relating to appeals from interlocutory decisions as set out in Champion Homes Pty Ltd v Guirgis, we found his response that the internal reviewer had made a decision which was "completely wrong" thus disadvantaging the appellant, and that the lack of cross-examination of the internal reviewer had "tainted" their decision, to be unpersuasive. There was no basis disclosed as to why leave should be granted in respect of Grounds 1 and 2.
2. We did not accept that there were reasons to do so, and we did not accept that there was any error of principle by the Tribunal resulting in substantial injustice warranting a grant of leave;
3. As to appeal Ground 3, the appellant had submitted that the Tribunal erred in refusing to allow Ms Michelle Mattar, a barrister who had provided a reference in support of the appellant, from giving evidence despite being present at the Tribunal hearing. For the reasons set out at [56] and [57] of the Appeal Decision, we found that that submission mischaracterised matters and to be without merit or substance.
4. And, while the appellant sought leave in the event that we did not accept that this ground raised a question of law, as the appellant's submissions did not engage in any way with the principles concerning leave to appeal, we did not grant leave in respect of Ground 3;
5. As to Grounds 4 and 6, for the reasons set out at [66] and [67] of the Appeal Decision, we saw no substance in this ground of appeal. In our view, no question of law was raised consistent with the statements in _P_rendergast and Cusumano or otherwise., and the appellant's submissions did not engage in any way with the principles concerning leave to appeal.
6. As to Ground 5, for the reasons set out at [71] and [72] of the Appeal Decision, we saw no substance in this ground of appeal. No question of law consistent with the statements in Prendergast and Cusumano or otherwise was identified and the appellant's submissions did not engage in any way with the principles concerning leave to appeal.
7. As to grounds 7 and 8, for the reasons set out at [71] and [72] of the Appeal Decision, we saw no substance in this ground of appeal. We repeated the same remarks we had made in relation to grounds 4, 5 and 6.
8. When these matters are considered cumulatively, while we would hesitate to conclude that the appeal was frivolous or vexatious, in our view the appeal was arguably misconceived, lacking in substance and untenable: NCAT Act, s 60(3)(e).
9. In addition, there is substance in the Commissioner's submission that the appellant had refused or failed to comply with the duty imposed by s 36(3) of the NCAT Act.
10. Section 36 relevantly provides that:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it -

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal -

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

1. We find the Commissioner's reliance on s 36 (and thus s 60(3)(f)) established given that:

(1) the appellant failed to comply with the orders made by the Appeal Panel in preparation of and conduct of the Appeal in that he did not file an audio recording of the hearing or, critically in our view, any material from the hearing below;

(2) the Commissioner's attempt to agree on a tender bundle with the appellant's solicitor for the assistance of the Appeal Panel being met with no response;

(3) the appellant failed adequately to grapple with and apply the legal principles involving appeals being concerned with questions of law and with appeals that require leave to appeal.

1. When considering all these matters cumulatively, we find that special circumstances are established.
2. As to whether costs should be awarded, any award of costs is discretionary. As the Appeal Panel stated in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [37]:

It must be remembered that where a court or a tribunal is conferred with the discretion to award costs, such a discretion must be exercised judicially and not capriciously (Oshlack v Richmond River City Council [1998] HCA 11; (1998) 193 CLR 72 at 81). ...

1. Given these principles, as we see no disentitling conduct of the Commissioner, and none was claimed by the appellant, we consider that it is appropriate to order the appellant to pay the Commissioner's costs as agreed or as assessed in accordance with the applicable costs legislation.

(1) The appellant is to pay the costs of the appeal of the respondent as agreed or assessed in accordance with the Legal Profession Uniform Law Application Act 2014 (NSW).

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.