Azzi v Commissioner of Police, NSW Police Force

RESPONDENT'S COSTS SUBMISSIONS

1. On 5 May 2016 the Respondent filed an application seeking an order for costs in these proceedings following the decision of Senior Member Scahill dated 20 April 2016 cited as Azzi v NSW Police Force [2016] NSWCATOD 47 ("Decision").
2. In summary, the Decision affirmed the Respondent's refusal of the Applicant's class1EF2ABD security licence. The proceedings exposed the Applicant's dishonesty to the Respondent to obtain a security licence, and his dishonesty to the Tribunal in seeking to have the refusal decision overturned.
3. There was no basis for the Applicant to pursue the proceedings knowing that the information he provided was false. Yet the Applicant did so. The Applicant had ample opportunity to correct the record, but he did not do so. The pursuit of the matter before the Security Industry Registry and this Tribunal was deliberate. The result was to cause expense to the Respondent (and ultimately the public), and an inconvenience to the Tribunal, other litigants and the public.
4. The relevant costs provision is s60(2) of the Civil and Administrative Tribunal Act 2013 ("CAT Act"), that states: 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.
5. In determining whether there are special circumstances to award costs, the Tribunal may have regard to a number of matters. These are listed at s 60(3) of the CAT Act. Relevantly, the Tribunal may consider: (c) the relative strengths of the claim made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance (g) any other matter that the Tribunal considers relevant
6. The Respondent set out the background to the matter and the salient findings in the Decision.

Background

1. The Applicant previously applied for a class 2A and 2D security licence on 23 August 2013. Under the provisions of the Security Industry Act 1997 ("SI Act"), the application required evidence of a minimum five years' relevant industry experience in relation to the Class 2A licence and three years' relevant industry experience in relation to the Class 2D licence. The Applicant provided a resume with his application, which did not provide any detail of work undertaken in the security industry ("first resume").
2. On 27 September 2013, the Respondent requested that the Applicant provide documentary evidence demonstrating his experience in the security industry. The Applicant responded on 3 October 2013, providing another resume ("second resume"). The second resume and documentary evidence again did not demonstrate the competencies and experience required for the Class 2A and 2D licences. The Respondent wrote to the Applicant on 22 October 2013 explaining the deficiencies.
3. In January 2014, the Applicant was interviewed by representatives of the Security Licensing and Enforcement Directorate ("SLED") of the NSW Police Force. The interview addressed a number of entries on the second resume which incorrectly described roles the Applicant said he had worked, and incorrect dates during which he had worked for certain employers. During the interview, the Applicant admitted that the second resume was inaccurate. He explained he had used pieces of other people's resumes, that he had been assisted in making the resume by friends and his wife, and that this accounted for inaccuracies. At the interview, the Applicant was put on notice of the false and misleading nature of the second resume.
4. On 23 March 2015, the Applicant applied to obtain subclasses 1EF2ABD security licence. The Applicant did not provide the necessary documentary evidence of relevant industry experience with his application.
5. The Respondent wrote to the Applicant on 25 March 2015 requesting he provide further information in support of his application. The Applicant was given 21 days to provide a resume demonstrating relevant industry experience. The Applicant did not comply, permitting refusal of the licence. Despite being out of time and with no explanation for the delay, the Applicant submitted a further resume ("third resume") on 9 July 2015. The third resume was very similar to the second resume, and thereby contained the same factual errors. The application was refused on 25 August 2015. The Applicant sought internal review on 1 September 2015, which also refused his licence on 19 September 2015.
6. On 30 September 2015, the Applicant applied to the Tribunal to review the Respondent's refusal decision.

The Proceedings

1. The substance of the Applicant's case to overturn the Respondent's refusal decision was to deny any wrongdoing in providing false information and suggest, dishonestly, it was all a mistake or misunderstanding.
2. The Applicant gave the following evidence at the hearing:
3. He knew at the time of his applications in 2013 and 2015 that a ground for refusal of the licence was the provision of false or misleading information. During the SLED interview in January 2014, he knew that the job titles in the second resume "weren't correct". The dates he had put in the resume were "rough", "he hadn't really thought about it", and he had "got his dates mixed up". Information he had provided in both second and third resumes was "false", and that despite changing the dates in the third resume from those in the second, it was "still incorrect".
4. Despite acknowledging the importance of providing accurate information, he had submitted his application twice "without looking at it".
5. The respondent submitted that remarkably, the Applicant in a display of contempt for honesty, blamed his wife, saying "his wife had prepared his resumes" and giving evidence in cross examination that he blames his wife for everything.
6. When he submitted the 2015 application, he thought the Commissioner would rely upon information provided in 2013. This was despite knowing the information previously provided in 2013 was false and misleading.

The Decision

1. Consistent with the evidence marshalled by the Respondent, the Tribunal made various significant findings:
2. The application of 23 March 2015 was not accompanied by the information required.
3. The Applicant did not provide the information or particulars requested on 25 March 2015. The Applicant had ample opportunity to provide correct information and he did not do so.
4. The Applicant did not provide an updated resume accurately setting out his experience.
5. The Applicant knew that the information provided in his third resume was false or misleading. Despite this, he submitted his third resume anyway (and defended it before this Tribunal).
6. Accordingly, the Tribunal was satisfied that it would refuse the Applicant's application on all grounds relied on by the Respondent:
7. The Applicant had failed to provide requested information.
8. The Applicant had not satisfied the Commissioner that he had competencies and experience approved by the Commissioner.
9. The Applicant had provided false or misleading information, and he knew it to be so.
10. That it would be contrary to the public interest to do so, considering the Applicant did not understand his responsibility to provide true and correct information.
11. The Applicant's application had no tenable basis in fact or law.
12. Under section 15(1) (c) of the SI Act, the Commissioner must refuse a grant of a licence without an updated resume accurately setting out the applicant's experience.
13. In the absence of the Applicant providing an accurate resume, the Commissioner had no discretion in refusing his licence. Despite giving the Applicant ample opportunity to provide one, he did not provide one - nor has he provided one since. In fact, the Applicant knew the information he provided was false.
14. Further, under section 15(2C) of the SI Act, the Commissioner must refuse a grant of a licence if the applicant has provided information that, to their knowledge, is false or misleading.
15. Given the admissions of the Applicant during the SLED interview in January 2014, the Commissioner was aware that the Applicant was providing information he knew to be false. The Tribunal was also satisfied that it was "apparent" that the Respondent knew that he had provided information that was false or misleading. Accordingly, the Tribunal also had no discretion in refusing the application on this ground as well.
16. As the Applicant knew what he provided was false, he is taken to know his Application had no tenable basis in fact or law.
17. The Applicant's application was frivolous, vexatious, misconceived and lacking in substance
18. The Tribunal was satisfied the Applicant knew that he was required to provide accurate information when submitting his application. Yet he provided his third resume knowing it to be false and misleading, and knowing that this was a ground for refusal. It is unbelievable that the Applicant would not have noticed the glaring inaccuracies in his second and third resumes.
19. The entire proceedings were vexatious and frivolous, given the Applicant could have provided an accurate resume and thereby avoided the mandatory provisions for refusal under the SI Act. Relevantly, the Tribunal found that: "It was open for [the Applicant] at a much sooner time, without bringing an application to NCAT, to correct the record as to the reality of his experience"
20. The Applicant did not do so, as he was intent on pursuing a false story despite knowing it was false.
21. During the proceedings, the Applicant told the Tribunal that he saw his application to NCAT as "an opportunity to correct" the inaccuracies in his application. But the Applicant "did not in his evidence before the Tribunal attempt to clarify the record and continued to refer to the false information as a "misunderstanding"'.
22. The proceedings became purposeless as a result of the Applicant's inability to furnish accurate or new information during the proceedings.
23. The Applicant wasted resources and time of the Tribunal and the Respondent. To not award costs in favour of the Respondent would be to reward the behaviour of the Applicant and send the wrong message to others who might think about engaging in similar conduct.

Other matters to be considered by the Tribunal

1. The Respondent submits a party's dishonesty in making an application and in evidence given to the Tribunal is a relevant matter to consider. It is noted that under section 88(1A)(a)(v) of the Administrative Decisions Tribunal Act 1997 ("ADT Act"), it was a relevant consideration in determining whether it was fair to award costs if a party had attempted to deceive another party or the Tribunal. There is no reason to conclude it is not a relevant matter under s60 (3) (g) of the CAT Act.
2. The Applicant engaged in behaviour before the Tribunal and with the Respondent that was deceitful and purposefully misleading. Given the background to the proceedings, the Applicant was entirely aware of the lies in his resume and was given many opportunities to correct them. Despite this, the Applicant conducted his case by maintaining his lies, dismissing them as a "little misunderstanding[s]".
3. The Applicant has shown no accountability. He blames others for the inaccuracies in his resumes for which he is ultimately and solely responsible. He blames his wife for writing his resume, and claims no responsibility for providing false information about Mr Farah. The Applicant shows no insight into his behaviour, suggesting that he is a person of uppermost integrity and saying that "it was not a problem with honesty, but a problem with oversight". Those statements are clearly incorrect.
4. An award for costs would discourage the Applicant as well as others from making applications to the Tribunal and wasting funds, public resources and time, when an application is based on false or misleading information.

The Respondent's costs

1. The affidavit of James Mattson discloses the Respondent's costs in the proceedings. The costs are charged at reduced rates obtained by the Respondent under tender. Predominantly, and where efficient, work was undertaken by a junior solicitor or paralegal. The Respondent utilised a solicitor to conduct the hearing, rather than engage counsel (thereby avoiding additional costs). The costs in making this application and preparing these submissions are also claimed.
2. The total costs claimed in these proceedings are $13,571.21. An order is sought that costs in that amount are paid by the Applicant.

The Applicant's Case

1. The Tribunal set a timetable for the filing of written submissions in the matter and advised the parties that the application for costs would be determined on the papers. The Applicant Mr Azzi did not provide any submissions to the Tribunal.

Costs provisions section 60 CATA

1. The relevant provisions dealing with the awarding of costs are set out in section 60 of the CATA. The general rule is that each party to proceedings is to bear their own costs: CATA s 60(1).
2. Costs may only be awarded if the Tribunal is satisfied that there are special circumstances warranting the award of costs: CATA s 60(2) - having regard to the matters set out in s 60(3) (a)-(g) of CATA.
3. Section 60 also defines the term "costs" and gives the Tribunal power to determine by whom and to what extent costs are to be paid.
4. Section 60 is set out below. 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. (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 Division 11 of Part 3.2 of the Legal Profession Act 2004 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.

Objects of CATA

1. To interpret the "special circumstances" provisions, it is relevant to consider the Objects of the CATA as set out in section 3 and the Guiding Principles to practice and procedure set out in section 36.
2. Section 3 of the CATA sets out the objects of the Act as follows (with the Tribunal's bolding): The objects of this Act are: (a) to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most Tribunal services in the State, and (b) to enable the Tribunal: (i) to make decisions as the primary decision-maker in relation to certain matters, and (ii) to review decisions made by certain persons and bodies, and (iii) to determine appeals against decisions made by certain persons and bodies, and (iv) to exercise such other functions as are conferred or imposed on it, and (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and (g) to promote public confidence in Tribunal decision-making in the State and in the conduct of Tribunal members.

Guiding Principles of Practice and Procedure

1. Part 4 of the CATA deals with practice and procedure in the Tribunal. Section 36, within Part 4, sets out the guiding principle to be applied to practice and procedure in NCAT. Section 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. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
2. The Tribunal's understanding of the interaction of these sections is that both the parties and their representatives and the Tribunal itself have an obligation in their conduct to act with economy and to focus on the primary issues between the parties.

Tribunal's consideration of the Applicants' application for costs

Were there special circumstances?

1. Section 60 (3) provides that the Tribunal may have regard to a catalogue of factors - including 60(3) (g) "any other matter that the Tribunal considers relevant." It is clear the factors set out in section 60(3) (a) to (g) are not meant to be exclusive or exhaustive of what might constitute "special circumstances".
2. A scan of case law shows that the concept of 'special circumstances" is known in the areas of criminal law, professional disciplinary matters in relation to costs, applications for security of costs and in the social security arena concerning beneficial exercise of a discretion.
3. In Topp's case, the AAT considered the meaning of the term "special circumstances" in relation to its use in section 1184K of the Social Security Act 1991 (Cth). Section 1184 allowed for the Secretary of the Department of Social Security to exercise a beneficial discretion "if it is appropriate to do so in the special circumstances of the case." Relying on a Full Federal Court decision in Beadle v Director General of Social Security [1984] AATA 176, the AAT considered that if something unfair, unintended or unjust had occurred which was out of the ordinary, this might constitute special circumstances justifying the exercise of the discretion - see Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 paragraphs 21 and 38-40.
4. The AAT's analysis in Topp's case also indicates that the determination of the existence of "special circumstances" vested a broad discretion in the decisonmaker.
5. Other common features of the case law on special circumstances are consideration of the tenuousness of the case brought by a party and the mode of conduct of the litigation.
6. Most recently the NCAT Appeals Panel in the matter of Obieta, considered that "special circumstances" in respect of costs in section 60, included the persistent prosecution of a weak (and unsuccessful) case through an appellate process- see Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38.
7. The Tribunal is satisfied from the respondent's uncontested submissions that none of the claims made by the Applicant had any tenable basis in fact or law.
8. The Tribunal is also satisfied that the Applicant's application to the Tribunal for review of the Respondent's decision was frivolous.
9. In the matter of Obieta the NCAT Appeals Panel commented in relation to an application for costs at paragraph [81]: "It does not follow that because some factors to which s 88(3) (now section 60) are made out that a costs order should then follow. It remains necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs."
10. In this instance, the Tribunal is satisfied that Mr Azzi's application was frivolous, lacking in substance and had no tenable basis in fact or law.
11. Further Mr Azzi's bringing of the application for review and his conduct of the case demonstrate a failure to observe his obligation as a party to the proceedings under section 36 of the CATA: "to facilitate the just, quick and cheap resolution of the real issues in the proceedings. "
12. The Tribunal is satisfied that the factors mentioned were of sufficient significance to justify a finding of special circumstances. The Tribunal is satisfied that special circumstances exist such that the Respondent should be awarded its costs as submitted. The Respondent's calculation of its costs was uncontested.

Tribunal's Orders

1. The Tribunal orders that Mr Azzi the respondent to the costs application, pay the costs of the applicant for costs in the amount of $13,571.21 within 28 days of the date of this decision - pursuant to section 60(4)(a) of the CATA. 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: 25 August 2016